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21ST MAY, 1971

3PLR/1971/44  (SC)
















Lardner for the Plaintiff/Appellant.

Adekoya for the Defendants/Respondents.





COKER, J.S.C. (delivering the judgement of the Court):-This is an appeal against the judgement of the High Court Lagos sitting in its appellate capacity over the judgement of the Ikeja Divisional Grade “A” Customary Court. In the Customary Court the plaintiff was one M.O. Thomas Laniyan. He would hereafter in this judgement be referred to as the `plaintiff’. In the Customary Court the defendants were Alpheus Dadeowo, Esrom Oteje and Ebenezer Dadeowo, and they would hereafter in this judgement be referred to as `defendants’. The plaintiff’s writ against the defendants was endorsed inter alia as follows:-


“The Plaintiff claims against the defendants jointly and severally as follows:-


(i)      A sum of £500 (Five hundred pounds) as special and general damages for the defendants acts of trespass to the Plaintiff’s land aforesaid.


(ii)     An injunction restraining the defendants and their agents/ servants from further acts of trespass on the Plaintiff’s land.




Particulars of Special damages:


200 Cocoa trees destroyed at £2 per tree    £400.-.-.

General Damages  . .       . .       . .                 100.-.-.

Total                                                            £500.-.-.


Both parties gave evidence before the Customary Court and were indeed represented by learned counsel. After the hearing the Court visited the locus in quo and thereafter reserved its judgement. On 4th of April, 1968, judgement was given by the learned President of the Court who dismissed the plaintiff’s case. In the concluding portion of his judgement the learned President stated that:


“I have carefully gone through the matter, I am satisfied that the Plaintiff has failed to prove any part of his claim the action will therefore be dismissed”.


A perusal of the proceedings in the Customary Court shows clearly that the complaint of the plaintiff in the action was the uprooting and destruction of cocoa trees following a claim of title by one or the other of the parties over land also claimed by the other one.


The plaintiff appealed against the judgement of the Customary Court to the High Court, Lagos and elaborate grounds of appeal were filed and argued in his favour. At the hearing of the appeal before Sowemimo, J. (as he then was) as might be expected the appeal was vigorously opposed by learned counsel on behalf of the defendants. One of the additional grounds of appeal filed and argued without objection on behalf of the plaintiff (i.e. additional Ground of Appeal No. 3) dealt with the implications of a Deed of Conveyance covering the land claimed by the plaintiff and put in evidence by him at the trial before the Customary Court. In reply to the argument on behalf of the plaintiff learned counsel for the defendants argued before the High Court Lagos that with respect to that ground of appeal the learned President of the Customary Court had no jurisdiction to entertain any complaint based on that conveyance for the reason that section 20(1) of the Customary Courts Law Cap. 31 (Laws of Western Nigeria 1959), precludes him from exercising such jurisdiction.


In a reserved judgement Sowemimo, J. set aside the judgement of the Customary Court. It is not clear what final order was made by him on the appeal but as nothing turns on that pont in this appeal, we only set out verbatim that part of his judgement. He said:-


“I will set aside the judgement of the President as well as the award of costs because the whole trial was a nullity, the President having no jurisdiction to try the case. It is not possible to make any order of transfer to the Proper Court, that is the Chief Magistrate’s Court, because of the provisions of section 30 of the Customary Courts Law. In the result therefore, the appeal succeeds with costs assessed at 45 guineas costs inclusive (out of pocket expenses is £6-16s-Od).”


Both sides thereafter appealed to this court against that judgement but at the hearing before us the defendants withdrew their own appeal. We will at the end of this judgement make a final order concerning that appeal.


For the plaintiff the principal grounds of complaint on appeal before us were that the learned judge on appeal made no determination on the several issues of fact and of law canvassed before him and that in any case he was wrong to hold that the Customary Court had no jurisdiction to hear and determine the present case on the basis of the plaintiff’s claim being based on a Deed of Conveyance. Learned counsel for the defendants rightly conceded that the learned judge on appeal did not deal with any of the other issues of law and of facts argued before him. He further contended however that section 19 of the Customary Courts Law applied to the case and that the learned judge on appeal was right in the decision at which he had arrived.


There are many reasons why the appeal should succeed. Reliance for disparaging the jurisdiction of the learned President of the Customary Court was placed on section 20 of the Customary Courts Law Cap. 31. Sections 19 and 20(1) of the Customary Courts Law Cap. 31 provide as follows:


“19.   -Subject to the provisions of this Law, a customary court shall administer:-


(a)     the appropriate customary law specified in section 20 in so far as it is not repugnant to natural justice, equity and good conscience nor incompatible either directly or by necessary implication with any written law for the time being in force;


(b)     the provisions of any written law which the court may be authorised to enforce by an order made under section 24;


(c)     the provisions of any enactment in respect of which jurisdiction is conferred on the court by that enactment; and


(d)     the provisions of all rules and bye-laws made by a local government council, or having effect as if so made, under the provisions of any enactment and in force in the area of jurisdiction of the court.


  1. (1) In land matters the appropriate customary law shall be the customary law of the place where the land is situated.”


It is clear on the wording of these sections that both deal not with the jurisdiction of a customary court but with the law to be administered in the exercise of the jurisdiction of that court. Section 19(a) refers to the customary law which is specifically made applicable by section 20(1) and prescribes the limit on the application of such customary law. No argument whatsoever has been addressed to us with respect to the provisions of section 19(b), (c) and (d) we think that those subsections have nothing to do with the jurisdiction of the court. That is a matter encompassed by sections 17 and 18 of the Customary Courts Law. The clear provisions of section 20(1) are that the local customary law of a place is the appropriate customary law applicable in land matters in that area. The subsection says no more and it is clearly directed against the application of extraneous customary law. In his judgement the learned judge on appeal observed thus:-


“On the face of the writ of summons it is apparent that the claim was not based on customary law at all. On a perusal of the proceedings it would be seen that the plaintiff relied on a conveyance which is foreign to customary law as being his root of his title to the land which, he claimed, the respondents had trespassed upon. On the other hand, the respondents also put up the claim that the land belongs to them by the production of purchase receipts issued to them by the same vendors to the plaintiff. As a matter of fact one of the vendors of the plaintiff stated that the land which the plaintiff lays claim to actually belonged to the defendant. In any case, however, unless a case comes within the province of a customary law, in which the land is situated, a customary court would have no jurisdiction to apply any other law other than that which is set out in section 20 subsection (1) which I have referred to.”


It is difficult to understand why the learned judge on appeal had equated jurisdiction with the law applicable. We think it desirable to point out again that there is a difference of far-reaching importance between a lack or absence of jurisdiction and a use or employment of a wrong law or rule of law in the course of the exercise of such jurisdiction. If it is contended that in the exercise of the jurisdiction which he had indeed exercised the learned President had applied a law which is wrong, then his decision can be questioned on that ground on appeal, but certainly his jurisdiction cannot on that ground be challenged much less his decision be declared a nullity. This is the basis upon which the appeal before the learned judge was resisted by the defendants and decided by the learned judge. We do not doubt that the learned judge was in error of law when he accepted this contention and his own judgement must be set aside.


We have already expressed our views on sections 19 and 20 of the Customary Courts Law. The implications of these sections are simple. The case itself is one for trespass and injunction and there was no attempt throughout the hearing of the appeal before the High Court to suggest that those claims are not cognisable by the local customary law which by section 20(1) is the Customary Law applicable to the case in question. We observe also that it is for a party who complains about the application of a wrong law or rule of law to show that the law or rule of law applied was wrong; and a court of appeal is entitled to assume that the correct law or rule of law had been applied. Besides the learned judge on appeal had made no determination on the other issues raised before him on appeal presumably on the ground that his decision on jurisdiction had disposed entirely of the case. We have already held that the decision on jurisdiction could not be supported and these other issues on appeal must and do call for a determination by the High Court.


As the judge who heard the appeal is no more exercising that jurisdiction we shall send the case back for rehearing before another judge of that court.


In the event the appeal of the plaintiff succeeds and it is allowed. The judgement of the High Court Lagos (Suit No. IK/ICC/69 including the order for costs is set aside and we make the following orders:-


(1)     The appeal of the defendants Alpheus Dadeowo, Esron Oteje and Ebenezer Dadeowo to this court which was withdrawn at the hearing by their counsel is dismissed with costs;


(2)     The appeal of the plaintiff Thomas Laniyan to the High Court Lagos in hereby remitted back to that Court for hearing de novo by another judge;


(3)     That on their appeal to this court the defendants do pay the plaintiff costs fixed at 10 guineas;


(4)     That the defendants do pay the costs of the appellant in this court fixed at 35 guineas;


(5)     That costs awarded in the Customary Court should remain as ordered subject further to the next following order of this court;


(6)     That costs in the Courts below including those in the Customary Court should abide the determination of the appeal in the High Court Lagos.


Appeal allowed:


Case sent back for hearing before another judge.





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