A.O. Odufuye V Jacob Adeoye Fatoke (1977)

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SIR UDO UDOMA, J.S.C. 

This is an appeal from the judgment of the old Western State Court of Appeal in which judgment of the High Court on appeal was set aside and the judgment of the Egba Divisional Grade A Customary Court restored.

In the Egba Divisional Grade A Customary Court Suit No. 91CV/69 the plaintiff, herein respondent, claimed against the defendant, herein appellant, possession of his house at Railway Station, Wasinmi via Abeokuta which the defendant was then occupying, possession whereof defendant had refused to deliver up despite repeated demands.

After due hearing of relevant evidence, the President of the court, in his judgment, held that according to Native Law and Custom, on the evidence, there was no valid sale of the house, the subject matter of the suit. He therefore entered judgment for the plaintiff and granted him vacant possession of the said house.

On appeal to the High Court, that judgment of the Egba Divisional Grade A Customary Court was set aside. The High Court ordered a new trial by the Egba Divisional Grade A Customary Court to be presided over by a new President. In setting aside the judgment, the learned Judge on appeal held that the judgment of the Customary Court was unsatisfactory in that it was based on “a Native Law and Custom not established before the Customary Court by evidence.”

The plaintiff then appealed to the Western State Court of Appeal, which allowed the appeal and set aside the judgment of the High Court on appeal and restored the judgment of the Egba Divisional Grade A Customary Court.

The defendant has now appealed to this court against the judgment of the Western State Court of Appeal. There were three grounds of appeal filed but, as argued together by leave before us, the complaint of the defendant may be formulated as follows:-

“The Western State Court of Appeal was wrong in law in setting aside the order of the High Court for a new trial and restoring the judgment of the Egba Divisional Grade A Customary Court when, as accepted by the Western State Court of Appeal, “the fundamental issue in the case was whether under Native Law and Custom upon the failure of the defendant to pay the balance of the purchase price, the plaintiff was entitled to repudiate the contract of sale.”

In his submissions, Chief Toye Coker, learned counsel for the defendant, pointed out, quite rightly, that the whole transaction was based on customary law. Both the sale and the purchase price were done orally and in consequence of the sale, part payment of the sum of pounds120 in the first instance was made and the defendant thereupon entered into possession of the house in dispute. While conceding that the defendant had defaulted in the payment of the final balance, learned counsel contended that even so the plaintiff was not entitled to repudiate the sale and that, in order to establish the right so to repudiate the sale, the onus was on the plaintiff to produce before the Customary Court evidence of customary law entitling him to repudiate the sale; and that he had failed to do so. Learned counsel therefore submitted that, in the absence of such evidence of customary law the proper order was the one made by the High Court on appeal for a retrial to enable such evidence to be produced before the Egba Divisional Grade A Customary Court or, at least, to enable the Customary Court to investigate and ascertain whether there is any such right of repudiation of a sale under Native Law and Custom. It was the contention of learned counsel that the Western State Court of Appeal was wrong in law to have set aside the order for a new trial made by the High Court on appeal and to have restored the judgment of the Customary Court in the circumstance.

These submissions are important and must be given serious consideration as they raise the whole question of the process of establishing customary law in Customary Courts and the growth and development of a well articulated corpus of customary law.

As stated, the case which has given rise to this appeal was heard in the Egba Divisional Grade A Customary Court. The claim was for the possession of a house situate on a piece of land within the jurisdiction of the Customary Court. The transaction took place also within the jurisdiction of the court and was undoubtedly based on customary law.

A Customary Court is specifically authorized and bound by law to administer customary law especially in land matters by virtue of Sections 19(a) and 20(1) of the Customary Courts Law, Cap. 31, Volume II of the Laws of Western Region of Nigeria, 1959, the provisions whereof are in the following terms:-

Section “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 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.”