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A.O. Odufuye V Jacob Adeoye Fatoke (1977) LLJR-SC

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:-

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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.”

And Section

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

Thus the only limitations placed on the Customary Court in the application and enforcement of customary law are that such customary law must not be repugnant to natural justice, equity and good conscience and must be compatible with written law for the time being in force in Western Nigeria. Those constraints do not arise for consideration in this appeal.

It has not been brought to the notice of this court any special rules, and we know of none, which since the promulgation and the coming into operation of the Customary Courts Law in 1958, have been specially formulated regulating the manner in which customary law must be established in Customary Courts. Indeed any such rules would, in our view, be most undesirable and probably counter-productive, if the natural development and growth of the customary law is to be encouraged and not retarded and stifled. We conceive it to be the duty of Customary Courts to declare what customary law is and to apply it to a given transaction.

The proceedings of Customary Courts are not conducted in strict conformity with the Evidence Act, 1945, Cap. 62, Laws of the Federation and Lagos, 1958. We must not therefore be taken as subscribing to the view expressed by the Western State Court of Appeal in its judgment in the case on appeal that “in the absence of direct evidence of customary law there were no facts of which the court” (meaning the Customary Court) “could take judicial notice under Section 73(1) of the Evidence Act in establishing custom” as the section of the Act therein referred to deals exclusively with facts which need not be proved.” And while respectfully agreeing with the observation of the Federal Supreme Court in Giwa v. Erinmilokun (1961) 1 All NLR 294 referred to by the Western State Court of Appeal that a solitary instance of the application of a custom to the facts of a particular case cannot entitle that custom to be judicially noticed, it is our view that the observation was directed principally to proceedings in the High Court.

In that case, the proceedings whereof were commenced in the High Court of Lagos, a claim to a piece of land was based on Native Law and Custom. The trial Judge held that the onus of proving the customary law pleaded was upon the family claiming the land in dispute and that they had not discharged that onus. He thereupon dismissed the claim. On appeal to the then Federal Supreme Court, it was held that native law and custom are matters of evidence to be decided on the facts presented before the courts in each particular case, unless it is of such notoriety and has been so frequently followed by the courts that Judicial Notice would be taken of it without evidence required in proof; and that in the absence of any reported case establishing the position of war Chiefs as regards grants by land-owning Chiefs, of which case, the trial Judge would be bound to take notice, the trial Judge was perfectly justified, on the evidence before him, in saying that the appellant family had not discharged the onus placed upon them. The appeal was dismissed.

It is noteworthy that here the Federal Supreme Court was saying, put positively, that if there had been any reported case establishing the position of war Chiefs as regards grants by land-owning Chiefs, the trial Judge would have been bound to take notice of it. This is important as it seems a complete justification for the approach of the President of the Egba Divisional Grade A Customary Court to the case on appeal as would appear shortly.

In dealing with what it described as “fundamental issue in the case” the Western State Court of Appeal said:-

“We are in no doubt that both the learned trial President and the learned Judge on appeal appreciated the fundamental issue in the case. It is 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. As already stated, the view of the learned Judge on appeal was that the appropriate native law and custom was not proved by evidence and we respectfully share the same view. The legal exposition as to proof of native law and custom in the judgment of the High Court appears to us unassailable.”

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With respect, we think the whole of the passage of the judgment of the Western State Court of Appeal set out above constitutes a misdirection in law. It was based on apparent misapprehension of the fundamental issue in controversy between the parties, which was decided by the Customary Court. From the recorded evidence, the issue decided by the Customary Court was not as to whether or not the plaintiff was entitled under customary law to repudiate the contract between him and the defendant. The issue was more direct. It was a straight one. It was rather whether or not in the circumstance disclosed by the evidence there was any sale at all of the house in dispute to the defendant. The Customary Court held that there was no sale of the house according to customary law and consequently entered judgment for the plaintiff.

What, it must be asked, was the evidence upon which the Customary Court based its decision That brings us to a consideration of the case as presented in the Egba Divisional Grade A Customary Court.

The case of the plaintiff, pithily and succinctly put, was this: that both he and the defendant are Yorubas; that in 1968 when he decided to move from Abeokuta to Ibadan, he also decided to sell his house; that there were then rent paying tenants in occupation of the house; that he orally offered to sell the house to the defendant at the price of (pounds)150 on condition that he must pay (pounds)120 by way of deposit and pay the balance of (pounds)30 in 8 days time; that possession of the house would only be transferred to the defendant after the full purchase price for (pounds)150 had been paid by him; that on payment of the full purchase price he would hand over to him all documents pertaining to the house in his possession; that after the payment of the deposit of (pounds)120, the defendant failed to turn up to pay the balance as he had promised to do; that after having waited for 25 days and the balance of (pounds)30, he reported the matter to a go between; that despite the intervention of the go between and his warning that unless the full price of (pounds)150 was paid to him, he would return the deposit already paid and would also refuse to transfer to the defendant possession of the house, the defendant still failed to pay to him the full purchase price; and that as a result he refunded to the defendant the deposit already paid to him and therefore demanded possession of his house.

In his evidence, the defendant said that the plaintiff sold his house to him for (pounds)150 but denied that any condition was ever imposed by the plaintiff on the sale. He also denied that there was any time fixed for the payment of the balance of (pounds)30. He said that immediately on the payment of the deposit of (pounds)120 he had entered into possession of the house and collected rents from the tenants in occupation of the house although up till the time of the action he had not paid the agreed purchase price in full. He agreed that the plaintiff had since refunded to him the deposit which he had paid to him at the time of the offer of the house to him to buy.

Thus on the evidence, the plaintiff and the defendant do not appear to have been ad idem even as to the terms upon which the house was offered for sale.

On a review of the evidence, the President said:-

“According to the plaintiff the oral agreement was that possession would be transferred to defendant on full discharge of the sum of (pounds)150 purchase price. All the documents pertaining to the house then in his possession would be handed to the defendant. The defendant, however, denied it saying that plaintiff never said that he would make document of transfer when the house balance was paid……..defendant also told this court that when he paid (pounds)120 he never promised to pay the balance of (pounds)30 at the end of October or at any other time at all. I disbelieve defence version on the issue of the purchase price, which without full payment to the plaintiff defendant thought it was a valid sale. This is just unthinkable under Native Law and Custom.”

On the basis of the view which the President took of the evidence before him, he held that since the defendant did not pay the full purchase price of the house, there was no valid sale according to customary law (to put it in modern terms). To re-inforce that declaration of customary law, the President quoted, with approval, a decision of the same Egba Court, then known as Egba Grade A Native Court, in Suit No.150/1948 – Surakatu Makinde v. Emmanuel Bankole – reported at page 331 of Lloyd’s book on Yoruba Land Law, 1962, the facts of which were similar to the facts of the case on appeal in hand.

In that case the defendant had agreed to buy and the plaintiff to sell a piece or parcel of farmland for 10(pounds). The defendant paid a deposit of 8(pounds) to the plaintiff and promised to pay the balance as soon as the plaintiff gave him a proper receipt. The defendant then entered into possession of the land and planted cocoa thereon but without having paid the balance of 2(pounds). The defendant having failed to pay to the plaintiff the balance of 2(pounds), the plaintiff refunded to him the deposit of 8 (pounds) and sold the farmland to another purchaser. When the defendant refused to give up possession of the farmland, the plaintiff took action against him in the Egba Grade A Native Court for possession of his farmland. The Egba Grade A Native Court declared that the sale to the defendant was not valid according to native law and custom because he had failed to pay the balance of 2(pounds), which would have made up the agreed price. It held that the subsequent sale to the new purchaser who had paid the full purchase price was valid according to native law and custom. It therefore granted the plaintiff possession of his farmland.

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The President of the Egba Divisional Grade A Customary Court, having examined the evidence in the case on appeal, held that the facts therein proven were similar to the facts established in Surakatu Makinde v. Emmanuel Bankole decided as long ago as 1948.

On the issue of possession asserted by the defendant, about which the court had expressed some reservations, the President said:-

“It would be seen therefore that as in the present case possession being claimed by the defendant, if it was in fact so, meant nothing where full payment of the agreed purchase price has not been made by the prospective purchaser under Egba Native Law and Custom.”

It is clear, therefore, that the President of the Egba Divisional Grade A Customary Court, having declared on the facts established by the evidence accepted by him that there was no valid sale of the house to the defendant according to Egba Customary Law, it follows as the night follows the day that the onus was on the defendant to justify his right to continue in possession of the house in dispute. The authority for that proposition is to be found in Oloto v. Administrator-General & Ors.(1946) 12 WACA 76 cited to us by Chief Abiodun Akerele, learned counsel for the plaintiff. That was a case in which native law and custom, that is to say, customary law, was considered. It was a claim by the owner of a piece of land for possession thereof; and it was held that where the owner of land brings an action to recover possession thereof, the defendants being in possession, the onus of proof of their right to possession lies on the defendants.

In the case on appeal, the defendant certainly failed to discharge that onus on the findings of the President of the Customary Court. Judgment therefore followed the event. The plaintiff was granted possession of his house.

There is no doubt whatsoever that the learned Judge on appeal erred in law when he held that the judgment of the Customary Court was based “on a native law and custom not established before the Customary Court by evidence.”

In view of the foregoing, we are firmly of the opinion that the Western State Court of Appeal came to a correct decision in law when, in allowing the appeal and setting aside the order for a new trial, it held that the learned Judge on appeal was wrong in law to have ordered a new trial by a new President. The Western State Court of Appeal was also right in law in restoring the judgment and order of the Egba Divisional Grade A Customary Court in Suit No. 91CV/69 dated 15th February, 1971, which decisions we now affirm.

This appeal fails. It is dismissed with costs to the respondent assessed and fixed at N118. Order accordingly.


Other Citation: (1977) LCN/1925(SC)

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