Ayuwe Longe V. Alice Adeyebi Ajakaiye (1962)

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TAYLOR, F.J

The plaintiff, Alice Adeyebi Ajakaiye, sued the defendant, Ayuwe Longe, in the Ilesha Lands and Civil Court, claiming the following:-The plaintiff is claiming from the defendant the possession of a land at Ifofin on which the defendant has put up her own building, being the parentage land of the plaintiff and,

(ii) An injunction to restrain the defendant from occupying the house henceforth.

The plaintiff’s case was dismissed, the Court holding that:-

The road path to Atakunmosa shrine is agreed to as the boundary between the land of plaintiff’s father and that of defendant.

At the hearing of the appeal before us, the exhibits used in the Courts below were not available, but by consent it was agreed that plan No. GB 1420, produced from the custody of Counsel for the respondent, was a copy of the plan used in the said Courts. It was further agreed that the blue dotted line beginning at a point midway between the two houses shown H.21 and H.21B and proceeding in a northerly direction up to point 5 truly represents the path referred to above.

The plaintiff-appellant, being dissatisfied with the Judgment, appealed to the Ilesha Grade “A” Customary Court of Appeal, which on the 4th March, 1959, made the following order, inter alia:-

That this case be reheard. Plaintiff/Appellant to file particulars within 7 days and a reply within 7 days thereafter. Cost of adjournment 7s to Court by the Plaintiff/Appellant…

Particulars of Claim and a Statement of Defence were then filed accordingly. I am not aware of any rule of law or procedure which empowers the president of a Grade “A” Customary Court of Appeal to make such an order. In part V of the Customary Courts Law, Cap. 31, Vol. 2 Laws of the Western Region of Nigeria, 1959, it is provided in s. 27 that:-

The practice and procedure of a Customary Court shall be regulated by rules of Court made under section 68.

The Customary Court Rules made by virtue of this provision is contained at page 77 of the same Volume of the Laws of the Western Region of Nigeria. Order XIX, (now Order XXIII) provides that:-

Where no other provision is expressly made by the Law or by these Rules, the provisions with respect to procedure, practice and process for the time being observed in Magistrates’ Courts (except in so far as those provisions may be inconsistent with the Law or these Rules) shall be adopted and followed in Customary Courts so far as those provisions may be appropriate and with such variations as the circumstances may require. Provided that no proceeding of a Customary Court shall be deemed to be invalid by reason only of failure to comply with any such provision.

There is no express provision in the said rules for the ordering of pleadings or particulars and reply, as the President of the Grade “A” Customary Court called them. Turning, therefore, to the Magistrates’ Courts Law, Cap. 74, Vol. 4 Laws of the Western Region of Nigeria, 1959, Part VII, s. 60(1) empowers the Chief Justice of the Region to make rules of Court regulating, inter alia, the practice and procedure of Magistrates’ Courts.

Subsection 3 provides that in the absence of such rules the provisions of the Magistrates’ Courts (Civil Procedure) Ordinance and the rules of Court made there under and the Rules of Court made under the authority of the Magistrates’ Courts Ordinance and the Magistrates’ Courts (Appeals) Ordinance in force on the 1st August, 1954, shall apply if not inconsistent with the provisions of the Law. There being no Rules of Court made by the Chief Justice under the aforesaid Law, the relevant provision for the purpose of this appeal is s. 47(l) of the Magistrates’ Courts (Civil Procedure) Act, Cap. 124, Vol. 4 Laws of Nigeria, 1948, as amended, and it reads thus:-