Belo Adedibu V. Gbadamosi Adewoyin & Anor (1951)
LawGlobal Hub Judgment Report – West African Court of Appeal
Declaration that defendant not entitled to be appointed Mogaji of House—Judgment based on memorandum on Land Tenure in the Yoruba Province—Native Law and Custom a matter of evidence—Memorandum not admissible.
The trial Court declared that the appellant was not entitled to be appointed Mogaji of the House of which the parties were members. The Judge had recourse to a document described as ” Mr. Ward Price’s Memorandum of Land Tenure in the Yoruba Province ” and based his judgment thereon.
The document was not put in evidence, but the Judge treated it as a legal text book or such authority as would warrant its citation in Court. Section 58 of the Evidence Ordinance (Cap. 63) provides that native law and custom may be proved by evidence or by manuscript recognised by natives as a legal authority. The evidence called by both parties was inconsistent with the Judge’s finding.
The memorandum was not shown to be recognised by natives as a legal authority and should not have been taken into account. The Judge not being satisfied that either party had proved his claim was not justified in making a declaration based on a conception of native law and custom to which neither party subscribed. The Court set aside the judgment and substituted therefor a judgment of non-suit.
Appeal allowed. Judgement of non-suit entered.