Emily Malomo & Ors V. E. J. Olushola & Anor (1955)

LawGlobal Hub Judgment Report – West African Court of Appeal

Statute of Frauds to be specially pleaded—Supreme Court Ordinance Section Y1 (1)—gift of land by Native Law and Custom—proof by parol evidence.

Facts

This was an appeal on two consolidated actions to decide the ownership of premises in Lagos. The appellants’ Counsel did not dispute the finding of fact, but relied on questions of law.

He submitted that section 17 (1) of the Supreme Court Ordinance, which deals with the application of Native Law and Custom, stated that such law or custom shall not be incompatible either directly or bynecessary im plication to any law for the time being in force.

He argued that the words “any law” would include the statutes of general application which were in force in England on the 1st January, 1900 (applied to Nigeria by section 14 of the Supreme Court Ordinance), the Statute of Frauds being one of these Statutes.

He then submitted that as the gift of land here was made orally, under Native Law and Custom, and was not evidenced by any memorandum or note in writing, it could not be proved in Court,
(section 4 of the Statute of Frauds.)

This defence relying on the Statute of Frauds had not been specially pleaded at the trial and no application was made to amend the defence.

Held

A defence under the Statute of Frauds must be specially pleaded and as this was not done, this defence was not available to the appellants at the trial or on appeal. The Court also found that it was not the duty of the Court below to amend the defence without an application in that behalf.

Obiter

On the finding of fact in this case, parol evidence was properly admitted to prove the gift of land even if the provisions of the Statute of Frauds applied.

Note: The question as to the meaning of section 17 (1) of the Supreme Court Ordinance was not decided.

Appeal dismissed.