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:-

(1) If on the day of hearing, both parties appear the plaint shall be read to the defendant and the Magistrate shall require him to make his answer or defence thereto, and, on such defence or answer being made, the magistrate shall immediately record the same and shall, except where the Court considers it necessary to order otherwise, proceed in a summary way to hear and determine the cause, without further pleading or formal joiner of issue.

(2) The Court may if it considers it necessary order the parties to state more fully their respective cases and may thereupon frame issues before hearing and determining the cause and in cases in which owing to their difficulty, complicated nature or the important points of law involved pleadings are required the Court shall adjourn the matter and report to the Chief Justice with a view to the cause being transferred to the High Court.

I have endeavored to deal at some length with this point because Learned Counsel for the Appellant, Mr. Olowofoyeku, says that the practice of ordering pleadings in some Customary Courts is common. Indeed a case to which our attention was drawn shows that the case on appeal before us is not an isolated instance: J.E. Edokpalor v. J.1. Idehen, (1961) W N.L.R. 11. The Customary Court, like any other Court, is bound by its rules of practice and procedure, and though in the case on appeal, and in the past, difficulties may not have arisen as a result of an order of the nature that is under review, they may very well arise in the future.

The President of the Ilesha Grade “A” Customary Court of Appeal dismissed the appeal and the substance of his Judgment is to the effect that the area edged pink on the plan, i.e. the whole of the land was originally owned by Lepeoje, who on the traditional evidence of the plaintiff, which was accepted by the President, was the maternal grandfather of the plaintiff’s father; that the defendant’s father was a “friendly stranger” who on his return home after the wards lodged with the plaintiff’s ancestor; that the path, to which I have already made reference, to use the words of the President:-

leading to Atakumosa shrines passed through the compound, and by sheer accident came to separate the houses occupied by the children of Ajakaiye and Longe (predecessors  of the parties to this appeal).

Finally, the President went on to say that by Ijesha Customary Law such an action against a stranger who had been permitted to reside on the land and his children after him for some 80 years cannot now succeed, for the plaintiff would be estopped by her conduct. He however went on to say that:-

If I have to make any declaration I will hold that the land, on the Eastern side of the path as I have traced earlier, is the property of the appellant and all the children of Ajakaiye who she must be taken to represent.

In other words, the defendant and her ancestors have for the past 80 years resided on the Western side of the path, and Ijesha Customary Law, though it acknowledges the plaintiff as the owner, will not allow her to dispossess the defendant of that portion; but as far as the Eastern side of the land is concerned, the plaintiff’s houses are on that area and the defendant has never claimed any interest, possessory or otherwise, in it; therefore, says the President, if I have to make a declaration of title, the plaintiff can have it to that area of land.

On appeal to the High Court, the Learned Judge allowed the appeal and entered Judgment for the appellant “in respect of that portion of land in terms of her claim”, holding inter alia that:-

The evidence led by the plaintiff/appellant clearly showed that the land in dispute forms a portion of a larger area originally acquired by plaintiff’s father and that the defendant’s ancestor came and lived with Plaintiff’s father. This was accepted by the Trial Court ……………………… Although the defendant’s ancestor was left in the old house, there is no evidence that the land was granted to him by the father of the plaintiff and I think it is wrong for the Court to have assumed that the occupation of defendant’s ancestor of that land has ripened into ownership…………………………………………………………………

I think that the Customary Court should have made a declaration in favour of the plaintiff in respect of the portion of land which was claimed by plaintiff, that is the land on which defendant has built and shown as lying between houses No. H.19 and H.21 on the plan.

With the greatest respect one can find no cause to complain about the portion of the Judgment, for it is clear from the Judgment of the President of the Ilesha Grade “A” Customary Court and the Learned Judge of the High Court that they are at one in their holding that the plaintiff is the owner of the whole area in dispute edged red. It is, however, when the Learned Judge goes on to say that Judgment is entered for the plaintiff in “terms of her claim”, obviously thinking that it was a claim for title pure and simple, that I am of the view that he erred. The terms of plaintiff’s claim have already been set out by me, and an order in those terms would result in the dispossession of the defendant and her family who have been on the land for the past 80 years and which eviction the President of the Customary Court found was against Ijesha Customary Law, It has been contended in this appeal by Mr. Omisore for the plaintiff that the latter was entitled to possession because of the misbehaviour of the defendant in pulling down the old Akodi and building a new one. Apart from the absence of any evidence that such an act constituted such “misbehaviour” under Native Law and Custom as would incur a forfeiture, there is the evidence of the plaintiff herself to the effect that the walls of the Akodi fell down, and this was about 29 years ago.

The difficulty that has arisen is in respect of the order to make in this appeal, for although the claim was for possession and injunction, yet, as the record showed, it also embraced the issue of title which was dealt with in all the three Courts below. In order to save further dispute between the parties and for the purposes of clarity, I make the following orders:-

That the claim for possession and injunction in so far as it relates to the area on the plan to the West of the path as already described by me in this Judgment is dismissed and the appeal succeeds to that extent.

2. That in so far as the case was fought out on the issue of title to the whole area edged red on the plan, the appeal fails for title is in the plaintiff.

3. As to costs in this Court and the Courts below, I would set aside the order in the High Court and order that the parties bear their costs in the Court of trial and in the High Court. That the plaintiff shall have her costs of the plan of £31-10s-0d made for the purpose of the rehearing in the Ilesha Customary Grade “A” Court. That the appellant shall have her costs in this Court assessed at 35 guineas.

Other Citation: (1962) LCN/1009(SC)