Kwaku Bonsi & Ors. V. Nana Antwi Adjena II & Ors (1940)

LawGlobal Hub Judgment Report – West African Court of Appeal

Native Law and Custom alleged by Plaintiffs-Appellants without having been previously set out in pleading.

Held : Where a party intends to set up and rely on Native Law and Custom it must be specifically alleged and pleaded. In this case the writ has disclosed no cause of action.

There is no need to set out the facts.

K. A. Bossman for Appellants.

A. W. Kojo Thompson for Respondent.

The following joint judgment was delivered :—

KINGDON, C.J., NIGERIA, GRAHAM PAUL, C.J., SIERRA LEONE AND BANNERMAN, J. GOLD COAST.

In this case the learned Chief Justice in the Divisional Court held that the writ disclosed no cause of action and non-suited the plaintiff on the pleadings without hearing evidence. The plaintiff now appeals to this Court contending that he ought at least to have been allowed to lead evidence to prove the Native Law and Custom upon which he desired to rely. But neither in his writ nor in Counsel’s opening did he allege any Native Law and Custom, and we cannot too strongly emphasise that where a party intends to set up and rely upon a Native Law and Custom it must be specifically alleged and pleaded. In this case if the rather vague Native Law and Custom suggested to us were set down in black and white it is clear that it would be so palpably absurd as not to merit serious consideration.

We concur with the view of the learned Chief Justice that the writ disclosed no cause of action.

The appeal is dismissed with costs assessed at £17 13s.