Adeyemi Ogunnaike V. Taiwo Ojayemi (1987)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C.

The matter which gave rise to these proceedings originated in the Ijebu Remo Divisional Grade ‘B’ Customary Court, Shagamu, almost twenty years ago. In that Court, the respondent in this appeal was the 1st plaintiff.

The second plaintiff was one Ogunkoya Soneye who, because of an illness, had to withdraw from the case at an early stage of the trial. The plaintiffs’ writ of summons, which was issued on behalf of themselves and the members of Tuona Family of Ijokun, Shagamu, reads as follows:-

“The plaintiffs claim against the defendant is for declaration of title to that piece or parcel of land at Sabo, Offin, Shagamu, Ijebu-Remo.

2. The piece of land at Sabo, Offin, Shagamu is bounded on its four sides as follows:-

(1) By Adekoya Adeoku’s landed property

(2) By Erinwole Family landed property

(3) By Ogunsanwo Tumulus landed property

(4) By Soyemi Abawo’s landed property

3. The sum of 100 (One Hundred Pounds) being special and General Damages for trespass, wilful and unlawful damages to the Kolatrees and Cassava trees on the plaintiffs land at Sabo, Offin, Shagamu during the month of March, 1967.

Particulars of Damages

Special Damages:

5 Kola-nut trees at the

rate of N2 per tree 10
100 Cassava trees at
the rate of 5/- per

cassava trees 25:
35:
General Damages 65::-
100:

Value of the land is 100: d

Dated this 6th Day of April, 1967.”

The suit was instituted against the present appellant and one Jinadu Obalesi, the Olorilu of Ijokun, who was reported dead before the commencement of hearing.

The plaintiffs’ case was that their ancestor, Tumulu, was the original owner of the land in dispute. Tumulu died about 100 years ago and was survived by four children (1) Onate (2) Ojumito (3) Otunowo and (4) Tuona.

After the death of Tumulu, his children continued to farm the land. The land was eventually partitioned into four and one of the portions was inherited by Tuona, who was the 1st plaintiff’s grandmother. The 1st plaintiff, together with Soneye, the 2nd plaintiff’s father, and two other children survived Tuona who died about 40 years ago. It was in evidence that when Tuona was alive she planted several crops on the land and after her death, her children continued to farm the land without any disturbance. It was the plaintiffs’ case that all of a sudden they found the 1st defendant on the land. It was claimed that the 1st defendant had destroyed the plaintiffs’ cassava plants and other crops on the land and hence the action as per the writ of summons.

The defendant’s case was that the land in dispute was in fact a portion of the communal land of the Ijokun Community, and that it was the 2nd defendant – the Olorilu of the Communitv, and his Chiefs, who, as the accredited representatives of the Ijokun Community, allotted the land to him. He claimed that the land was granted to the section of his family, the Ogunnaike family of Ogunfowora compound in 1946 after they had paid the customary fees. He said that it was in 1946 that the land was demarcated – measuring 300ft by 600ft, and that it was surveyed in 1956 and was eventually conveyed to him by the Olorilu and his Chiefs in 1963.

At the trial in the Customary Court, Shagamu, each party gave evidence and called witnesses in support of their respective claims. At the conclusion of hearing, the learned trial President of the Customary Court reviewed the whole of the evidence adduced by the parties and their witnesses gave careful consideration to the submissions made by counsel on behalf of the parties and came to the conclusion that the plaintiffs had established their claim. She concluded her judgment as follows:-

“From the evidence before the court including exhibits “A” -“C”, I am of the opinion that the plaintiff has proved her case as required by law.”

With regard to the defendant’s contention that the land in dispute was the communal land of Ijokun Community, she held as follows:-

“I disbelieve the evidence of the defendant and his witnesses that the land in dispute belongs to Ijokun community. Although the defendant asserted that the Olori-ilu and chief alloted the land to him and that the Olori-ilu alloted it to him as the accredited representative of Ijoku people, the defendant has not supported this by at least calling a chief to give evidence to this effect even if the “Olori-ilu” had died. He who asserts must prove. It is not in the evidence of the defendant that all the chiefs in Ijoku have died.”

Having come to the conclusion that the plaintiff had established her claim, the learned trial President gave judgment in her favour, awarding her the declaration sought with 70.00pounds special damages for trespass.

The defendant (now appellant) being dissatisfied with the decision of the learned President of the Customary Court, appealed to the High Court on four grounds of appeal. The learned appellate Judge of the High Court, Coker, J, (as he then was) heard all the arguments and submissions of the parties and came to the conclusion that there was merit in the appellant’s first ground of appeal which complained that “the decision is wrong in law in that the learned trial President did not evaluate the evidence and the contents of the exhibits tendered before her and thereby came to a wrong conclusion.” He held in his judgment:-

(1) that there were certain admissions made by the plaintiff and her witnesses at the trial about the title of the Ijoku Community which admissions the trial President failed to consider, and which, if considered, would have tilted the case in favour of the appellant,

(2) that the trial President failed to give consideration to the content of Exhibit ‘C’ which he (the appellate Judge) held had discredited the plaintiff/respondent, and

(3) that the learned trial President omitted to give consideration to the combined effect of sections 45 and 54 of the Evidence Act in relation to the judgment in Exhibit ‘C’.

He concluded that as the respondent had failed to prove the title she claimed, her case should have been dismissed. He therefore allowed the appeal, set aside the judgment of the trial Customary Court and made an order dismissing the respondent’s claim. The respondent, being dissatisfied with that decision appealed to the Court of Appeal, and by a unanimous decision, that Court allowed the appeal. The decision of the High Court was set aside and that of the trial Customary Court restored. This appeal is against that decision. The appellant has filed four grounds of appeal and the first ground reads as follows:-

“(i) The Federal Court of Appeal erred in law when it held that sections 45 and 54 of the Evidence Act were not rightly applied by the High Court in its appellate jurisdiction because there is provision in the Customary Courts Laws for their rules of evidence.

Particulars of Error

(a) The submission made to the Court of Appeal by the appellant was to the effect that section 1(4)(c) of the Evidence Act excludes the application of the law to judicial proceedings before “native courts.”

(b) There was no evidence before the court that Customary Courts are native courts.

(c) The rules of and practice of Customary Court (Cap. 31) Laws of Western Region of Nigeria applicable to the case do not oust the provisions of the Evidence Act; moreso as the presiding judge was a legal practitioner and parties were represented by legal practitioners who throughout the proceedings applied the rules of evidence as provided in the Evidence Act.”

The main submission of learned counsel for the appellant, Otunba Awopeju, in respect of this ground of appeal is that even if it is conceded that the provisions of S. 1(4)(c) of the Evidence Act preclude the application of the Act to judicial proceedings before native courts neither counsel for the Defendant/Respondent in his submission to the Court of Appeal nor the Court of Appeal in its judgment was able to establish that a native court was the same as a customary court.

In his reply, Mr. Adeola counsel for the respondent, submitted that it was not necessary to establish by evidence that a native court was the same as a Customary Court as the point had been clarified by Justice T.A. Akinola Aguda in his book “Law and Practice Relating to Evidence in Nigeria.” He referred us to Chapter 2, page 21 at paragraph 2.02 of the book.

Now in my view, the clear wording of the provisions of S.1(4)(c) of the Evidence Act leaves no room for any doubt that the provisions of the Act do not apply to judicial proceedings before native courts. It reads

“(4) This Act shall apply to all judicial proceedings in or before any court established in the Federation of Nigeria but it shall not apply-

(a) ……………………………………….

(b) ……………………………………….

(c) to judicial proceedings in or before a native court unless the Governor in Council shall by order confers upon any or all native courts in the State jurisdiction to enforce any or all of the provisions of the Act.”

As there is no evidence to show that the Act was made applicable to the trial Customary Court when it gave its judgment, I am of the view that the Court of Appeal was right in their decision that the appellate High Court was in error to have applied the provisions of Sections 45 and 54 to the case.

With regard to the argument as to whether a native court is the same as a customary court, I think the provisions of S.72(1) of the Customary Courts Law, Cap 31, Vol.2 of Laws of Western Region of Nigeria 1959 provide the answer. It reads as follows:

“72(1) All native courts (including native courts of appeal) established under or in pursuance of the Native Courts Ordinance or the Native Courts (Colony) Ordinance, or deemed to have been so established, by warrant in force immediately before the commencement of this Law, shall be deemed to be customary courts established under or in pursuance of this Law.”

Another submission made in respect of this ground of appeal is to the effect that since the presiding Customary. Judge was a legally qualified person, and the parties were represented by legal practitioners, there was nothing wrong if the provisions of the Evidence Act were applied to the proceedings. This submission, in my view, overlooks the fact that a customary court can only administer the provisions of an enactment in respect of which jurisdiction is conferred on it by the enactment. See S.19(c) of the Customary Courts Law. There is, in my view no substance in this ground of appeal.

The second ground of appeal reads:

“The Court of Appeal erred in law when it held that the High Court applied the findings in Exh, ‘C’ and ignored those in the present suit when in fact what the Judge of the High Court held and found was that the learned President of the Customary Court failed to evaluate correctly the evidence before her and thereby came to a wrong conclusion on the totality of the evidence before her including the effect of exhibit ‘C in relation to the other evidence which showed that the land in dispute belonged to the Ijokun family or people thus rendering the land in dispute a Communal land with the usual incidence of such a tenure as found in the judgment in Exhibit ‘C’ against which there was no appeal.”

This ground of appeal is about the way the appellate Judge made use of Exhibit C. However before we go into that, I think it is necessary for me to say a word or two about the exhibit.

Exhibit ‘C is the judgment and proceedings of an action instituted by the respondent herein and her brother-Michael Soneye against the 2nd defendant in this case – Jinadu Onalesi (the deceased Olori-ilu) and one Akintola Ojo in a Grade ‘B’ Customary Court. In that case the plaintiffs” claim was that a parcel of her family land, which had been allotted to her by Jinadu Onalesi and his Chiefs, was subsequently sold to Akintola Ojo. Judgment was in that case given in favour of the respondent and her brother. It should, however, be noted that the parcel of land in Exh. ‘C’ was different from the one in dispute in this case.

At the trial the respondent was cross-examined as to what she had said in Exh. ‘C’ regarding the communal ownership of Ijokun land by the members of that community. and in particular, whether or not she had said that she bought the land in dispute in that case from the Olori ilu. She denied the suggestion. Almost at the tail end of the case, the judgment and proceedings of the previous suit were tendered and admitted as Exhibit ‘C’

In his Judgment reversing the decision of the trial customary court, the learned Appellate Judge made reference to Exh. ‘C as follows:-

“The Plaintiff claimed the land in dispute forms portion of her family land and that she won a suit against the 2nd Defendant in respect of an adjoining plot of land. She denied the suggestion that the Olori Ilu allotted that land to her and her brother Michael. The Court accepted her evidence which was completely different from what the judgment said. The judgment (Exh. ‘C’ discredited her evidence and supported the defence.

……………………………………

This judgment, even if it could not have been pleaded as estoppel per rem judicatam, is relevant and significant. In effect, she is now alleging that the land at Ijoku-Sabo, including the adjacent land which was in dispute in the earlier case, is not part of Ijoku Communal land, contrary to the finding of the Court in the earlier case. For in that case she postulated or accepted the title of Ijoku Community in respect of that land.

In the present case she (sic) relied on an entirely different root of title. Any reasonable tribunal ought to have inferred that Plaintiff could not be speaking the truth when she denied in her evidence that 2nd Defendant, as the Olori-Ilu of Ijoku had no power to grant land at Ijoku Sabo Sagamu when the basis of her success in the earlier suit to an adjoining piece of land was the title of Ijoku Community, whose trustees were the 2nd Defendant and his chiefs.”

The main submission of learned counsel for the appellant in this ground of appeal was that the Court of Appeal erred in law when It held that the Appellate Judge regarded Exhibit ‘C’ as the declaration of custom governing Ijoku Community land. He contended that what the Appellate Judge said was that the trial court should have properly considered and evaluated Exhibit ‘C’ before arriving at a decision. I am unable to accept these submissions.

A careful perusal of the judgment of the High Court shows clearly that the Appellate Judge was of the view, that Exhibit ‘C’ had proved customary law of Ijokun ownership of land. He was also of the view that the Judgment (Exh. ‘C’) had discredited the respondent as a witness because of the conflict in her evidence in this case and her earlier testimony in Exhibit ‘C’.

Now it is settled law that the evidence of a witness taken in an earlier proceeding is not relevant in a later trial. except for the purpose of discrediting such a witness in cross-examination and for that purpose only.

In Ariku v. Ajiwogbo (1962) 1 All N.L.R. (Part 4) p.629 at p.631, Ademola, C.J.F. delivering the judgment of the Supreme Court, stated the law as follows:-

“This Court has frequently directed attention to the practice now not uncommon, of making use of evidence of a witness in another case as if it were evidence in the case on trial. As was pointed out in Alade v. Aborishade 5 F.S.C. 167 at p.171, this is only permissible under Section 33 or 34 of the Evidence Act. Where a witness in a former case is giving evidence in a case in hand his former evidence may be brought up in cross-examination to discredit him if he was lying, but evidence used for this purpose does not become evidence in the case in hand for any other purpose. There are also pre-requisites to the making use of the former testimony of a witness: for example, his attention must be called to the former case where such evidence was given and he should be reminded of what he had said on that occasion.”

In this case at the trial, the respondent was never confronted with Exhibit ‘C’ when she gave evidence and neither was her attention drawn to any specific portion of her testimony in Exhibit ‘C’. In fact this could not have been possible as Exhibit ‘C was tendered by D.W.3 towards the end of the case after the respondent and her witnesses had closed their case. In my view the Court of Appeal’s criticism of the Appellate Judge’s use of Exhibit ‘C’ was justified. Accordingly this ground of appeal also fails.

The third ground of appeal is that “The Court of Appeal erred in law when it held that admissions found by the High Court were not admissions in law and if they were, they were satisfactorily explained by the Plaintiff/Appellant/ Respondent in notwithstanding the contradictions in the evidence of the Plaintiff and her witnesses on the ownership of the land in dispute.”

Now at p.49 of the record, the Appellate Judge quoted some portions of the respondent’s evidence and that of the respondent’s first and third witnesses which he said were relevant admissions which the trial court completely ignored. It was his view that if these admissions had been considered by the Court, the outcome of the case would have been different. Now the main controversy between the parties in this case was whether the parcel of land in dispute was the family property of the respondent, as the respondent claimed, or whether it was a portion of the communal land of Ijokun Community as the appellant contended. With regard to this crucial point, the testimony of the respondent is as follows:-

“As far as lands are concerned, Ijoku Community do not do things in common under the head of Ijokun. The head of Ijokun Community is only there to settle dispute and cannot be head of my fathers property. Ewusi is the head of Makun. The head of Ijokun is Olori ilu. No head of a town within Shagamu can sell anybody’s family property. Olori ilu Ijokun cannot give any order on my father’s property. Everyone from Ijokun owns Sabo. Olori Ijokun and the Chiefs are not vested with the Ijokun Community land.”

The first plaintiff’s witness, Lamidi Ogunsanwo said that the land in dispute belonged to Tuona, the plaintiff’s grandmother. I am unable to find in the record where this witness said that the land in dispute was the communal land of Ijokun. With regard to the power of Olori ilu over land in the area, he said under cross- examination:-

“The Olori ilu Ijokun allocates the land of his family to those who want it. My family allocates our own family land to those who want it.”

And the third plaintiff’s witness – Bello Olusoga Awofala testified as follows:-

“I know the land in dispute. I always pass by it to my farm. The land in that area is called Ijokun farm-land but the land in dispute belongs to Tumulu. The plaintiff Ojayemi – is Tumulu’s grandchild. My farmland is next to that of the 2nd plaintiff witness whose land is next to the land in dispute. I have been on my own land for the past fifty years and that is how I come to know the land in dispute………..

My own farmland was allotted to me by my family called Adeoku. No one has ever challenged my right on my land.

There is an “Olori-Ilu” at Ijokun. One Jinadu Onalesi was an “Olori-Ilu” of Ijokun. He was the last “Olori-Ilu” of Ijokun. Jinadu Onalesi was not a member of my family. Jinadu Onalesi as the Olori-ilu could not have any control over my land, the control is in the family. I am seventy-two years old. I have been living in Shagamu all my life.”

Now an admission is a statement, oral or written (expressed or implied) which is made by a party to civil proceedings and which statement is adverse to his case. It is admissible as evidence against the maker as the truth of the fact asserted in the statement. See Seismograph Service (Nigeria) Ltd. v. Chief Keke Ogbenegweke Eyuafe (1976) 9 at 10 SC.135 at p.146.

In this case I am unable to find in any of the portions of the respondent’s evidence and that of the two witnesses reproduced above any statements which can be regarded as admissions on their part relating to the crucial issue in controversy between the parties. I am therefore in complete agreement with the Court of Appeal that the Appellate Judge misdirected himself in law when he held that the respondent and her witnesses made some admissions which the trial court did not consider. Again I see no substance in this ground of appeal.

The fourth and last ground of appeal reads:-

“The Federal Court of Appeal misdirected itself on the evidence and therefore erred in law when it held that the defendant should have called an Ijokun chief to prove the customary law of Ijokun

when in fact such a custom had been pronounced in the judgment in Exh. ‘C’ and indeed P.W.2 gave evidence of such custom.”

In my view, the appellant’s contention that the whole of Ijokun was owned by the community at once raised the issue of Ijokun customary law, which is a question of evidence to be decided on the facts before the court. Both the trial court and the Court of Appeal held, and I agree with them, that the onus was on the appellant to prove the particular custom.

It was the submission of appellant’s counsel that the evidence given by Jimoh Shittu (P.W.2) who was holding a Power of Attorney for the Olori-llu and his chiefs, and who gave evidence in Exhibit ‘C’, sufficiently established Ijokun customary law relating to communal ownership of land. I am unable to accept this submission. In the first place even if Jimoh Shittu gave such evidence in the earlier suit, it would not be evidence in this case. See Ariku v. Ajiwogbo (Supra) and also Njoku v. Erne (1973) 5 S.C. 293 at p. 303. Secondly there is nothing in the record in this case to show that Jimoh Shittu was in fact regarded by the trial court as an expert who was specially skilled in Ijokun customary law. The finding of the trial court was that the appellant had failed to prove that the land in dispute belonged to Ijokun Community. That finding, in my view, was amply supported by the evidence before the court, and the Appellate Judge should not have interfered with it. This ground of appeal also fails.

All the grounds of appeal argued having failed, the appeal itself fails and it is hereby dismissed. The decision of the Court of Appeal, reversing that of the Appellate High Court, and restoring that of the trial customary court, is hereby affirmed with N300.00 costs to the respondents.

OBASEKI, J.S.C. (Presiding): This matter started its journey in the Ijebu Remo Divisional Grade ‘B’ Customary Court in April, 1967 about 20 years ago. In its journey to this Court, it was dealt with by the High Court in its appellate jurisdiction and then the Court of Appeal.

The claim filed before the customary court was a straight forward claim for declaration of title to that piece or parcel of land at Sabo, Offin Sagamu, Ijebu Remo, and 100pounds special and general damages. As there are no provisions for filing pleadings in the customary court Rules which regulate practice and procedure in the customary courts, pleadings were not filed. The President of the court then proceeded to hear the matter without pleadings. After hearing the testimony of the parties and their witnesses, the learned President granted the declaration of title prayed for and awarded 70pounds special damages.

Aggrieved by this decision, the defendant took the matter on appeal to the High Court, Ijebu-Ode. Coker, J. (as he then was) heard the appeal to the High Court. He allowed the appeal and ordered the claims to be dismissed.

In the concluding portion of his judgment, Coker, J. (as he then was) said:

“Whichever way one looks at that case (Exhibit C), it would be found to be relevant to the issue before the court even if it had not the effect of estoppel either by record or by conduct, it discredits the plaintiff’s case ……… lends support to the defence that plaintiff acquired title to an adjoining parcel of land through the Ijokun Community and not through Tumulu. See section 45 of the Evidence Law. In my view, therefore, the trial President did not direct her mind to the admission of the plaintiff and her witnesses to the fact that the land is part of Ijokun community land. It also ignored the combined effect of sections 45 and 54 of the Evidence Act in relation to the judgment in suit No. 260/61 – Grace Solarin and Michael Soneye v. Imodi Onalesi and Another. It was not the case of the plaintiff/respondent that the land in dispute was part of the land granted to her by the Trustees of the Ijokun community since she has failed to prove the title which she claimed, her suit ought to have been dismissed. See Kodilinye v. Mbanefo Odu 2 WACA 336.”

The plaintiff being dissatisfied appealed to the Court of Appeal. The Court of Appeal (Coram, Uche Omo, Dosunmu and Omololu-Thomas, JJCA.) in a well considered judgment unanimously allowed the appeal and restored the decision of the learned trial President. Omololu-Thomas, reading his lead judgment, (concurred in by Uche Omo and Dosunmu, JJCA) in the closing paragraphs said:

“On issue 1, as to whether the appellate judge ought not to have applied sections 45 and 54 of the Evidence Law; Section 1(4)(c) of the Evidence Act excluded the application of the law to judicial proceedings before “native courts” It reads:

‘(4) This Act shall apply to all judicial proceedings in or before any court established in the Federation of Nigeria but it shall not apply

(c) to judicial proceedings in or before a native court unless the Governor-in-Council shall by order confer upon any or all native courts in the state jurisdiction to enforce any or all of the provisions of this Act.

………………………………………………..

The said sections 45 and 54 of the Evidence Law were not rightly applied in the High Court in the exercise of the court’s appellate jurisdiction because there is provision in the customary court’s law for their rules of evidence.

In relation to the facts of this case, they were wrongly invoked.

What the appellate judge regarded as admissions were not admissions, the inferences he drew do not appear to have been rightly drawn. Even if they were admissions, they were fully explained and the explanations were not disproved. The evaluation of the facts by the President seems quite adequate to sustain the judgment. In view of his findings, he was right to have ignored Exhibit C since it did not create estoppel ….

……………………………………………………

The appellate judge appeared to have erred when he proceeded in effect to apply the findings in Exhibit ‘C’ and ignore those in the present suit, and therefore came to a wrong conclusion. In my view, the findings of the trial President ought not to have been disturbed.”

Against the decision of the Court of Appeal, the defendant has now appealed to this Court. Briefs of arguments in this appeal have been filed and served by the parties to this appeal.

The appellant failed to formulate in his brief the questions or issues for determination as required by the rules. His counsel settled his arguments on the grounds of appeal seriatim. The questions for determination raised in the grounds are:

(1) Whether the Customary Courts are precluded from administering the Evidence Act or law by section 1(4)(c) of the Evidence Act or Law.

(2) Whether Exhibit ‘C’ could be or was used to discredit the plaintiff’s evidence in the proceedings before the learned President in the Customary Court Grade ‘B’;

(3) Whether the appellate judge, Coker, J. regarded and accepted Exhibit ‘C’ as proof of custom governing Ijokun community land ownership or tenure;

(4) Whether the admissions made by the plaintiff and her witnesses were satisfactorily explained or whether the admissions amounted in effect to an acceptance of defendant’s title that the land in dispute belongs to ljokun community; and

(5) whether sections 45 and 54 of the Evidence Act were applicable to this matter.

These questions have been given detailed consideration in the judgment just delivered by my learned brother, Kawu, JSC, the draft of which I had the privilege of reading in advance. I agree with his opinions on the issues raised in this appeal. I will however elaborate more on the erroneous application of sections 45 and 54 of the Evidence Act.

The question whether the provisions of the Evidence Act governs the proceedings in the customary court is paramount and the determination of that issue will be vital to the determination of this appeal. It is therefore necessary to examine the provisions of section 1(4) of the Act which deals with its application. Section 1(4) of the Act reads:

“This Act shall apply to all judicial proceedings in or before any court established in the Federation of Nigeria but it shall not apply to

(a) proceedings before an arbitrator or

(b) to a field general court martial or

(c) to judicial proceedings in or before a native court unless the Governor-in-Council shall by order confer upon any or all native courts in the region jurisdiction to enforce any or all of the provisions of this Act.”

The Evidence Act (formerly Evidence Ordinance) came into force in 1945. At that time and until early 1958, there were native courts established all over the Western Region (which has now been split into Ogun State, Oyo State, Ondo State and Bendel State). These native courts were abolished in 958 and in their places customary courts were established pursuant to the customary court Law Cap. 31 Laws of Western Nigeria 1959. The practice and procedure in these courts are regulated by Rules of Court. Section 27 of the Law reads:

“The practice and procedure of a customary court shall be regulated by rules of court made under section 68”

The Customary Court Rules were duly promulgated and Order X deals with Evidence. Section 37 of the Customary Courts Law gives power to the court to summon witnesses to the court to give evidence. It reads:

“Subject to the provisions of any rules made under section 68 every customary court shall have power to summon before it for the purpose of giving evidence any person within the area of the jurisdiction of the court and any person outside such area but within the Region.”

What law does the customary court administer Section 19 deals with the law to be administered by the Customary Courts. These are customary law and statute law which they are given jurisdiction and authority to administer and enforce. Section 19 reads:

“Subject to the provisions of this law, a customary court shall administer:

(a) the appropriate customary law specified in section 20 in so far as it is not repugnant to natural justice, equity and good conscience nor incompatible either directly or by necessary implication with any written law for the time being in force;

(b) the provisions of any written law which the court may be authorised to enforce by order made under section 24;

(c) the provisions of any enactment in respect of which jurisdiction is conferred on the court by that enactment; and

(d) the provisions of all rules and by laws made by a local government councilor having effect as if so made under the provisions of any enactment and in force in the area of jurisdiction of the court.”

Thus customary courts cannot therefore proceed to apply the provisions of any statute law unless given jurisdiction to apply it.

It is at this juncture desirable to examine the relationship between the Native Courts and the Customary Courts as spelt out by the law. Section 72 of the Customary Court Law saved existing native courts and changed them to customary courts deeming them to be customary courts. It reads:

“(1) All native courts (including native courts of Appeal) established under or in pursuance of the Native Courts Ordinance or the Native Courts (Colony) Ordinance or deemed to have been so established by warrant in force immediately before the commencement of this law shall be deemed to be customary courts established under or in pursuance of this Law.

(2) The persons who immediately before the commencement of this Law were duly appointed members of a court to which sub- section (1) of this section applies shall with effect from the commencement of this Law be deemed to be members of the Court appointed in accordance with the provisions of this Law and to have taken and subscribed the oath in accordance with section 8.

(3) The jurisdiction of a court to which subsection (1) of this section applies shall be that set out in the Second Schedule according as the court is graded Grade A, Grade B, Grade C or Grade D.

Section 73 of the Law dealt with pending cases and matters in the Native Court and provided that they be continued in the customary courts. 11 reads:

“Subject to the provisions of this section, any cause or matter begun or pending immediately before the commencement of this Law in any native court constituted under the Native Courts Ordinance or the Native Courts (Colony) Ordinance, whether as of first instance or of appeal, may be continued and concluded in the appropriate customary court established or deemed to have been established under this Law and every judgment, order or sentence in any such cause or matter may be enforced in the same manner and the same appeal, if any, shall lie therefrom as if it were a judgment, order or sentence in a cause or matter originally instituted in the appropriate customary court established or deemed to have been established under this Law.”

It is clear from the above provisions of the customary Courts Law that Native Courts were the forerunners of the customary courts and that existing native courts were converted to customary courts. It is also clear particularly from section 19 of the law that customary courts cannot administer the provisions of any written law unless authorised to enforce the law by order under section 24 or the enactment itself. It is erroneous to argue that the provision of the Evidence Act applies to customary court when the Evidence Act has expressly excepted the application of the Act from judicial proceedings before a native court. The learned appellate judge was therefore in C error to have applied sections 45 and 54 of the Evidence Act or Law in deciding the appeal to it from the customary court. The provisions of the sections influenced his mind greatly. Section 45 of the Act reads: .

“Acts of possession on enjoyment of land may be evidence of ownership or of a right of occupancy not only of a particular piece or quantity of land with reference to which such acts are done, but also of other land so situated or connected therewith by locality or similarity that what is true as to one piece of land is likely to be true of the other piece of land.”

The learned appellate judge therefore drew the inference that since from the evidence in a previous suit Exhibit C, the respondent acquired adjoining land from the appellant as representative of the Ijokun community, the Ijokun community must be the owner of the land in dispute. This is a non sequitur having regard to the evidence which the learned trial President accepted. The Court of Appeal was therefore justified in reversing the appellate judge on the point. Section 54 reads:

“(1) if a judgment is not pleaded by way of estoppel, it is as between parties and privies deemed to be a relevant fact, whenever any matter, which was or might have been decided in the action in which it was given is in issue or is or is deemed to be relevant to the issue in any subsequent proceeding;

(2) such a judgment is conclusive proof of the facts which it decides or might have decided, if the party who gives evidence of it had no opportunity of pleading it as an estoppel.”

Exhibit C is the proceedings and judgment in a previous case between the parties in respect of another piece of land. As the law makes no provision for pleadings in the customary court and so the question of pleading the judgment as estoppel could not have arisen. Moreover, as said earlier, the judgment is in respect of a different land and it cannot be said with any justification that the ownership of the land in the instant appeal might have been decided in the previous action.

The Court of Appeal was, in my view, justified in its view that the learned trial President gave detailed consideration to the evidence and properly evaluated it.

For the reasons stated above and those in the judgment of my learned brother, Kawu, JSC., I hereby dismiss the appeal. The decision of the Court of Appeal reversing the decision of the appellate judge and restoring the decision of the trial court is hereby affirmed with costs to the respondent fixed at N300.00.

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SC.56/1985