Ajayi Alamu Vs Olaode Alao & Ayondioro Family (1963)

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G. B. A. COKER, JSC

There is no merit whatsoever in this appeal. The complaints here before us on appeal broadly speaking are, firstly, that the appeal should not have been heard in the High Court, Ibadan as the representative of the appellant family had then died and that the judgment of the Grade “B” Customary Court, which the High Court restored and which was confirmed by the Western State Court of Appeal, was generally unsupported by the weight of evidence.

With respect to this second complaint, we are satisfied that the facts found and accepted by the Grade ‘B’ Customary Court clearly support the case of the respondents and established the claims which the respondents had placed before the court.

With respect to the first complaint it is manifest from the record that at no time was the court informed of the death of that representative (if he in fact died) until after the judgment of the High Court was delivered and went against the appellants. They then sought for an order setting aside the judgment or in the alternative an order enabling them to substitute someone else for the allegedly deceased representative.

The learned Judge granted them the alternative order but refused to set aside the Judgment. We are in full agreement with him for apart from other considerations, learned counsel appeared throughout the proceedings for and on behalf of the person alleged dead and at no time did he mention the fact of his death.

In any case, in view of the alternative order on their motion as granted by the Judge, we do not think it is still open to the appellants to contest, as they now do before us, the propriety of proceeding to judgment by the High Court. The appeal fails and it is dismissed. The appellants will pay to the respondents the cost of the appeal fixed at 40 guineas.

Other Citation: (1963) LCN/1080(SC)