Bisi Sadiku Alese V Ibitoyi Saromi (1966)
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BRETT, J.S.C.
This is an appeal against the decision of Delumo J. in the High Court of Western Nigeria striking out an appeal for want of jurisdiction. The claim was brought in the Ijebu-Ode Grade C Customary Court, and after alleging that the defendant had encroached on a piece of land belonging to him, the plaintiff claimed ‘declaration of title to that piece or parcel of the land encroached upon by the defendant valued £20’, and £30 damages for trespass. The declaration was granted but damages were refused. The defendants appeal to the Ijebu Grade B Customary Court was dismissed and he gave notice of appeal to the High Court. The High Court held that the Area Of Law was not of the value of fifty pounds or upwards and that s.48 (2) (b) of the Customary Courts Law conferred no right of appeal.
The evidence in the court of trial established that the defendant had built a wall on the piece of land in question, and the defendant filed an affidavit in the High Court in which he swore that “part of my house worth £60 falls on the land in dispute”. Delumo J. treated this as immaterial and said-
“The Area Of Law cannot be anything else but the land in respect of which declaration of title is claimed. According to the claim before the court of first instance that is worth £20. There is therefore no need to call in aid affidavits sworn by the parties.”
As Mr Adekunle, who appeared for the appellant pointed out, it is the value to the appellant that the court has to consider in deciding whether the Area Of Law is of sufficient value for an appeal to lie: Lakhamshi and Bros. v. Furniture Workshop [1954] A.C. 80. In Adogan and Anor. v. Aina F.S.C.73/1963 (judgement delivered 3rd April, 1964) this Court held that the form of the plaintiffs claim was not conclusive as to the Area Of Law of the cause for the purpose of determining the value of the Area Of Law to the defendant and in Allen v. Pratt (1888) 13 App. Cas. 780 the Judicial Committee pointed out at p. 781 that-
‘It may be that the value to the defendant of an adverse judgement is greater than the value laid by the plaintiff in his claim. If so, it would be very unjust that he should be bound, not by the value to himself but by the value originally assigned to the Area Of Law of the action by his opponent.’
Mr Okenla, for the respondent, submitted that even if the value to the appellant is the test Delumo J. was right in refusing to look beyond the record of the trial at first instance, including the claim, and that extraneous evidence would only be admissible if no value was set on the Area Of Law in the claim. The defendant, he submitted, should have called evidence at the trial to show the value of the Area Of Law to him. This would require a defendant who wished to preserve his right of appeal to call evidence on a point which was not in issue before the court of trial, but the court of trial would be fully entitled to refuse to receive such evidence or to come to any finding on it. As Mr Adekunle pointed out, the judgement of the Judicial Committee in Lakhamashi and Bros. v. Furniture Workshop (supra) shows that in granting leave to appeal as of right the Court of Appeal for Eastern Africa had acted on affidavits as to the value of the Area Of Law and we have no doubt that in this case the High Court was entitled to consider the affidavit filed by the appellant, and ought to have done so.
There was no counter-affidavit and in our view the appeal to the High Court was shown to be properly before that court. The appeal to this Court is allowed, the order striking out the appeal to the High Court is set aside and the appeal is remitted to the High Court for hearing.
The costs awarded in the High Court, if paid, are to be refunded and costs of the proceedings in that court will abide the result of the appeal.
The appellant is awarded costs of this appeal assessed at 52 guineas.
Other Citation: (1966) LCN/1347(SC)
