G. F. Ferguson Of Dunkwa V. Sam W. Duncan (1953)
LawGlobal Hub Judgment Report – West African Court of Appeal
Native Law and Custom—Application to transactions between natives— Exceptions where English Law is applicable—Onus to prove exception—The Courts Ordinance (Cap. 4), section 74.
Facts
The plaintiff lent a sum to the defendant on a common receipt which read: “Received from G.F.F. of D. the sum of £200 on loan “. Some years later the plaintiff sent his mother to demand the debt (which was in accord with native custom) and then put the matter in the hands of his solicitor who recovered £20, and the defendant also gave a mortgage of a house but remained in possession (which was in accord with English usage).
The plaintiff years later sued for the balance (and for incidental expenses connected with the mortgage, but these he did not prove and in the result was non-suited in respect thereof) but the trial Court was of opinion that the transaction had been governed throughout by English law and barred by the Statute of Limitations. The plaintiff appealed, contending that the transaction was governed by native law and custom and that Statute did not apply.
The question turned on section 74 of the Courts Ordinance (Cap. 4) which provides that native law and custom “shall be deemed applicable in causes or matters where the parties thereto are natives” (as the parties here were) subject to this exception set out in the section, namely that “No party shall be entitled to claim the benefit of any local law or custom if it shall appear either from express contract or from the nature of the transactions out of which any suit or question may have arisen, that such party agreed that his obligations in connection with such transactions shall be regulated exclusively by English law”.
The appellant stressed the words ” express ” and ” exclusive ”, the respondent raised two points as ousting native law and custom—(1) that there was no evidence of customary ceremonies in relation to the loan, and (2) that the subsequent mortgage in English form negatived the presumption that native law and custom was applicable.
Held
The parties being natives, the onus was on the defendant to satisfy the Court that native law and custom should not be applied, but he neither cross-examined the plaintiff nor himself gave evidence towards that end; and as for the subsequent mortgage, it was plainly an afterthought and formed no part of the original transaction.
The evidence did not establish that the transaction was to be exclusively regulated by English law and the Statute of Limitations did not apply.
Appeal allowed.
