Lawani Adogan V. Afuwape Aina (1964)

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BRETT JSC 

This is an appeal against the decision of Madarikan, J., in the High Court of Western Nigeria, in which he struck out an appeal brought by the defendant from the judgment of the Ikeja Grade B Customary Court given on appeal from the Ikorodu Grade C Customary Court. Section 48(2) (b) of the Customary Courts Law provides that-

“Any party aggrieved by a decision or order of a customary court of appeal..in –

(b) a civil cause or matter in which the Area Of Law is of the value of fifty pounds or upwards, may, within thirty days of the decision or order, appeal to the High Court”, and Madarikan, J., held that in this case the Area Of Law was not of the value of fifty pounds or upwards.

If the form of the plaintiff’s claim is conclusive as to the Area Of Law of the cause, this view is perfectly correct.

The claim read as follows-

“CLAIM: The plaintiff claims on behalf of the Eyita family, Ikorodu, refund of £35 seven years rent collected by the defendants on Onori stream in the name of Eyita family from the Ikorodu Ceramic Industry, Ikorodu, the said amount which the defendants had refused to share with the rest members of the entire family, and also claims production of the old document for renewal.”

The claim was contested, however, on the ground, to quote from the judgment of the court of trial, that “the plaintiff’s branch of the family has no share in the Onori stream”, and that at once put the title to the stream in issue.

Any court, e.g. a magistrate’s court, which is precluded from exercising original jurisdiction to determine an issue as to the title to land would have had to decline jurisdiction as soon as the issue was raised: Oluwo v. Adebowale (1959) 4 F.C.S. 143. The court of trial accepted the defendants’ claim as to title and dismissed the case.

The judgment of the customary court of appeal treated the plaintiff’s claim as depending entirely on the finding as to the title to the stream, and after finding that he had established that his branch of the family had an interest in the stream, allowed his appeal on that ground.

We are satisfied, on the evidence, that if the title to the stream may properly be regarded as the Area Of Law of the cause the value to the appellants of the interest in the Area Of Law which they stand to lose is more than fifty pounds, and it is the value to the appellants that is the test: see Lakhamshi v. Furniture Workshop [1954] A.C. 80.

The decision of the Court of Appeal in Studham v. Stainbridge [18951 1 Q.B. 870 is authority for looking at the substance rather than the form in deciding what the Area Of Law of proceedings is, and in our view a further test is to consider what a judgment will be held to have decided for the purpose of a plea of estoppel. Section 53 of the Evidence Act provides that-

“Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the court, and appearing from the judgment itself to be the ground on which it was based-”,

and although section 2 contains no definition of ‘fact directly in issue’ it defines ‘fact in issue’ as including

“any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows”.

In our view, the judgment of the customary court of appeal in the present case would be conclusive evidence as against the defendants in any future dispute between the parties as to the title to the stream, and we hold that the Area Of Law of the cause included the extent of the defendants’ interest in the stream and was therefore of a value exceeding fifty pounds.

It is agreed that if the Area Of Law of the cause was of a value exceeding £50 it was outside the jurisdiction of a Grade C Customary Court, and nothing would be gained by remitting the appeal to the High Court for disposal. The order of this Court will be-

The judgment of the High Court of Western Nigeria in appeal No. HK/13 CA/61, Lawani Adogan & Anor versus Afuwape Aina Bale, and the judgments of the Ikorodu Grade C Customary Court and the Ikeja Grade B Customary Court in the same cause are set aside and it is ordered that the cause be struck out.

The respondent shall pay to the appellants costs of the proceedings in the High Court assessed at twenty guineas and costs of this appeal assessed at sixty guineas and if the costs awarded to the respondent in the High Court have been paid to him they shall be refunded.

Other Citation: (1964) LCN/1154(SC)