Yesufu Anla Vs Salami Ayanbola (1977)

SOWEMIMO, JSC. 

This appeal is against the judgment of the Western State Court of Appeal, Ibadan, dated 12th July, 1974, by which it upheld the judgment of the High Court of the Western State sitting at Ibadan, on appeal, by which the judgment of the Ibadan City Grade B Customary Court was restored and the judgment of Ibadan City Grade A Customary Court of Appeal was set aside.

For the purpose of this judgment, the appellant who was the defendant in the Suit L12/70 at Ibadan City Grade B Customary Court and the respondents who were the plaintiffs, will be referred to as such defendant and plaintiffs.   The suit originated in the Ibadan City Grade B Customary Court and the claim reads:- “Declaration to title to ownership and recovery of all that piece of land or parcel of land, being and situated and lying at Ayorunbo Area, Bere, Ibadan.

The land is bounded as follows:- On the first side by the main road from Bere to Oritamerin; On the second side by Bada Afolabi house; On the third side by Aminu house, and On the fourth side by former Ayorunbo market, Ibadan.”   In his judgment, the trial President of the Grade ‘B’ Customary Court reviewed the evidence before him dealt with certain features of the land which he saw during inspection and delivered a considered judgment on 27/7/70. The relevant portion of the judgment reads:-  

“ I am quite satisfied from the evidence and fact before this court that the land in dispute is a portion of the plaintiffs’ father’s land left behind after the destruction of their house at the time Okunola Street was constructed. I believe and accept as true the evidence of the plaintiff and of Alimi Afolabi (2nd P.W.). I do not believe or accept the evidence of the defendant and that of his elder brother. The latter’s denial of the parts he played in the matter before it was brought to court is deliberate to cover the guilt of his brother as blood is thicker than water.   The judgment of this court is for the plaintiffs for title to, ownership and recovery of the piece of land verged red in the survey plan No. AK2435 of 14/5/70 drawn by Mr. D.O. Akingbogun, licensed surveyor, with £38 costs payable by the defendant.”  

The defendant, being dissatisfied with this judgment, appealed to the Ibadan City Grade “A” Customary Court; and against the run of the case of the defendant, or even the case of both parties in the Grade “B” Customary Court, the President of the Customary Court on appeal, in his judgment, stated inter alia thus:-   “The point I now have to consider is whether after plaintiff’s own witness said the plaintiff agreed to their pleadings ten years ago, he can still claim the land. In my view, this amounts to a waiver and the plaintiff is estopped. If the plaintiff refused ten years ago, there would have been no waiver. The trial court accept the evidence of Alimi Afolabi.”  

Obviously the President of Grade A Customary Court was formulating an issue which was not the case made out by either party in the lower court. It was simpliciter who has title to the land, that is, which of either party’s father originally owned the land. Notwithstanding the provisions of Sections 19 and 20 of the Customary Courts Law of the Western State (Cap. 31 in Volume 2 of the Laws of the Western Region), the President of Grade A Customary Court did not deal with customary law but proceeded on English principles of equity on defences available to a defendant.

These sections of the Customary Courts Law read:   PAGE| 3   “19. 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 an 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 bye-laws made by a local government council, or having effect as if so made, under the provisions of any enactment and in force in the area of jurisdiction of the court.  

“20. (1) In land matters the appropriate customary law of the place where the land is situated. (2) In causes and matters arising from inheritance the appropriate customary law shall, subject to sub-sections (1) and (4) of this section, be the customary law applying to the deceased.  (3) Subject to the provisions of sub-sections (1) and (2) of this section:-   (a) in civil causes or matters where:- (i) both parties are not natives of the area of jurisdiction of the court; or (ii) the transaction the subject of the cause or matter was not entered into in the area of the jurisdiction of the court; or (iii) one of the parties is not a native of the area of jurisdiction of the court and the parties agreed or may be presumed to have agreed that their obligations should be regulated, wholly or partly, by the customary law applying to that party. the appropriate customary law shall be the customary law binding between the parties; (b) in all other civil causes and matters the appropriate customary law shall be the law of the area of jurisdiction of the court.   (4) Where the customary law applying to land prohibits, restricts or regulates the devolution on death to any particular class of persons of the right to occupy such land it shall not operate to deprive any person of any beneficial interest in such land (other than the right to occupy the same) or in the proceeds of sale thereof to which he may be entitled under the rules of inheritance of any other customary law. (5) In this section “native,” in relation to the area of jurisdiction of a court, means a person who is a member of a community indigenous to that area.”  

From the provisions of the above sections, it is quite clear that the law applicable in the case of land suits is the customary law of the area where the land is. A Court of Appeal in dealing with matters which come on appeal before it is generally bound to limit its consideration to the case made out and decided by the lower court. The appeal before the President of the Grade A Customary Court was not on the ground that the customary law governing the claim is repugnant to equity.

We wish at this stage to say that we adopt the reasoning of this court in Suit SC.229/75 A.O. Odufuye v. Jacob Adeoye Fatoke delivered on 1st April, 1977, (1977) 4 S.C. (Reprint) p. 8 on the interpretation and limit of application of Sections 19(1) and 20(1) of the Customary Courts Law.   The plaintiffs were dissatisfied with the judgment of the Ibadan Grade ‘A’ Customary Court and appealed to the High Court. The High Court set aside the judgment of the Grade ‘A’ Customary Court and restored that of the Ibadan City No. 3 Grade B Customary Court. The defendant appealed against this decision to the former Western State Court of Appeal on the ground, that the learned Judge on appeal to the High Court adopted a procedure that was wrong in law. The defendant also sought to support the judgment of the Grade ‘A’ Customary Court that the equitable defences formulated by the President of that court were available to the defendant and were resolved in his favour. There is no doubt that the procedure of calling on a respondent’s counsel to support a judgment of the lower court is irregular and most undesirable. No argument was proferred that this irregular procedure had resulted in any miscarriage of justice. The Western State Court of Appeal held that the procedure was wrong in law but on other grounds dismissed the appeal.  

On appeal before us it was argued that since the Western State Court of Appeal had held that the procedure adopted by the Judge on appeal at the High Court was wrong in law, then the decision of the court was incompetent and the appeal should be remitted to the High Court for a proper hearing and the correct procedure followed. It was further contended that the equitable defences formulated by the Grade ‘A’ Customary Court were open to the defendant and that if the Western State Court of Appeal intended dealing with the appeal then the judgment of the Ibadan Grade ‘A’ Customary Court should be upheld.

We have held in this court that the procedure similar to that adopted by the Ibadan High Court in dealing with the appeal before it was irregular and most undesirable. The Western State Court of Appeal was in error when it held that the procedure adopted in the High Court was wrong in law. It was an irregular procedure which did not result in any miscarriage of justice. The learned Judge on appeal actually dealt extensively on all the points raised in the grounds of appeal before him and gave the respondent’s counsel opportunity to advance arguments against all the grounds. We therefore hold that this irregular procedure was not an error in law and to that extent the Western State Court of Appeal was wrong. It has never been contended before us that the customary law applied in the Ibadan City Grade B Customary Court was repugnant to equity.  

We therefore hold that no valid argument had been canvassed before us to warrant a disturbance of the judgment of the Western State Court of Appeal subject to our views on certain aspect of that judgment. The appeal fails and is hereby dismissed. We confirm the judgment of the Western State Court of Appeal which restored the judgment of the President of the Ibadan City No.3 Grade B Customary Court in case No. L11/70 delivered on 27/7/70 with the award of 139 Naira costs awarded in favour of plaintiffs /respondents against the defendant/appellant, and we accordingly so order.

Other Citation: (1977) LCN/1921(SC)