Appeal from
Supreme Court of Nigeria.
Claim for
tribute for use and occupation
of land and damages 10 reaPing
palm nuts thereon contrary to
native law and customres
judicata-misdirection-proof of
customary law.
The facts are
set out in the judgment .
.
Held: (1) The question of the
claim for damages has not been
upset by ani
Appeal Court
and binds the parties. (2) A
particular custom has to be
proved b calling witnesses and a
decision of one case in 1892
does not make it notorious by
frequent proof. Appeal allowed.
The facts of
the case are sufficiently set
out in the Judgment.
A. Alakija
for 1st Defendant-Appellant.
A. L. johnson for
Plaintiff-Respondent.
The following
joint judgment was delivered :-
KINGDON,
C.]., NIGERIA, PETRIDES, c.J.,
GOLD COASTI AND GRAHAM PAUL,
C.]., SIERRA LEONE.
The Plaintiff
claimed from the Defendants the
sum of £10 whereof £39 is the
value of tribute due and payable
for use an occupation by the
Plaintiff's permission of
certain farmlands of the
Plaintiff situate at Odi Olowo
village by the Defendants from
lItH May, 1925 to 31st December,
1938 and £69 amount of damages
done by the Defendants in
wrongfully reaping palm nuts on
Plaintiff's land on divers dates
between the above periods with on
Plaintiff's permission contrary
to principle of native customary
law applicable to lands in the
Awori District of the Colonyof
Lagos.
Pleadings
were ordered and filed. The
Appellant admitted liability for
the tribute claimed and paid it
into Court, but he denied
liability for the amount of
damages claimed, his case being
that as tenant of the land he
was entitled to reap the palm
nuts.
The Court
below found against the 1st
Defendant on thl question of
damages and awarded damages
assessed at £13 with modified
costs to the Plaintiff against
the 1st Defendant assessed, at
£6. 6s. Against that judgment
the 1st Defendant has appealed
to this Court.
There are two
substantial grounds of appeal;
the first is that the Plaintiff
is estopped by record, a
judgment of Tew, J. given in 1925
amounting to res judicata;
the second is that the
learned Trial Judge misdirected
himself in founding upon an
alleged custom of the Awori
country which was not proved.
As to the
first, it was the Plaintiff
himself who, in support of his
case, put in evidence the
judgment in Suit No. 10 of 1925.
That was a suit in which the
present Plaintiff sued certain
persons who entered on this land
at the invitation of the
Appellant for damages for
trespass. The important part of
the judgment in the 1925 case is
the last paragraph which is as
follows :-
"
The· Plaintiffs Counsel argued
that, even if Salami Afiko (i.e.
the present appellant) were the
tenant of the land, he had no
right to reap palm nuts there,
and a fortiori no right
to allow others to do so; but
there is no evidence of such a
custom and Salami Afiko
maintained that he had that
right. There must be Judgment
for the Defendants on the whole
case". that
paragraph makes it quite clear
that in the 1925 suit there was
in Issue before a competent
Court between the present
Respondent and the present
Appellant (through his
licensees) the same question as
is now raised, namely whether
the present Appellant as a
tribute-paying tenant of the
present Respondent had the right
under Awori custom to reap palm
nuts on the land of which he was
tenant either by himself or by
his licensees.
The 1925
judgment decided rightly or
wrongly that the present
Appellant had that right and on
this question it is abundantly
clear that it constitutes res
judicata between the
Appellant and Respondent. The
1925 judgment still stands as
between the Appellant and
Respondent, and it was put
forward in evidence by the
Respondent himself in support of
his case on the question of the
tribute payable by the present
Appellant. The Respondent cannot
be allowed to found on the part
of the 192.5 judgment that suits
him and to ignore it so far as
it disposes of the other
question in the present case.
It seems to
us that the learned Judge in the
Court below completely
misdirected himself in regard to
the 1925 judgment when he said
:-
" The part of
the Judgment relating to the
reaping of palm kernels was
however 'reversed by the same
Court the following years, in the
case of Yesufu Kugbuyi v.
Odunjo (1926 VII
N.L.R.51) the Court stating
in the Judgment it then gave
that since the previous judgment
of 11th May 1925 the Court's
attention had been drawn to the
decision in the case of Odu of
Ikeja and and Akitoye of Ikeja
tried in 1892 wherein it was
decided that it was a custom of
the Awori country that a
stranger to the community who
had received a grant of land had
no right to reap the palm trees
on the land, this right being
reserved for the native of the
soil."
It is obvious
that in the case of Yesufu
Kugb'l!yi v. Odunjo the same
Court (in fact the same Judge)
could not and did not reverse
the judgment given in the 1925
case which was a case between
quite different parties. The
1925 judgment still stands as
res judicata between the
parties to it and their privies.
It may Larinde, etc.
be that the 1925 case was
wrongly decided but it has
never been Afi;~ & anor. upset
by an Appeal Court and it binds
the parties to it and their
privies.
It follows
that the 1925 judgment put the
Plaintiff out of Court so far as
his claim for damages for
reaping palm nuts was concerned.
That is
sufficient to dispose of this
appeal, but we are of opinion
that the Appellant's contention
upon the second point also is
correct. The Plaintiff relied on
an alleged custom in the Awori
country, and, in order to
establish it, founded upon the
above quoted decision in the
1892 case of Odu of lkeja and
Akitoye of lkeja. The Trial
Judge accepted that decision as
establishing the custom and
acted upon it. In the Gold Coast
case of Kobina A ngu v.
Cudjoe Attah (Gold Coast Reports
P.C. 1874-1928) Sir Arthur
Channel in delivering the
judgment of the Privy Council
said :-
The land law
in the Gold Coast Colony is
based on native customs. ,-\s is
the case with all customary
law, it has to be proved in the
first instance by calling
witnesses acquainted with the
native customs until the
particular customs have, by
frequent proof in the Courts,
become so notorious that the
Courts take judicial notice of
them ",
The decision
of one case in 1892 cannot be
said to be " frequent proof in
the Courts" enabling the Courts
to take judicial notice of this
particular alleged Awori custom.
It therefore had to be proved,
and it was not. This is a second
reason why the judgment of the
Court below cannot stand. The
appeal is allowed and the
judgment of the Court below in
respect of the 1st Defendant
including the order as to costs
but not including the
declaration that the Plaintiff
is entitled to take out of Court
the amount paid in by the 1st
Defendant, is set aside and it
is ordered that, save in respect
of the claim to tribute, the
Plaintiff's claim against the
first Defendant do stand
dismissed. The Appellant is
awarded costs in this Court
assessed at 40 guineas and in
the Court below assessed at 15
guineas.
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