Appeal Court, 23rd No\'. 1940.
Native Law and Custom alleged
by Plaintiffs-Appellants without
having been previously set out
in Pleading.
Held: Where a party intends to
set up and rely on Native Law
and Custom it must be
specifically alleged and
pleaded. In this case the writ
has disclosed no case of action.
There is no need to set out the
facts.
K. A. Bossman for
Appellants.
A. W. Kojo Thompson
for Respondent.
The following joint judgment was
delivered :-
KINGDON, C.J., NIGERIA, GRAHAM
PAUL, C.J., SIERRA LEONE AND
BANNERMAN, J. GOLD COAST.
In this case the learned Chief
Justice in the Divisional Court
held that the writ disclosed no
cause of action and non-suited
the plaintiff on the pleadings
without hearing evidence. The
plaintiff now appeals to this
Court contending that he ought
at least to have been allowed to
lead evidence to prove the
Native Law and Custom upon which
he desired to rely. But neither
in his writ nor in Counsel's
opening did he allege any Native
Law and Custom, and we cannot
too strongly emphasise that
where a party intends to set up
and rely upon a Native Law and
Custom it must be specifically
alleged and pleaded. In this
case if the rather vague Native
Law and Custom suggested to us
were set down in black and white
it is clear that it would be so
palpably absurd as not to merit
serious consideration.
We concur with the view of the
learned Chief Justice that the
writ disclosed no cause of
action.
The appeal is dismissed with
costs assessed at £17 13s.