⦿ CASE SUMMARY OF:
Adeyemi Ogunnaike v. Taiwo Ojayemi (1987) – SC
by PipAr Chima
⦿ LITE HOLDING
The Evidence Act 2011 does not apply to native courts also known as Customary Courts.
⦿AREA OF LAW
(1987) JELR 44586 (SC)
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– Otunba Awopeju.
* FOR THE RESPONDENT
– Mr. Adeola.
⦿ FINDING OF FACT
The plaintiffs’ case was that their ancestor, Tumulu, was the original owner of the land in dispute. Tumulu died about 100 years ago and was survived by four children (1) Onate (2) Ojumito (3) Otunowo and (4) Tuona. After the death of Tumulu, his children continued to farm the land. The land was eventually partitioned into four and one of the portions was inherited by Tuona, who was the 1st plaintiff’s grandmother. The 1st plaintiff, together with Soneye, the 2nd plaintiff’s father, and two other children survived Tuona who died about 40 years ago. It was in evidence that when Tuona was alive she planted several crops on the land and after her death, her children continued to farm the land without any disturbance. It was the plaintiffs’ case that all of a sudden they found the 1st defendant on the land. It was claimed that the 1st defendant had destroyed the plaintiffs’ cassava plants and other crops on the land and hence the action as per the writ of summons.
The defendant’s case was that the land in dispute was in fact a portion of the communal land of the Ijokun Community, and that it was the 2nd defendant – the Olorilu of the Communitv, and his Chiefs, who, as the accredited representatives of the Ijokun Community, allotted the land to him. He claimed that the land was granted to the section of his family, the Ogunnaike family of Ogunfowora compound in 1946 after they had paid the customary fees. He said that it was in 1946 that the land was demarcated – measuring 300ft by 600ft, and that it was surveyed in 1956 and was eventually conveyed to him by the Olorilu and his Chiefs in 1963.
The plaintiffs claim against the defendant is for declaration of title to that piece or parcel of land at Sabo, Offin, Shagamu, Ijebu-Remo. 2. The piece of land at Sabo, Offin, Shagamu is bounded on its four sides as follows:
(1) By Adekoya Adeoku’s landed property;
(2) By Erinwole Family landed property;
(3) By Ogunsanwo Tumulus landed property;
(4) By Soyemi Abawo’s landed property
3. The sum of 100 (One Hundred Pounds) being special and General Damages for trespass, wilful and unlawful damages to the Kolatrees and Cassava trees on the plaintiffs land at Sabo, Offin, Shagamu during the month of March, 1967.
Having come to the conclusion that the plaintiff had established her claim, the learned trial President gave judgment in her favour, awarding her the declaration sought with 70.00pounds special damages for trespass.
The defendant (now appellant) being dissatisfied with the decision of the learned President of the Customary Court, appealed to the High Court on four grounds of appeal. The learned appellate Judge of the High Court, Coker, J, (as he then was) heard all the arguments and submissions of the parties and came to the conclusion that there was merit in the appellant’s first ground of appeal which complained that “the decision is wrong in law in that the learned trial President did not evaluate the evidence and the contents of the exhibits tendered before her and thereby came to a wrong conclusion.”
He held in his judgment:- (1) that there were certain admissions made by the plaintiff and her witnesses at the trial about the title of the Ijoku Community which admissions the trial President failed to consider, and which, if considered, would have tilted the case in favour of the appellant; (2) that the trial President failed to give consideration to the content of Exhibit ‘C’ which he (the appellate Judge) held had discredited the plaintiff/respondent; and (3) that the learned trial President omitted to give consideration to the combined effect of sections 45 and 54 of the Evidence Act in relation to the judgment in Exhibit ‘C’.
He concluded that as the respondent had failed to prove the title she claimed, her case should have been dismissed. He therefore allowed the appeal, set aside the judgment of the trial Customary Court and made an order dismissing the respondent’s claim.
The respondent, being dissatisfied with that decision appealed to the Court of Appeal, and by a unanimous decision, that Court allowed the appeal. The decision of the High Court was set aside and that of the trial Customary Court restored. This appeal is against that decision.
1. The Federal Court of Appeal erred in law when it held that sections 45 and 54 of the Evidence Act were not rightly applied by the High Court in its appellate jurisdiction because there is provision in the Customary Courts Laws for their rules of evidence.
⦿ RESOLUTION OF ISSUE(S)
1. GROUND 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. As there is no evidence to show that the Act was made applicable to the trial Customary Court when it gave its judgment, I am of the view that the Court of Appeal was right in their decision that the appellate High Court was in error to have applied the provisions of Sections 45 and 54 to the case.
With regard to the argument as to whether a native court is the same as a customary court, I think the provisions of S.72(1) of the Customary Courts Law, Cap 31, Vol.2 of Laws of Western Region of Nigeria 1959 provide the answer. It reads as follows: “72(1) All native courts (including native courts of appeal) established under or in pursuance of the Native Courts Ordinance or the Native Courts (Colony) Ordinance, or deemed to have been so established, by warrant in force immediately before the commencement of this Law, shall be deemed to be customary courts established under or in pursuance of this Law.”
⦿ ENDING NOTE BY LEAD JUSTICE – Per Kawu JSC
The finding of the trial court was that the appellant had failed to prove that the land in dispute belonged to Ijokun Community. That finding, in my view, was amply supported by the evidence before the court, and the Appellate Judge should not have interfered with it.
⦿ REFERENCED (STATUTE)
Section 72 of the Customary Court Law saved existing native courts and changed them to customary courts deeming them to be customary courts. It reads: “(1) All native courts (including native courts of Appeal) established under or in pursuance of the Native Courts Ordinance or the Native Courts (Colony) Ordinance or deemed to have been so established by warrant in force immediately before the commencement of this law shall be deemed to be customary courts established under or in pursuance of this Law. (2) The persons who immediately before the commencement of this Law were duly appointed members of a court to which sub- section (1) of this section applies shall with effect from the commencement of this Law be deemed to be members of the Court appointed in accordance with the provisions of this Law and to have taken and subscribed the oath in accordance with section 8. (3) The jurisdiction of a court to which subsection (1) of this section applies shall be that set out in the Second Schedule according as the court is graded Grade A, Grade B, Grade C or Grade D.
⦿ REFERENCED (CASE)
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
Now it is settled law that the evidence of a witness taken in an earlier proceeding is not relevant in a later trial. except for the purpose of discrediting such a witness in cross-examination and for that purpose only. – Kawu, JSC. Ogunnaike v. Ojayemi (1987)
Now an admission is a statement, oral or written (expressed or implied) which is made by a party to civil proceedings and which statement is adverse to his case. It is admissible as evidence against the maker as the truth of the fact asserted in the statement. – Kawu, JSC. Ogunnaike v. Ojayemi (1987)