ADEDIBU v ADEWOYIN

(1951) JELR 80476 (WACA)    
West Africa Court of Appeal  ·  W.A.C…CIV.APP.3370. ·  27 Apr 1951 ·  West Africa [For WACA cases]
 · 
Other Citations
(1951) 13 WACA 191
CORAM
VERITY, C.J. (NIGERIA), LEWEY, J.A., DE COMARMOND J.
Core Terms Beta
learned judge
evidence
native law
case
legal authority
present case
regard
respondents
view
appeal
court
document
matter
mr. ward price’s memorandum
traditional custom
male members of the family
matter of evidence
mogaji of the house
part of the evidence
reason of bad character
reason of infirmity of body
single witness
success of this argument
claims of both parties
costs
earlier case
family meeting
final conclusion
ground of appeal
judgment of hallinan
leading judgment
legal text book of such authority
main principles
m.de comarmond
meeting of the family
members
meting of the family
older members
oldest living
oldest male member of the entire family
oldest member of the family
opinions of native chiefs
question of evidence
questions of native law
respect
results of the writer
special knowledge of native law
statement of claim
such law
true nature of the native law

Verily, C.J.(Reading the leading Judgment) This is an appeal from a judgment of Hallinan, J., Declaring that the appellant is not entitled to be appointed Mogaji of the House of which the Parties are members, unless it has been first decided at a meting of the family that male members of the family older than the defendant are not eligible by reason of infirmity of body or mind, or by reason of bad character, and further that the respondents are entitled to a declaration that the appellant was not duly selected as Mogaji in accordance with the traditional custom and that his selection is, therefore, null and void. The learned Judge also granted an injunction restraining the appellant from occupying the office of Mogaji performing the duties and enjoying the benefits and privileges attached thereto.

In seeking relief the respondents averred by their statement of claim that the person eligible for selection as Mogaji of the House, of which there are twenty-two branches, is the oldest male member of the entire family, who does not belong to a branch which has previously presented a candidate.

The appellant, on the other hand, averred that the presentation of a candidate is decided by a majority vote of representatives of each branch of the family.

Evidence was adduced on both sides in support of these conflicting versions of what is the traditional custom in this matter, and the learned Judge had recourse also to a document described as “Mr. Ward Price’s Memorandum of Land Tenure Yoruba Province”. In regard to this document it is a ground of appeal that the learned Judge erred in basing his judgment thereon it well established that native law and custom is a question of evidence. It is only in so far as this case is based upon such law and custom that Mr. Ward Price’s Memorandum is relevant. By section 58 of the Evidence Ordinance (Cap. 63), it is provided that:-

“In deciding questions of native law and custom the opinions of native chiefs or other persons having special knowledge of native law and custom and any hook or manuscript recognised by natives as a legal authority are relevant.

In my view, this involves two postulates, firstly that the memorandum must form part of the evidence in the case, and secondly that it must be shown that it is a book or manuscript recognised by natives as a legal authority. In the present case it does not appear to have been tendered in evidence. The learned Judge appears to have referred to it as though it were a legal text book of such authority as would warrant its citation to the Court, which it certainly not, for native law and custom is a matter of evidence and not of law. Moreover, whatever may be the respect due to the results of the writer’s researches, they are only relevant as evidence if shown to he recognised by natives as a legal authority, which again was not done in the present case. The learned Judge makes reference to an earlier case in which he states that this memorandum was relied on by both parties, from which he assumes that it is regarded as a legal authority. I do not think that this necessarily follows, but in any event, the question is, as I have said, a matter of evidence, and therefore a matter of legal proof and not a matter to be assumed. In my view, therefore, the learned Judge erred in so far as he based his upon this document, which was not properly before him as part of the evidence in this case.

This does not dispose of the matter, however In regard to the evidence adduced the learned Judge at the commencement of his consideration of the evidence says:-

“In the present case not a single witness has been called who I consider was both authoritative and independent..

It was somewhat ingeniously argued that a Witness might not he both, and yet be one or the other: that is to say, although not independent might yet be authoritative. Unfortunately for the success of this argument the learned Judge himself appears to make no such finding in regard to any witness, it is true that he refers to one witness for the appellant as being “the best witness on the issue as to native law and custom”. She was certainly not independent and he does not appear to have considered her authoritative on this issue, as he almost complete rejects her evidence.

“In the present case not a single witness has been called who I consider was both authoritative and independent.”

It was somewhat indigenously argued that a witness might not be both, and yet be one or the other: that is to say, although not independent might yet be authoritative. Unfortunately for the success of this argument the learned Judge himself appears to make no such finding in regard to any witness. It is true that he refers to one witness for the appellant as being “the best witness on the issue as to native law and custom”. She was certainly not independent and he does not appear to have considered her authoritative on this issue, as he almost completely rejects her evidence.

In his final conclusion, indeed, he rejects the claims of both parties as to the traditional custom in the selection of a Mogaji. He rejects entirely the claim sentatives of each branch of the family, and also that of the respondents that the person eligible is the oldest member of the family who does not belong to a branch which has previously presented a candidate.

Basing his decision in part, as it would appear, upon certain “main principles” referred to in Mr. Ward Price’s Memorandum, he declares himself to be satisfied that according to native law and custom, of which there was no evidence either authoritative or admissible, that the oldest living male member of the family is entitled to succeed provided that at a meeting of the family he is not considered disqualified by reason of bodily or mental infirmity or bad character. Neither party either set up or produced evidence in support of this finding. It is entirely inconsistent with the appellant’s case and is inconsistent also with that of the respondents in that it ignores the essential part of the claim of the respondents that the selection is limited to members of the branches of the family who have not previously presented a candidate.

As a result of this conclusion he has declared that the defendant is not entitled to be appointed Mogaji unless it has been first decided by a family meeting that male members of the family older than he are not eligible by reason of infirmity of body or mind, or by reason of bad character. From this it follows that if such a meeting be held and the family decide that the older members are so disqualified, then the defendant will be eligible irrespective of whether or not he is the oldest member of a branch which has not previously presented a candidate: a position which neither party has claimed.

In my view, the learned Judge, not being satisfied tat either party had proved his claim as to the true nature of the native law and custom applicable to this case, should not have made a declaration based upon a conception of native law and custom to which neither party subscribed.

I would, therefore, allow the appeal, set aside the judgment in the Court below and substitute therefor a judgment of non-suit. I would make no order as to costs in the Court below, but the appellant is, in my view, entitled to his costs of this appeal.

Lewey, J.A. I agree.

M.de Comarmond, S.P.J. I agree

Appeal allowed. Judgment of non-suit entered.