Foster Sutton, P. This is an appeal from a judgment of de Comarmond, Acting Chief Justice, given in two suits which were consolidated.
In the first suit No. 39 of 1952, the appellants were the plaintiffs. Their claim was for a declaration of title to premises known as No. 94 Strachan Street, Ebute Metta, Lagos.
In the second suit, No.1 of 1953, the respondents were the plaintiffs, and their claim was for possession of the same premises.
It does not appear to me necessary to re-state the facts which are fully discussed in the judgment appealed from, because, in the result, the issue of fact which required to be determined was whether the land upon which the house at 94 Strachan Street was built had been given by the original owner of the land to the ancestor of the respondents. If the gift could not satisfactorily be established the property would have passed by operation of law to the predecessor in title of the appellants and they would then have been entitled to the declaration of title sought.
The learned trial Judge found as a fact that the land in question had been granted to the respondents' ancestor in or about the year 1887, that she had then been placed in possession of it by the grantor, that she built a house upon it, now known as 94 Strachan Street, in the year 1892, and that she and her descendants had remained in undisputed possession of it until the year 1947 when the incidents occurred which ultimately resulted in the respondents bringing their action, Suit No.1 of 1953. Judgment was entered in their favour for possession of the premises, and the appellants' claim for a declaration of title was dismissed with costs.
When the case came on for hearing before us learned Counsel for the appellants, Mr Kayode, intimated that he did not intend to dispute the findings of fact, and that he relied solely on the points of law raised by grounds (1) and (2) of the grounds of appeal which read as follows :-
“(1) The learned trial Judge erred in law in holding that the provisions of section 17 of the Supreme Court Ordinance do not have a retrospective effect.
(2) The learned trial Judge erred in law in holding that a gift of land can be proved by oral evidence thereby coming to a wrong decision”.
Shortly put the argument is that section 17 (1) of the Supreme Court Ordinance (Cap. 211), which deals with the application of native law and custom where the parties are natives, effected an alteration of the law precluding the Court from giving effect to native law and custom if such law or custom is “incompatible either directly or by necessary implication with any law for the time being in force”, the relevant words being “any law” ; whereas before the enactment of the present section 17 (1) the equivalent provision read “nor incompatible either directly or by necessary implication with any local enactment. . . . .”
It was argued that the change of wording brought in the Statutes of general application which were in force in England on the 1st January, 1900 (section 14 of Cap. 211), of which the Statute of Frauds is one, and as the gift was made orally, that is to say a gift under native law and custom, and it was not evidenced by any memorandum or note in writing, it could not be proved, since section 4 of the Statute precluded its being proved by oral evidence.
If a party in an action intends to rely on the Statute of Frauds it is his duty to specially plead it in his statement of defence which was not done in this case. The point was raised for the first time by counsel who then appeared for the appellants in his final address to the Court, and this was objected to by learned Counsel for the respondents, Mr Coker, who appeared for them in the Court below and before us.
The relevant paragraph of the statement of defence merely avers that the alleged gift is contrary to native law and custom, and no application was made in the Court below to amend the defence to enable the Statute in question to be invoked.
When this was drawn to Mr Kayode's attention he submitted that the learned trial Judge ought, of his own motion, to have directed the necessary amendment to be made, and that he having failed to do so this Court should take the necessary action by so directing, a course which we indicated we were not prepared to follow in this case, nor do we think it was incumbent upon the learned trial Judge to do so in the absence of an application in that behalf.
In these circumstances it becomes unnecessary to decide whether section 17 (1) of the Supreme Court Ordinance did effect the change in the law contended, because in the absence of a plea entitling the Statute of Frauds to be raised the point was not open to the appellants in the Court below, and we declined to allow it to be pursued before us.
If the point had been open to them, however, and we had come to the conclusion that section 17 (1) had effected a change in the law, I would have had no hesitation in holding, on the findings of fact made by the learned trial Judge which, in my view, are fully justified by the evidence, and were not seriously disputed before us, that parol evidence was receivable without regard to the Statute of Frauds, see Ungley v. Ungley (1877) 5 Ch. D. 887.
For the reasons given I would dismiss this appeal with costs fixed at £21-5s-0d.
Jibowu, Ag. C.J. I concur. Coussey, J.A. I concur.
Appeal dismissed.