KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE. The Plaintiff claimed from the Defendants the sum of £100 whereof £39 is the value of tribute due and payable for use and occupation by the Plaintiff’s permission of certain farmlands of the Plaintiff situate at Odi Olowo village by the Defendants from 11th 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 without Plaintiff’s permission contrary to principle of native customary law applicable to lands in the Awori District of the Colony of 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 the 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 Sa1ami Afiko (i.e. the present appellant) were the tenant of the land, he had no right to reap palm nut there, and a foriori no right to allow others to do so, but there is no evidence of such a custom and Salami Afiko maintain that he had that right. There must be Judgment for the Defendant, 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 1925 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 kernel, was however reversed by the same Court the following year, in the case of Yesufu Kugbuyi v. Odunjo, (1926 VII N.L.R.51) the Court it 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 in the Odu of Ikeja and Akitoye of lkeja tried in 1892 wherein it was decided that it was custom of the Awori country that a stranger to the community who had received a grant of the land had no right to reap the palm tree on the land, this right being reserved for the native of the soil”.
It is obvious that in the case of Yesufu Kugbuyi 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
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be that the 1925 case was wrongly decided but it has never been up set by an Appeal Court and it binds the parties to it and their prives.
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 Ikeja and Akitoye of Ikeja. The Trial Judge accepted that decision as establishing the custom and acted upon it. In the Gold Coast case of Kobina Angu 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. As 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.