CORAM

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BRETT JUSTICE, SUPREME COURT

ONYEAMA JUSTICE, SUPREME COURT

AJEGBO JUSTICE, SUPREME COURT

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PARTIES

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CHIEF TAIWO

APPELLANTS 

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 DOSUNMU

RESPONDENTS 

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AREA(S) OF LAW

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CUSTOMARY LAW-FAMILY LAW-EVIDENCE 

 

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SUMMARY OF FACTS

The appellant brought an action against the respondents for family accounts, enquiries and directions. The court dismissed the action against the 1st respondent. The appellant appealed and also filed a motion for stay of action against the 2nd respondent which was refused, hence this appeal. 

 

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HELD

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Appeal allowed. 

 

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ISSUES

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RATIONES DECIDENDI

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WHEN A CUSTOM CAN BE ACTED UPON

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Section 27 of the High Court of Lagos Act enjoins the court to observe and enforce the observance of every customary law in cases where it is applicable, and the ascertainment of that law is dealt with in section 14 of the Evidence Act, which reads as follows:-

“14. (1) A custom may be adopted as part of the law governing a particular set of circumstances if it can be noticed judicially or can be proved to exist by evidence. The burden of proving a custom shall lie on the person alleging its existence.

(2) A custom may be judicially noticed by the court if it has been acted upon by a court of co-ordinate or superior jurisdiction in the same area to an extent which justifies the court asked to apply it in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration.

(3) Where a custom cannot be established as one judicially noticed it may be established and adopted as part of the law governing particular circumstances by calling evidence to show that persons or the class of persons concerned in the particular area regard the alleged custom as binding on them: Provided that in case of any custom relied upon in any judicial proceeding it shall not be enforced as law if it is contrary to public policy and is not in accordance with natural justice, equity and good conscience.” Per Brett JSC

 

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WHEN A CUSTOM CAN BE ACTED UPON

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A custom can only be “acted upon” within the meaning of section 14(2) of the Evidence Act for the purpose of deciding a particular case and as a custom binding on the parties to that case and in the area concerned. Per Brett JSC

The taking of an account is not an end in itself, but is for the purpose of ascertaining precisely the relative rights of the parties so that they may be enforced. Per Brett JSC

 

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CASES CITED

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Nelson v. Nelson (1932) 1 WA.C.A. 215

Solomon v. Botchway (1943) 9 W.A.C.A. 127

Abude v. Onano (1946) 12 WA.C.A. 102

Fynn v. Gardiner (1953) 14 W.A.C.A. 260

Archibong v. Archibong (1947) 18 N.L.R. 117,

Kosoko v. Kosoko (1937) 13 N.L.R. 131

t

 

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STATUTES REFERRED TO

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High Court of Lagos Act

Evidence Act

 

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