LASISI AKINTAYO (DEFENDANT/APPELLANT)

v.

SALAMI ATANDA (PLAINTIFF/RESPONDENT)

(1963) All N.L.R. 599

 

Division: High Court (West)

Date of Judgment: 26th September, 1963

Case Number: (Suit No. 1/1A/63)

Before: Adeyinka Morgan, J.

 

Civil Action.

The plaintiff/respondent brought an action against the defendant/appellant in the Oyo Divisional Grade "A" Customary Court claiming £300 damages for "the enticement and wilful and wrongful harbouring of Limota Apinke the wife of the plaintiff at Oyo and Ibadan." The trial President found in favour of the plaintiff/respondent and awarded £100 damages and 25 guineas costs against the defendant/appellant.

The defendant/appellant appealed to the High Court on the ground, inter alia, that the trial President erred in law in adjudicating on the suit when he had no jurisdiction to hear it.

The evidence before the trial President showed that both parties were resident in Ibadan and that the defendant/appellant must have enticed the plaintiff's/respondent's wife in Ibadan. The defendant/appellant travelled to Oyo several times during the pendency of divorce proceedings in Ilora.

On Appeal:

HELD:

(1)     By section 22(2) of the Customary Courts Law, civil causes other than land causes shall be tried and determined by a Customary Court having jurisdiction over the area in which the defendant was at the time the cause of action arose. In the present case, the defendant/appellant was at Ibadan at the time the cause of action arose; consequently, the trial President had no jurisdiction to hear the case.

(2)     The fact that the defendant/appellant travelled to Oyo several times during the pendency of divorce proceedings in Ilora does not affect the general issue of jurisdiction.

(3)     Section 19 of the Customary Courts Law which lays down the law to be administered by the Customary Courts does not include the common law; consequently the trail Court, in this case, had no jurisdiction to adjudicate since this action as framed and argued is a tort which is a common law remedy and not a right known to native law and custom.

(4)     An appellate court will, of its own motion, deal with a point which is disclosed by the evidence and which goes to the jurisdiction of the trail Court notwithstanding that such point was neither raised nor argued on appeal.

Appeal allowed: Decision trial President set aside and order striking out claim for want of Jurisdiction substituted.

Law referred to:-

W.N. Customary Courts Law, section 19, 22(2).]

CIVIL ACTION.

Craig (Delano with him) for the Defendant/Appellant.

Adekola for Ige for the Plaintiff/Respondent.

Adjeyinka-Morgan J.:-The plaintiff/respondent claimed the sum of £300 from the defendant/appellant in the Oyo Divisional Grade 'A' Customary Court as damages suffered by him as a result of "the enticement and wilful and wrongful harbouring of Limota Apinke the wife of the plaintiff at Oyo and Ibadan." The learned trial president found in favour of the respondent and awarded £100 damages and twenty-five guineas costs against the appellant.

Three grounds of appeal, were filed and argued and they are as follows:-

1.      The President erred in law in adjudicating. on the suit when he had no jurisdiction to hear it.

2.      The President misdirected himself in awarding £100 damages to the plaintiff after he had held: "The claim for £300 damages is not properly proved."

3.      The judgment is unreasonable unwarranted and cannot be supported having regard to the evidence.

As regards Ground 1 the contention of the learned Counsel for the appellant appears to me to be quite sound. The evidence before the learned President showed that both parties are resident in Ibadan and that the appellant must have enticed the respondent's wife when she was going to Mokola, Ibadan, to sell pap near a place where the appellant was working. The fact that the appellant travelled to Oyo several times during the pendency of divorce proceedings in Ilora does not affect the general issue of jurisdiction for by section 22(2) of the Customary Courts Law: "Civil cause other than land causes shall be tried and determined by a customary court having Jurisdiction over the area in which the defendant was at the time the cause of action arose." Therefore, the appeal succeeds in respect of Ground 1. I would, however, like to point to another issue of jurisdiction which was not raised. This action as framed and argued is a tort which is a common law remedy and not a right known to native law and custom. It may be that a right of a similar kind may exist under native law and custom and the learned President did not refer to any such law or custom. Rather, in his ruling on the question of jurisdiction, the learned president spoke of "The tort of seduction or enticement." I think that attention should be drawn to section 19 of the Customary Courts Law which lays down the law to be administered by the Customary courts. And this does not include the common law.

As regards Grounds 2 and 3, I do not understand what the president meant when he said: "The claim for £300 damages is not properly proved" and then proceeded to award £100 damages. But apart from saying this I do not consider it necessary to say anything more having regard to my decision that the learned president had no jurisdiction to hear the matter. I therefore allow the appeal on Ground 1 and set aside the decision of the learned president. In its place I hereby make an order striking out the claim for want of jurisdiction. I also set aside the order for costs in the lower court.

Craig:-I ask for sixty guineas in respect of proceedings in this Court and in the lower court.

Adekola:-There were only four appearances in this Court.

I suggest thirty guineas costs.

Court:-I award forty-five guineas costs to the appellant whereof twenty-five guineas is in respect of costs in the lower court and twenty guineas in respect of costs in this Court.

Appeal allowed: Decision of trial President set aside and order striking out claim for want of jurisdiction substituted.