AWOBOKUN & ANOR. V. ADEYEMI

• Pages: 260-263

260

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NIGERIAN SUPREME COURT CASES

[1970] N.S.C.C.

stayed indefinitely and is thereby divested of its legal force and effect even though

it has not been appealed against or set aside in any way recognised by law. The

learned Judge on appeal took the view that the respondent has established by evi-

dence that he was an infant at the time of the loan and therefore the transaction

was void. No oral evidence was taken by him and the claim of infancy had rested

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5

on the

ipse dixit

of the respondent as contained in his affidavit and that of is co-

debtor, Yesufu Elusanmi, who is his senior brother and indeed the principal bor-

rower from the present appellant. This issue even if it was relevant is hardly one

to be decided without evidence.

We are satisfied that both the Customary Grade "B" Court and the learned Judge

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10

on appeal completely misconceived the entire proceedings and learned counsel

for the respondent has had no argument of any substance in support of the judg-

ment which had been affirmed. The appeal succeeds and it is allowed. The Judg-

ment of the High Court, Oshogbo, in Suit No. HOS/49A/64, including the order for

costs, and that in the Customary Grade "B" Court, Ile Ife, including the order for

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15

costs there as well, are both set aside. It is ordered that the motion of the respond-

ent dated the 23rd July, 1962 be dismissed and this shall be the judgment of the

Court.

Appeal allowed.

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AWOBOKUN & ANOR. V. ADEYEMI

25

THEOPHILUS A. AWOBOKUN AND ANOR

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APPELLANTS

V

TOUN ADEYEMI

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RESPONDENT

SUIT NO. SC 206/1969

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30

SUPREME COURT OF NIGERIA

ADEMOLA,

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C.J.

COKER,

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J.S.C.

SOWEMIMO,

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J.S.C.

29th October, 1970

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35

Family Law - Matrimonial Proceedings - Caveat - Withdrawal of caveat by

caveatrix - Order by trial Judge that caveat is cancelled - whether caveat

properly removed - No hearing by trial Judge of matter before him - Whether

trial Judge can award costs and compensation to one side - Marriage Act

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SS.15,

16, 17.

ISSUE:

1.

Whether a caveat can be properly removed when there has been no hearing

on the matter by trial Judge.

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2.

Whether the trial Judge can award costs and compensation to one side without

having heard arguments on the matter.

FACTS:

The Respondent in this appeal filed a caveat against a notice of marriage be-

tween the 1st and 2nd appellant on the ground that the 1st appellant had married

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50

her according to native law and custom and she was expecting a baby for him.

She withdrew the caveat whereupon the trial Judge ordered that the caveat was

cancelled and ordered the caveatrix to pay costs and compensation to the appel-

lants.