OKPOWAGHA & ANOR. V. EWAHEDIMA

• Pages: 165-170

OKPOWAGHA & ANOR. V. EWAHEDIMA

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165

OKPOWAGHA & ANOR. V. EWAHEDIMA

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OKPOWAGHA AND ANOR

V

10 EWHEDIMA

SUPREME COURT OF NIGERIA

.

LEWIS,

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J.S.C.

UDOMA,

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J.S.C.

15 FATAI-WILLIAMS, J.S.C.

1st May, 1970

APPELLANTS

RESPONDENT

SUIT NO. SC 38/1968

Evidence - Customary law - Mode of ascertaining custom appertaining to particular

area - Custom maybe established as judicially noticed or evidence may be

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called to establish it - Existence or non-existence of

custom

in a given area

is a question of fact - Onus on party alleging special requirements in a

custom to prove them - Evidence Act S..14.

ISSUES:

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1. What is the mode of ascertaining a custom appertaining to a particular area?

2. On whom rests the onus of proving the existence of a particular custom?

FACTS:

The plaintiffs claim against the defendants was for an order of court allowing

the plaintiff to redeem on paymet it of £6 by the plaintiff to the defendants a por-

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Lion of family land which the plaintiff's further pledged to the defendant's father for

£6 some years ago and for the recovery of possession of the said land under cus-

tomary law. The defendants alleged that the transaction in dispute was a sale not

a pledge. The trial Judge entered judgment for the plaintiffs whereupon the de-

fendants appealed on the grounds that there was no evidence before the trial

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Judge of incidents of a pledge of farm land applicable in lsoko Division and that

such facts could not be judicially noticed.

HELD:

1.

S.14 of the Evidence Act lays down the mode of ascertaining the custom

appertaining to a particular area of this country. Accordingly, a custom may be

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established as judicially noticed or evidence may be called to establish what a

custom is and to show that persons or a class of persons concerned in the

particular area regard the custom as binding upon them.

2.

While it was correct that there was no evidence that the custom relating to the

right in perpetuity to redeem a pledged land was the same in lsoko as that

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obtaining in Ghana or the Western State, the Supreme Court was not satisfied

that the decision of the trial Judge was based on

Agbo

Kofi v. Addo Kofi

and

Leragun and Anor v. Funlayo.

These cases refer not to the issue of whether

pledge land can be redeemed but whether permanent crops planted in such

land or the duration of the pledge covered constitute a bar to redemption.

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3. There was no evidence in support of the finding that in lsoko custom land

pledged is not redeemable. Such a custom was admitted by the 1st defendant

in cross-examination.