TOMORI AND ORS. V. MOTANMI AND ORS.

• Pages: 230-235

230

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NIGERIAN SUPREME COURT CASES [1970] N.S.C.C.

TOMORI AND ORS. V. MOTANMI AND ORS.

5

1.

CHIEF RAJI TOMORI

2.

TAFA BARBER

3.

AMINU OLADOSU

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10

4.

SALAMI OJO

5.

YINUSA SULE

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APPELLANTS

6.

BURAIMOH AYANDOSU

7.

OSENI AREMU

8.

BELLO AYANTOLA

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15

9.

BENJAMIN OJO

V.

1.

HOSIAH MOTANMI

2.

TIMOTHY ACENIJI

3.

ANDREW ABIOYE

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RESPONDENTS

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20

(for themselves and on

behalf of AWOYALE family)

SUIT NO. SC 146/68

SUPREME COURT OF NIGERIA

ADEMOLA,

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C.J.N.

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25

MADARIKAN,

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J.S.C.

SOWEMIMO,

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Ag.J.S.C.

1st July, 1970

Land Law - Claim for declaration of title - Damages for trespass - Injunction

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evidence of long and undisturbed possession and traditional history by both

parties - Trial Judge taking notice of 'unproved custom' - Non compliance

with provisions of s.14(2) and s.73(1)(1) of Evidence Act - Effect of.

ISSUE:

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1. Whether it is proper for a trial Judge to take judicial notice of a custom that has

not been proved.

FACTS:

The plaintiffs/respondents had instituted an action in the Oshogbo High Court

claiming jointly and severally against the defendants a declaration of title to a par-

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cel of land at Oba in Oshogbo District, £100 damages for trespass and a restrain-

ing injunction. Boti parties based their claims on traditional history and long and

undisturbed possession of the land.

The trial Judge after reviewing the evidence before him held that the plaintiffs

had failed to prove that they were in exclusive possession of the land and dis-

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missed their claim.

The plaintiffs then appealed to the Western State Court of Appeal which allowed

the appeal and ordered that judgment be entered for the plaintiffs in terms of their

writ of summons. The defendants appealed.

On appeal, it was contended

inter alia

for the appellants that the Western State

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Court of Appeal was wrong when it criticised the portion of the trial Judge's judg-

ment where he stated that the parties to the action agreed that the area in dispute

was within the Oba Town wall, and also that he took judicial notice that the land