There is no doubt that from the pleading and the evidence the respondents have denied the title of the appellants which is an act of misconduct under customary law. It is an act of misbehaviour which attracts the penalty of forfeiture Ojomu v. Ajao (1983) 2 SCNLR 156; Josiah Aghenghen & Ors. v. Chief Maduku Waghoreghor (1974) 1 S.C.1, Ajani Taiwo & Ors. v. Adamo Akinwumi & Ors. (1975) 4 S.C. 143.
— Olatawura, JSC. Ogunola v. Eiyekole (1990) – SC.195/1987
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Pam vs. Gwom (2000) FWLR 9Pt.1) 1 at 12 that: “The right of appeal from the Customary Court of Appeal to the Court of Appeal is as of right and must relate to any question of Customary Law and/or such other matters as may be prescribed by an Act of National Assembly that can extend this right by providing for such matters. Neither the Federal Military Government nor the National Assembly, made such other provision as envisaged in Section 224(1) of the 1979 Constitution. In the circumstances, for an appeal from the Customary Court of Appeal to the Court of Appeal to be competent, it must raise a question of Customary Law.”
Ayoola JSC: “The question therefore is: when is a decision in respect of a question of Customary Law? I venture to think that a decision is in respect of Customary Law when the controversy involves a determination of what the relevant Customary Law is and the application of the customary Law so ascertained to the question in controversy… When the decision of the Customary Court of Appeal turns purely on facts, or a question of procedure, such decision is not with respect to a question of Customary Law, not withstanding that the applicable law is Customary Law.”
The cases cited by learned Counsel for the parties namely Esugbayi Eleko v Officer Administrating the Government of Nigeria; In Re Whyte; Cole v Cole; Nwokoro v Onuma; Buhar of Kaligeri v Bornu Native Authority; Laoye v Oyetunde, deal with elementary principles of our customary law jurisprudence to wit that customary laws are part of the body of laws to be applied by the Court, the application of customary laws subject to the doctrine of repugnance, the essential ingredients of proof and incidents of customary laws.
– Nwokedi JSC. Agbai v. Okogbue (1991) – SC 104/1989
Native law and custom being a question of fact in an action in the High Court, it is true that the findings in these cases are not binding as precedents, and it is also true, as has been pointed out by Mr Oseni on behalf of the respondents, that however learned and experienced the Judges whose judgments are relied on may have been, they could only act on the evidence which the parties in the cases concerned chose to call before them.
Odunsi Lasisi Ajibola v. Aminu Akindele Ajani Ojora (1961)
When the learned trial Judge felt convinced that the fact of the customary law of Enugu-Ukwu relevant and material to the case ought to have been pleaded and proved, but was not, he could not have suggested to the respondents (plaintiffs before the court) to amend their pleadings. To have done so would have meant that he was aiding them to establish their case. But he could have advised himself that unless pleadings were duly amended, he could not raise the lack of proof of the fact, material as it was, suo motu, and proceeded to make an order of striking out on that ground. He could have properly called on counsel on both sides at the address stage of the proceedings to address him on the propriety of a non-suit as, unlike in Lagos State, for which see Anyakwo v. A.C.B. Ltd. (1976) 2 S.C. 41, pp. 55-65; Lawal v. National Electric Power Authority (1976) 3 S.C. 109, p.135, a decree of non-suit is still available in Anambra.
— Nnaemeka-Agu, JSC. Ugo v Obiekwe (1989) – SC.207/1985
It is a settled position of law that, by Yoruba Customary Law, a transaction for the sale and conveyance of family land requires the consent of all members of the family or substantial majority of them. See AFOLABI COKER VS MARIAMO OGUNTOLA & ORS (1985) 2 NWLR (Pt. 87); ELIAS VS OLAYEMI DISU & 3 ORS (1962) 1 ALL NLR 214; FOKO VS FOKO (1965) NMLR 3, EBOSIE VS EBOSIE (1976) 6 UILR 217.
— S.D. Bage, JSC. Onyekwuluje v Animashaun (2019) – SC.72/2006
Distinguishing these cases from the instant case, the Court of Appeal correctly held that the marriage between P.W.1 and the appellant was shown to be under native law and custom. In further distinguishing the cases, the Court of Appeal referred to the facts. In Rimmer v. Rimmer (supra) both husband and wife were wage earners. They bought a house in the name of the husband as the matrimonial home. The wife provided the deposit for the house. The rest of the purchase money was borrowed on the security of a mortgage from a building society in the name of the husband. Part of the principal of the mortgage money was repaid out of the housekeeping money provided by the husband. The remainder was repaid by the wife out of her money at a time her husband was on war service. The wife provided all the furniture for the home out of her own resources. When subsequently, the husband left the wife and the house was sold, the proceeds was shared equally between them on a summons under section 17 of the Married Women’s Property Act 1881 (U.K.). This was because it was not possible fairly to assess the separate beneficial interests of the husband and wife by reference to their contributions to the purchase of the house. In the instant case, the Married Womens’ Property Act 1881 (U.K.) is inapplicable since the marriage is governed by customary law.
– Karibe-Whyte JSC. Amadi v. Nwosu (1992)
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