AKINOLA ADARAMAJA V. CATHERINE ADARAMAJA
(1962) LCN/0961(SC)
In the Supreme Court of Nigeria
April 28, 1962
Case Number: : FSC. 150/1962
JUSTICES:
ADEMOLA, CHIEF JUSTICE, NIGERIA
DE LESTANG, CHIEF JUSTICE, LAGOS
TAYLOR, JUSTICE OF THE FEDERATION
APPELLANTS
ABIODUN OLALEKAN
RESPONDENTS
COMMISSIONER OF POLICE
RATIO
GROUNDS FOR DIVORCE: CRUELTY
“The classic definition of legal cruelty is “conduct of such a character as to have caused danger to life, limb or health (bodily or mental) or as give rise to a reasonable apprehension of such danger.” Per TAYLOR, F.J.
JUDGEMENT
TAYLOR, F.J (Delivering the judgment of the Court)
The appellant was tried in the Egba Grade “A” Customary Court, Abeokuta, on two counts, which read as follows:
1. That you Abiodun Olalekan on the 25th day of May, 1961, at Ijaiye, Abeokuta in the jurisdiction of Ake Grade `A’ Customary Court Area, unlawfully did grievous harm to Emmanuel Odejimi, and thereby committed an offence punishable under Section 274 of the Criminal Code, Cap. 28, Vol. 1, Laws of the Western Region of Nigeria, 1959.
2.That you on the 25th day of May, 1961, at Emmanuel Odejimi’s Bar, Ijaiye, Abeokuta, conducted yourself in a disorderly manner, and at the same time refused to be ejected out by the said Emmanuel Odejimi a licensed person, and thereby committed an offence contrary to section 41(1) and punishable under section 41(2) of Liquor Laws, Cap.65, Vol.III, Laws of the Western Region of Nigeria, 1959.”
He was found guilty by the President and accordingly sentenced. It should be pointed out that at no stage of the trial was any point raised as to any defect in the joinder of the above counts. On appeal to the High Court, the conviction was upheld and the appeal dismissed. Against the Judgment of the High Court the following two grounds were filed and argued, to wit:
1.That the trial in the Customary Court is a nullity because there is no express provision in the Customary Court rules for the joinder of offences.
2.That trial and convictions are nullities because the Customary Courts have their own rules and therefore they have no jurisdiction to try unrelated offences jointly.”
Learned Counsel for the appellant’s argument is based wholly on the proposition that the Customary Courts, in the absence of any provision to the contrary, must administer Common Law and apply the Common Law rule, by which offences of different kinds tried together were bad, with the result that the trial before the Customary Court President was a nullity. He has rested his arguments on the decision of Charles, J., in Karimu Salisu v. Superintendent of Police, (1960) W.N.L.R., Part IV, page 213, which decision the Judge on appeal in the High Court in this case declined to follow. At page 214 of the above reported case, Charles, J., says this:-
The rule of law against the joinder of Counts alleging offences of different kinds continues, like all common law rules, to apply except so far as it has been abrogated either expressly or by necessary implication by Statute (c.f. Murugiah v. Jainudeen, (1954) 3 W.L.R. 682. P.C.). The Criminal Procedure Ordinance has abrogated that rule but only in respect of the joinder of Counts in the High Court and Magistrates’ Courts, so that rule remains applicable to the Customary Court unless the Custom-ary Courts Law, 1957, has itself abrogated it. The Customary Courts Law, 1957, is silent upon the point, with the result that the Common Law rule applies to joinder of Counts in the Customary Courts.
Beckley, J., in dealing with this authority, made reference to s.19 of the Customary Courts Law, which provides for the law to be administered in the Customary Courts, and after making reference to other provisions of the law, went on to hold that:–
The two offences in this appeal were committed in the course of the same transaction. I am of the view, therefore, that bearing in mind the origin of the Customary Court, the relevant provisions stating what law should be applied in the Customary Courts, the Common Law cannot apply in this case.
In our view the reasoning of Beckley, J., in his Judgment leaves no room for doubt as to its soundness. As he said, the Customary Courts in Nigeria are survivals of the old Native Courts to which the Common Law and some of its technicalities are unknown and foreign. They provide for a quick, simple and, in civil cases, an inexpensive form of determining matters brought before them. Undoubtedly there was no bar to the types of offences that were originally brought before them nor was the technicality of joinder known. The major consideration was the dispensation of substantial justice. Now, with the supersession of these Courts by the Customary Courts and the limitation of their powers or jurisdiction both in civil and criminal matters, part of the law still to be administered is Customary Law, and we are of the view that the absence of any mention of the Common Law in s.19 is an answer to the arguments of learned Counsel in this appeal. It seems to us that the error into which learned Counsel for the appellant has fallen is in taking it for granted that the Common Law applies in customary Courts and that if they are not to be applied, then specific provisions must be made negativing their application. The case of Murugiah v. Jainudeen, (supra) referred to by Charles, J., in his judgment does not help. It was a case originating in the District Court of Matale, Ceylon. What the constitution of that court is or what its jurisdiction and powers consist of would have to be considered before any rule applicable there could be said to be applicable to the Customary Courts in Nigeria, quite apart from the fact that the case was a civil one dealing with the construction of s.35 of the Matrimonial Rights and Inheritance Ordinance of Ceylon.
If it were the intention of the framers of the Customary Court Rules, Cap. 31, Vol.11, Laws of the W.R.N., 1959, that there shall be no joinder of felonies with misdemeanours or simple offences, one would have thought that specific provision would be made to that effect in Order 9 of such Rules, and its absence seems to imply that such a joinder is perfectly in order. In this respect, too, s.55 of the Customary Courts Law is pertinent in that (i) it ap-pears that what is required in the main in proceedings in Customary Courts is that substantial justice shall be done without undue regard to technicalites, and (ii) that objections of this nature shall be raised in the court of trial. It provides thus:-
No proceedings in a Customary Court and no summons, warrant, process, order or decree issued or made thereby, shall be varied or declared void upon appeal solely by reason of any defect in procedure or want of form but every Court exercising powers of appeal under this law shall decide all matters according to substantial justice without undue regard to technicalities.”
It is unnecessary to deal with the case of Ganiyu & 3 Ors v. Superintendent General of Police (1959) W.N.L.R., Part IV, 307, as it is not relevant to the point in issue, dealing with the regularity or otherwise of proceedings before a Customary Court sitting at various stages with a different panel of assessors.
There has been no appeal on the facts nor has learned Counsel argued that substantial justice was not done in the court of trial. In our view there is no substance in the appeal and it is dismissed accordingly.
Appeal dismissed.
