JUDGMENT OF TAYLOR J.
The plaintiff-respondent (hereinafter referred to as the respondent) sued the defendant-appellant (hereinafter called the appellant) in the district court claiming the sum of N¢300.00 as damages, apparently for adultery with his, the respondent's wife. His writ of summons at the District Court, Grade II, Tamale, contained the particulars of his claim formulated as follows: "Plaintiff claims damages the sum of N¢300.00 against the defendant for intentionally and unlawfully having sexual intercourse with the plaintiff's wife Muniratu whose child is under age which action is against Dagomba's customary rites."
It is clear from an examination of the respondent's claim that he wants his claim to be decided in accordance with Dagomba customary law, namely, the rules of law which by custom are applicable to the Dagombas. This brings into consideration the provisions of paragraph 64 (1), Rule 6 of the Courts Decree, 1966 (N.L.C.D. 84), which provides as follows:
"Rule 6. Subject to the foregoing rules, an issue should be determined according to the common law unless the plaintiff is subject to any system of customary law and claims to have the issue determined according to that system, when it should be so determined."
The applicability of this rule will be considered presently in this judgment. At the trial the district court grade II accepted the respondent's case. He took the view that the case he had to decide was the seduction of the "complainant's wife Muniratu while her child is young which is contrary to Dagomba customary rites." He concluded after examining the whole evidence in the case that: "The plaintiff has ... proved his case by preponderance of evidence as against defendant" and he gave judgment for the respondent and ordered the appellant "to pay N¢260.00 damages to the plaintiff plus cost assessed at N¢11.00."
It is against this judgment and order that the appellant appealed to this court. Eight grounds of appeal were filed as follows:
"(i) The judgment is against the weight of evidence.
(ii) The learned magistrate is wrong to infer that the mere presence of Muniratu Imoru in the room of the appellant means that the appellant had sexual intercourse with her.
(iii) The learned magistrate erroneously accepted the proof of custom as a point of law.
(iv) The learned magistrate erroneously assumed that he could substitute a new claim for the plaintiff 's original claim.
(v) The respondent failed to call a material witne
