D.W. Lewis & Others v Bankole & Others [1909] NGSC 1 (12 July 1909)

D.W. Lewis & Others v Bankole & Others [1909] NGSC 1 (12 July 1909)

In The Supreme Court of Nigeria
On Thursday, the 12th day of July 1909
Before Their Lordships
Sir Willoughby Osborne
......
Chief Justice
Packard
......
Justice, Supreme Court
Winkfield
Justice, Supreme Court
Between
D.W. Lewis & Ors
.....
Appellant
And
Bankole & Ors
.....
Respondent
Judgement of the Court
Delivered by
Sir Willoughby Osborne. C.J.
Chief Mabinuori died in 1874, leaving a family of twelve children, the eldest of whom was a daughter. He was possessed of three piece of land: on one, the family compound, he lived with his wives and some of his children and domestics; on another he built houses for his eldest daughter and two of his sons; whilst the third was dedicated to the worship of the family fetish. In 1905 an action was brought by certain of Mabinuori's grandchildren, including the issue of the children for whom separate houses were built, against certain of the occupants of the family compound who were daughters of Mabinuori and children of a deceased younger son. The claim was for a declaration (1) that the plaintiffs were entitled, as grandchildren of Mabinuori, in conjunction with the defendants, to the family compound, and (2) that the family compound was the family property of Mabinuori deceased. On the case coming on for trial before Acting Chief Justice Speed, the learned judge directed the issue to be tried whether the plaintiffs had received an amount which disentitled them to any share in the property in question, and after hearing the evidence delivered the following judgment on the 18th November, 1908: - This is a case of very considerable importance not so much from the nature of the property in dispute or the magnitude of the interests concerned as from the fact that perhaps for the first time the Court is asked to make a definite pronouncement on the vexed question of the tenure of what is known as family property by native customary law, and the principles upon which that law should be enforced. It is of course well known that the Colony of Southern Nigeria is under the sovereignty of the British Crown, and the law applicable to the Colony and in force within the jurisdiction of this Court is the Common Law of England, the Doctrines of Equity, and the Statutes of General Application which were in force in England on the 1st day of January, 1900. This is enacted by the 14th section of the Supreme Court Ordinance. But by subsequent sections an important modification is introduced. By section 18 it is provided that law and equity are in all cases to be administered concurrently and that in case of conflict the rules of equity shall prevail over the rules of the common law, and by section 19 it is provided that the Court may observe and enforce the observance of any law or custom existing in the Colony and Protectorate subject to its jurisdiction, such law or custom not being repugnant to natural justice, equity and good conscience nor incompatible with any enactment of the legislature, and it is further provided that such laws and customs shall be deemed applicable particularly as between natives and natives and inter alia in causes and matters relating to the tenure and transfer of real and personal property.
It is clear therefore that this is a case in which the Court is entitled if not actually directed to observe and enforce the observance of native law and custom and it must not be forgotten that the native law and custom which the Court is empowered or directed to observe must have two essential elements: it must be existing native law or custom and not the native law or custom of ancient times, and it must not be repugnant to natural justice, equity or good conscience.
Now as to the first essential, native law or custom must be existing native law or custom and not the law or custom of a bygone age. It is perfectly well known that by strict ancient native law all property was family property and all real property was inalienable, and it is equally well known that a very large portion of the land upon which this town is built is now owned by individuals and that family ownership is gradually ceasing to exist. In a progressive community it is of course inevitable that this should be so. The institution of communal ownership has been dead for many years and the institution of family ownership is a dying institution and it is idle to expect this Court at this time to make use of a power which was given to it in order to avoid or mitigate the individual hardship and injustice which would necessarily be incidental to the abolition of a primitive native system and the immediate substitution of modern methods, in order to perpetuate or bolster up what is at the best only an interesting relic of the past. I do not wish for a moment to be understood to be speaking with any disrespect of the customs of your ancestors. There was much that was admirable and much which I hope will be retained for many years in the family system which they evolved, but it can hardly be denied that their ideas as to ownership of property were utterly unsuited to modern requirements, that these ideas have been dying a more or less natural death ever since the people of this country entered into commerce with European nations, and that sooner or later either the legislature of the Colony or this Court in the exercise of its equitable jurisdiction will have to give the coup de grace to the whole system. As to the second essential I am not sure that I know what the terms " natural justice and good conscience” mean. They are high sounding phrases and it would of course not be difficult to hold that many of the ancient customs of the barbaric times are repugnant thereto, but it would not be easy to offer a strict and accurate definition of the terms.
But with regard to equity the case is quite different. The rules of equity are, or ought to be, perfectly well known to this court and if a native law or custom is found to be repugnant to the fundamental rules of equity it is absolutely the duty of the Court to ignore it. I have over and over again expressed the opinion in this Court and I repeat it with all the emphasis which I can command that any attempt to revive an obviously stale claim, to constitute a state of affairs which has been openly or tacitly abandoned by all concerned, to upset a settlement which has been acquiesced in by all parties for a long time and upon which all parties have by mutual even though tacit consent acted for a number of years, is repugnant to the fundamental rules of equity and should not be countenanced by this Court on the ground that it is in accordance with native law or custom, however harmless, nay, however admirable, that native law or custom may be. So much for general principles and now for the facts of this case. The property in dispute is a block lying on the north side of Bishop Street between the Marina and Broad Street known as Mabinuori's Compound. Together with many properties in the vicinity it was many years ago acquired by Mabinuori and has ever since been occupied by members of his family. An attempt was made, I don't quite know for what purpose, to show that the land originally was Oshodi's land, but be that as it may it was granted by the Crown to Mabinuori in January, 1869, on which date also a crown grant to the same Mabinuori was issued for another property lying south of the premises now occupied by Messrs. Gottschalck on the other side of Broad Street which is referred to throughout these proceedings as Fatola's compound. Mabinuori was a man of wealth, influence and position and had a large family for whom from time to time he made provision as occasion arose by placing them in possession of houses or rooms erected on one or other of his properties. His eldest son was one Fagbemi who also won a position of wealth and influence in the community, who in fact before his father's death was probably the wealthier and more influential of the two. In any case it appears on one occasion he paid the old man's debts and he certainly obtained a crown grant for a considerable property in Bishop Street behind Messrs. Gottschalck's premises which was in all probability originally part of the Mabinuori's estate as early as August, 1868, or a few months before the issue of the crown grants for the properties above mentioned to Mabinuori himself. Fagbemi then, it is clear, however he acquired this property, whether, as is alleged in evidence and as I am much inclined to believe, by gift from Mabinuori or in any other way, had attained an independent position before the father's death and upon the death of Mabinuori which took place in 1874, was recognised as the unquestioned head of the family. As to the other members of the family the defendants or their ancestors were all settled on the property in dispute. Fatola, Oduntan and Odubi were settled on what is known as Fatola's compound. Fagunwa was settled elsewhere on
a property which was originally purchased by Layemi, who was one of the Mabinuori's wives, either on her own account or as a member of the family, and for which a crown grant was issued to her in 1869. This was the position at Mabinuori's death. Now I have no hesitation in saying that Mabinuori never intended his property to devolve in any other way than in accordance with the ordinary native custom and it is quite possible that had they thought fit to do so all his descendants or their representatives might have claimed and made good their claim to share in the whole inheritance at his death. But what actually happened? With the exception that Fagbemi was the recognised head of the family instead of Mabinuori and as such took the usual part in the performance of the family duties and no doubt being a wealthy and influential man occasionally assisted his less fortunate relations with his purse, everything went on as before. No attempts were made to re-allot the dwelling houses but each branch of the family continued to occupy the premises assigned by Mabinuori or acquired before Mabinuori's death. This is a substantially accurate description of the position at Fagbemi's death also, though there is evidence of isolated acts of ownershin exercised or attempted to be exercised by certain members of the family outside the limits to which they were apparently generally content to be confined. For instance Fagbemi himself for a time occupied certain portions of the compound in dispute as a salt and spirit store, though it is by no means certain that this occupation did not commence before Mabinuori's death, and it is clear to my mind that it never was intended or understood to involve a claim to ownership on Fagbemi's part. Similarly David Lewis tried once to build on the property but was restrained by his own mother Fatola, and James Lewis had a horse, a few fowls and a few empty cases on the premises at a recent date. Fagbemi died in 1881 and after his death Ben Dawodu became if not the recognised head of the family at all events the most influential member. Still the position remained unchanged. Still the same people or their representatives continued to occupy the same premises and still no attempt was made to re-allot or in any way interfere with the occupation. Certain differences of opinion did arise between the occupants of the property in dispute and Ben Dawodu, but there was nothing to show that there was any desire or any intention on the part of any of the family to alter existing arrangements. And so the situation continued up to the commencement of this action. Now to these facts I am asked to apply strict native law and custom and to declare that the property has always been the family property of Mabinuori's family and that defendants who have been in undisputed occupation for upwards of 30 years should now be told that they are only joint owners with the rest of the family. I am asked to throw the property into the melting pot of an acrimonious family feud. I have no doubts that plaintiffs have native law and custom on their side. I mean native law and custom as it was understood and possibly applied 40 years ago, but I decline to say that it is existing native law and if it is I am confident that it is my duty to decide that it is repugnant to the principles of equity and to refuse to enforce it. On the ground therefore that by tacit mutual arrangement and acquiescence of all parties extending over a number of years these various properties have been separated and come to be considered as separately owned, I find on this issue in favour of the defendants and as this finding is necessarily fatal to plaintiffs' claim, I give judgment on the whole action for the defendants with the costs of the hearing before me. I say nothing about the previous hearing because it was in my opinion not completed. The costs I assess at 50 guineas. Against this judgment the plaintiffs appealed. Williams Ajasa for the appellants. Shyngle and Foresythe for the respondents. On the 15th May, 1909 judgment was delivered in the Full Court. In this action the claim of the plaintiffs was for a declaration that they are entitled as grandchildren of Mabinuori deceased in conjunction with the defendants to all that piece or parcel of land situate and lying between the Marina and Broad Street in Lagos being the property of the late Mabinuori deceased and also that the said property be declared the family property of the said Mabinuori deceased. The wording of the first part of the claim would seem to imply that the plaintiffs claim a declaration that they are entitled to the joint ownership of the land in dispute as tenants in common in equal shares with the defendants, and this is evidently the view that was taken by the learned judge whose decision is now appealed against. Yet at an early stage of the proceedings before the late Chief Justice Nicoll, defendants' counsel informed the court that the only point then in dispute was who was to be head of the house, and it was not until one of the plaintiffs had insultingly declined to accept the advice of the chiefs nominated by the court to advise the family in their election that the defendants seem seriously to have claimed that the land in dispute was their separate property to the exclusion of the other members of the family. A
protracted trial before Chief Justice Nicoll was unfortunately interrupted by his death, and fresh proceedings were started before Acting Chief Justice Speed. The defendants then admitted that the land in dispute was Mabinuori's property, but claimed that the plaintiffs were not entitled to any share therein because they or their ancestors had already received all the shares to which they are entitled. The court then directed an issue to be tried whether the plaintiffs had received an amount which disentitled them to any share in the property in question. On the ground that by tacit mutual agreement and acquiescence of all parties extending over a number of years the property in dispute, together with the other properties of Mabinuori had been separated and had come to be considered as separately owned, the court found on this issue in favour of the defendants, and grave judgment for them on the whole action. It is contended that this finding was against the weight of evidence, and with that contention I agree. Three properties are admitted to have belonged to Mabinuori at the time of his death, viz; Fatola's compound, the Oke Popo property, and the land in dispute. It is certainly the fact that Fatola, Odubi and Oduntan, all children of Mabinuori, have continuously occupied Fatola's compound; but the crown grant of the land was taken by Mabinuori, who placed them on the land, in his own name, only five years before his death; and the deed was retained by the head of the family, and not by Fatola, until somewhere about 1888, when it was eventually, after a short period of custody in the hands of Layemi, Fatola's mother, who unsuccessfully claimed part of the land in dispute for herself, handed over for safe keeping to one of the Lagos chiefs together with the crown grant of the land in dispute. Moreover, the possession of Fatola, Odubi, and Oduntan, and their children is not possession adverse to the family of whom they form part. The property at Oke Popo was evidently not treated as separately owned, for a portion of it was sold to meet some family expenses. There is to my mind abundant evidence to negative the conclusion that the compound in dispute was ever looked upon as separately owned by the defendants. The present occupiers include besides the defendants themselves a daughter of Fatola and sister of the plaintiff Lewis who lives in one of the largest dwellings in the compound, formerly the habitation of her grandmother Layemi; a son of Odubi, whose family are also amongst the plaintiffs; one of Mabinuori's wives; and two of his domestics. There are stores on the land which Fagbemi, Mabinuori's elder son, and head of the family, made use of for trading up to the time of his death in 1881, without paying any rent, and which was subsequently used for some time by Ben Dawodu, his eldest son, who was looked on as the head of the family, also without payment of rent. When these stores were let to European firms in Ben Dawodu's lifetime it was he, and not the defendants, who entered into the agreements in his own name, and for a while collected the rents of both, though a year or two before his death in 1900 it was arranged that the defendants should take the rents for the Broad Street store. Fagbemi also built a store on the land, and brought Docemo, one of Mabinuori's children, to reside on the land, and had actually collected the materials for building in the compound houses for his sisters Faleye and Apotun, two of the defendants, when he died. I can find as against these facts no evidence to show that the land as a whole was ever looked on as the sole property of the defendants, though their right of occupation, which again is not adverse to the plaintiffs, has always been acquiesced in. I do not, however, consider that the plaintiffs have proved their claim to the relief asked, and had that claim been for absolutely equal ownership rights as tenants in common with the defendants, entitling them to disturb the defendant’s possession, I would have bad no hesitation in following the learned judge in the court below, and finding that the application of such a native law would be inequitable. But before this Court the extent of the claim has been very considerably modified, and the plaintiffs now admit that by native custom they are not entitled to disturb the defendants in their rights of occupation; they still, however, claim a right to occupy any part that falls vacant, a right of ingress and egress, and, what is really the cause of all these proceedings, a right to be consulted before alienation, and to share in the proceeds.The value of the site of the land at the present time is considerable, and is likely to increase with the expansion of Lagos. Plaintiffs' counsel could only assert their rights in a general way, and defendants' counsel disputed the correctness of their pronouncement of the native law. There is no evidence, and nothing on the pleadings, to show what are the exact rights claimed by the plaintiffs to be exercisable by native law or custom, and these must be definitely ascertained and they must fall within the provisions of section 19 of the Supreme Court Ordinance before this Court can give effect to them. A Court of Appeal cannot be expected to take the evidence, and I am of opinion that the best course to ensure the determination of all the matters in dispute between the parties will be to remit the action to the court below to complete the hearing by taking evidence as to the native law or custom, if any, governing the circumstances of the case, and to pronounce judgment on the whole claim after consideration of the applicability of such native law or custom if any, under section 19 of the Supreme Court Ordinance. Judgement of Winkfield, J Read by Packard, J. This is an appeal from the judgment of the Divisional Court of the Western Province. The plaintiffs who represent the children of Fatola, Fagbemi. Odubi, Oduntan and Fagunwa, children of Mabinuori deceased, claim a declaration against the defendants, children of Mabinuori deceased and the children of Soni Dosunmu deceased a child of Mabinuori, that the children of Fatola, Fagbemi, Odubi, Oduntan and Fagunwa are entitled in conjunction with the defendants to a piece of land between the Marina and Broad Street, Lagos, being the property of Mabinuori, deceased, and also that the said property be declared the family property of the said Mabinuori deceased. The defendants contended in the court below and before this Court that Fatola, Fagbemi Odubi, Oduntan and Fagunwa received parts of Mabinuori's property from him and are thereby precluded from claiming any interest in the property in
question. From the evidence it appears that Mabinuori acquired some time ago — probably about 1851 — the property in dispute and certain other properties in the vicinity. He built a house upon the land in dispute and resided there with his wives, children, and domestics. His eldest son Fagbemi gained a position of wealth some time before the father died and occupied a piece of land at Bishop Street with his wife and some of Mabinuori's domestics. He acquired several pieces of land. Among them he acquired the piece at Bishop Street as his own property. The crown grant dated the 20thAugust, 1868, was made out in the name of Ben Dawodu, a name by which he was also known. Fagunwa was placed by Mabinuori on a piece of land which was subsequently expropriated by the Government. Fagunwa then went to reside on a piece of land at Balogun Street which was owned by his mother, Layemi; Layemi paid for the land and the crown grant was made out on her name. Fagunwa died at Balogun Street. His children lived there at the commencement of this action. Upon another piece of land Mabinuori built houses for his daughter Fatola and his sons Odubi and Oduntan. There is no evidence to show that he intended that they should be the owners of the land. I consider that they had the right only to occupy the land as members of Mabinuori's family. For this piece of land Mabinuori obtained a crown grant in his own name in 1869. I do not consider that the fact that Mabinuori provided houses for his children disentitled them to interests in the land in dispute. At Mabinuori's death the piece of land which he owned became family property. The defendants, as his daughters, or their fathers or mothers as his children were entitled to reside on the land in dispute subject to and in accordance with native law and custom. After Mabinuori's death, Fagbemi became head of the family. Fagbemi died in 1881. While head of the family he used two stores on the land and paid no rent for them. He was recognised by the members of the family as their head. After Fagbemi's death, Ben Dawodu assumed the headship. His position was not challenged. He used the stores as his father Fagbemi had done, and also did not pay rent for them. He repaired Mabinuori's house on the land in dispute and, generally, acted as a head of a family when circumstances required. It would seem that both Fagbemi and Ben Dawodu used the stores in pursuance of their rights as heads of the house. When Ben Dawodu was head, he received the rents of one of the stores, and used them for his own purposes. He was charged with wasting the family property, and an arrangement was made under which the defendants or some of them received the rents. Ben Dawodu died in 1900 and after his death the defendants who are daughters of Mabinuori assumed the management of the land in dispute. They received the rent of a shed and a blacksmith's shop. In 1906 they entered into an agreement with a European firm for the lease of one of the stores on the land. James Dawodu, a son of Fagbemi, objected. In July, 1905, a family meeting was held at which the defendants claimed the land as their property. The writ of summons was issued on the 19th December, 1905. When Ben Dawodu died in 1900 no head of the family was elected. To the fact that there was no head of the family the dispute which had arisen between the members was no doubt due. When the case first came on in the court below, the Court was informed by counsel for the defendants that the only matter in dispute was the question who should be head of the family. This was on the 24th April, 1906. When the case next came before the Court for trial on the 27th December, 1906, the defendants then asserted that the land was theirs. The defendants have no doubt occupied the land in dispute for many years but in my opinion they have been in possession as members of the family of Mabinuori in accordance with and subject to native law and custom. They have not been in possession adverse to the rights of the other members of the family. Under native law the plaintiffs have joint interests on the land with the defendants. I can find no reason, based upon any law or the principle of equity, why native law should not be applicable in this case. The defendants have the right to occupy the land in dispute subject to and in accordance with native law but they cannot alienate the land without the consent of the chief member. In my opinion the judgment of the court below should be reversed and judgment entered for the plaintiffs.
Judgement delivered by
Packard, J.S.C The plaintiffs' claim is twofold (1) a declaration that they are entitled as grandchildren of Mabinuori deceased in conjunction with the defendants to all that piece or parcel of land situate and lying between the Marina and Broad Street, Lagos, being the property of the said Mabinuori deceased. (2) that the said property be declared the family property of the late Mubinuori deceased.
Pleadings were delivered and various events and proceedings took place which it is unnecessary to specify in detail, until eventually the whole matter came for trial before the learned Acting Chief Justice. He then made an Order under Order 32 rule 2 in the following terms: " The first question to decide is whether the plaintiffs have received an amount which disentitled them to any share in the property in question. The Court orders that issue to be tried first." The issue was tried accordingly and the defendants began. At the close of the defendants' evidence on this issue the following note appears upon the record: "The defendants' case on the issue before the Court - subject to any reference which the Court may make under section 111 of the Supreme Court Ordinance as to the native custom applicable." Evidence was then given for the plaintiffs on this point and the learned judge on this preliminary issue found in favour of the defendants and decided that they were estopped by their own conduct from bringing this action. In his judgment he says "I find on this issue in favour of the defendants by tacit mutual agreement and acquiescence of all parties extending over a number of years these various properties have been separated and came to be considered as separately owned. No doubt the plaintiffs have native law and custom on their side, but I decline to say it is existing native law and if it is I am confident that it is my duty to decide that it is repugnant to the principles of equity and to refuse to enforce it” So far as actual residence on the property by the defendants is concerned, I think there is abundant evidence to support the conclusion of fact, and I gather from the arguments of counsel for the plaintiffs that they do not - even at this stage - claim any right to eject the defendants from these portions of the property they occupy or possess as residence. But apart from the question of residence there are portions of the property which have been used or let as stores and for trading purposes and in the profits therefrom the plaintiffs claim to participate in accordance with native law and custom and it appears from the evidence that these rights have not only been asserted during the period in question, but have in fact been exercised from time to time by, at any rate, one branch of the families who are plaintiffs and that there have been constant disputes on this point which culminated in the present action. I think therefore that the finding of fact that the plaintiffs have acquiesced for a long period in the whole of the property in dispute being considered as separately owned by the defendants is against the weight of evidence. I am also of opinion that such acquiescence as has been established in this case does not in law preclude the plaintiffs from bringing this action. The principles upon which the rule of equity may be applied in such cases are set out in Black v. Gale (55 Law Journal Chancery 559) and Chadwick v. Manning (1896 Appeal cases 331). See also Palmer v. Moore (Law Reports 1900, Appeal cases 293). I have not been able to find any case in which this doctrine of equity has yet been carried as far as the case before us. I am therefore of opinion that this appeal should be allowed and that the defendants having failed on the preliminary issue the action must proceed, and must be remitted to the Divisional Court to try the remaining issue. At the informal discussion yesterday on the issues raised, counsel for the appellant were good enough to indicate to us in general terms some of the benefits and obligations which under native law might possibly accrue to the parties in respect of this property. No doubt evidence will be adduced on these points in the Divisional Court and it would be premature at this stage of the proceedings without any sufficient evidence or findings of fact before us to express our opinion as to the native law or even to assume without proof that under the peculiar circumstances of the case there is any native law applicable at all. The Full Court ordered that the judgment of the court below on the issue tried under Order 32 rule 2 be set aside, and that the cause be remitted to the court below to take additional evidence as to what native law or custom, if any, would regulate the several matters in dispute, and such further evidence as the Court may think proper, and either to pronounce final judgment on the merits, or to state a case for the opinion of the Full Court. The case was resumed in the Divisional Court before Osborne, C.J., and conflicting evidence was adduced as to the native law applicable. On the 29th June, 1909, the following Chiefs of Lagos were in attendance, viz: Chief Ojora, Chief Eletu Odibo, Chief Oloto, and Chief Onitano, white-capped chiefs, and Chief Ashogbon, a war chief. The Court caused them all to be sworn and addressed them as follows: "You are here as expert witnesses on the native law of Lagos, and I want you to judge the cases I am going to put before you as if you were sitting to judge them in a native court. You may deliberate before giving your answers, but I shall take a separate answer from each of you, and of course that answer will be on oath." The Court then propounded certain cases, which summarised the different views put forward, and were framed with regard to the actual facts. The first was as follows:
"Suppose a man whom we will call Ladipo was formerly a slave, but afterwards became a free man and a rich trader, and bought two pieces of land, one a large piece and the other a small piece of land. He has two wives and by them he has four children. The eldest child Layinka is a daughter, the next child, Bankole, is a son, the third is Ayodele, another daughter, and the youngest is Oke another son. "Ladipo builds himself a big house on the part of his big piece of land, and builds a room in the compound for each of his two wives. Bankole, his eldest son, grows up and Ladipo gives him a wife, and builds him a house on behalf of the smaller piece of land. He also finds a husband for his eldest daughter Layinka, and builds her a house on the other half of the small piece of land. Then Ladipo dies. At the time of his death Layinka was living in the house built for her. Ayodele, the unmarried daughter, was living in her mother's room in the compound, and Oke, the youngest son was living in the big house with his father. “The four children meet together after the father's funeral, and Layinka, the eldest daughter, says “I am the eldest child, and by native law I am entitled to be head of the family and to give

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