Appeal Court, 8th May,
1941.
pg
69
Family
property-Thirty years' lease
without consent of Overlord
family-Rights
forfeited. thereby What
constitutes.
misbehaviour involving
forfeiture ?-Must
be challenge to Overlord's
rights-Every case to be
considered on its own facts.
Held: Appeal dismissed.
There is no need to set out the
facts.
A. Alakija (A.
O.
Abayomi
with him) for Respondents.
E. J. Alem Taylor (A. Johnson
with him) for Appellants. The
following joint judgment was
delivered:-
KINGDON'; C.J., NIGERIA,
PETRIDES, C.J., GOLD COAST, AND
GRAHAM PAUL, C.J., SIERRA LEONE.
It is no longer in dispute
that:-
1.
The defendants-appellants are
descendants of Gbamgboye a
domestic of one of
plaintiffs-respondents'
ancestors.
2.
Gbamgboye was given permission
to occupy a portion of family
land in accordance with Native
Law and Custom.
3.
The defendants-appellants have
leased the property in dispute
to Paul Jazzar for a term of
thirty years without the consent
of the plaintiffs-respondents.
When
the plaintiffs-respondents
claimed a declaration that the
defendants-appellants had
forfeited. their customary
rights of occupation and
interest in the property as
descendants of domestics of
plaintiffs-respondents' ancestor
the defendants-appellants
contested the claim. They filed
a defence in which they alleged
that their ancestor Gbamgboye
was the owner in fee simple of
the property and he and the
family had been in possession
for upwards of ninety years and
the plaintiffs-respondents never
had any right, title or interest
in the property. In this defence
they pleaded the Real Property
Limitation Act 1874 also Laches,
Acquiescence, Long Possession
and Stale Claim.
The defence of title appears to
have been' abandoned by the
defendants-appellants in the
Court below and was certainly
not relied on in this Court.
After reviewing a number of
authorities the learned trial
Judge came to the following
conclusion:-
"In the present case on the
authorities I have no difficulty
In •• hol9-ing that the conduct
of the defendants in executing a
lease of
pg 70 " family property
for thirty years to a stranger
without the consent of "the
family amounts to such
misbehaviour as to involve them
in the " forfeiture of their
rights and the plaintiffs are
entitled to the declaration
sought for."
We entirely concur with that
conclusion. It is obvious that
the leasing of the property by
the defendants-appellants to a
stranger for a long term of
years under a claim of ownership
constituted a direct challenge
to the plaintiffs-respondents'
rights and amounted to
misbehaviour entailing
forfeiture. But in thus
upholding the judgment of the
Court below, we wish to avoid
being thought to subscribe to
the proposition that in every
case the granting of a leasehold
amounts to alienation and so
connotes misbehaviour and
involves forfeiture. That in our
view is a most dangerous
proposition and would carry the
Native Law and Custom far
further than it has been
established by cases decided in
the Courts. The real question is
not how the word " alienation"
as used in any judgment is to be
interpreted, but what exactly is
the Native Law and Custom which
applies. The real foundation of
the misbehaviour which involves
forfeiture is the challenge to
the overlord's rights. This is
commonly shown by some form of
alienation and such alienation
may take the form, as in this
case, of leasing under claim of
ownership. But it is not (lifficult
to imagine cases in which the
granting of a lease,
e.g.,
for a short period, would carry
with it no challenge to the
overlord's right and
consequently involve no
misbehaviour or forfeiture.
Every case must be considered on
its own facts. The facts of the
present case leave no doubt as
to the misbehaviour. The appeal
is dismissed with costs assessed
at eighteen guineas.
