Family
property-Thirty years' lease
without consent of Overlord
Supreme
family-Rights
forfeited. thereby what
constitutes Court.
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 "thp family
amounts to such misbehaviour
as to involve them in the "
forfeiture of their rights
and the plaintiffs are
entitled to the declara"
tion 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
difficult to imagine ('ases
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 dimissed with costs
assessed at eighteen
guineas.
