Native Law
and Custom-Lagos-Family
Land-Gift by Chief Oloto to
member of family without
concurrence of family.
The Supreme
Court was asked to decide
between two persons claiming
ownership of land compulsorily
acquired by the Board.
The first
claimant relied on a certificate
of purchase from the Court given
him as the purchaser at a sale
in 1940 in execution of a
judgment against members of the
Oloto Family sued as
representing the Family; so his
claim depended on the interest
the Family then had in the land.
The second
claimant alleged that he bought
from one L., who said he had
bought from one B.O., a member
of the Oloto Family, to whom it
was alleged that in 1928 the
Chief Oloto of the time made a
gift of the land. Of this gift
the present Chief Oloto was not
aware; nor did B.O., or L., or
the second claimant, ever enter
into possession.
The trial
Judge held that L. had acquired
an interest which passed to the
second claimant; and the first
claimant appealed.
For the
second claimant, the respondent,
it was argued that a Chief Oloto
can make a gift of Family land,
without the Family's
concurrence, to a member of the
Family and if the donee
alienates to a stranger, it
would be voidable at the
Family's instance but not void
ab initio.
Held:
It was for the respondent to
establish that native law and
custom in Lagos recognises gifts
of land to individual members of
the Oloto family by the Chief
without the concurrence of the
family.
Case cited:-
(1) Kwansi
Manko and ors. v. Bonso
and ors., (Gold Coast) 3
W.A.C.A., p. 62. Appeal by
the first claimant against the
second claimant in a compulsory
acquisition
case: No. 3585.
F. R. A.
Williams for Appellant. .
O. LaPite for
Respondent.
The
following judgment was
delivered:
de
Comarmond, Ag. C.]. The
proceedings in this case were
initiated by the Chairman of the
Lagos Executive Development
Board in order to ascertain the
ownership of a piece of land
compulsorily acquired by the
Board. The two claimants were S.
D. Oshodi and Momodu Aremu who
will be referred to as the first
and second claimant
respectively.
The
originating summons did not give
the description of the piece of
land, but it is obvious that the
claimants knew the identity
thereof.
The first
claimant's title, as set but
in his statement of
interest, is derived from the
Oloto family. He stated that he
had bought the land in December,
1940, at a public auction and
had obtained a certificate of
purchase signed by a Judge of
the Supreme Court. The land had
been put up for sale by virtue
of [pg 83]
a writ of fieri-f4cias
issued h suit 333 of 1931 in
which Fagbayi Oloto, Bakare
Oseru and six other persons were
defendants. Exhibit" 13 " is the
certificate of purchase,
Exhibit" A" is the notice
advertising the auction and
contains a description of the
land to be sold.
Fagbayi Oloto,
who was the first defendant in
suit No. :333 of 1931, gave
evidence in the present case
under the name of Tiyamiyu
Oduntan Fagbayi and made it
clear that the 1931 suit was
against him and other persons of
the Oloto family in respect of a
debt owed by a former Oloto. He
also stated that several pieces
of land, belonging to the Oloto
family, were sold in order to
satisfy the judgment debt,
including the land which is the
subject matter of the present
case.
Of course the
first claimant acquired only the
interest which the judgment
debtors had at the time of the
auction sale. Two points must,
therefore, be investigated in
order to ascertain what the
first claimant did acquire. The
first point is whether the
judgment debtors in suit 333 of
1931 were acting as
representatives of the Oloto
family. If they were, the second
point is whether in 1940, when
the first claimant acquired the
land, the Oloto family still
owned the land as absolute
owners, or had retained their
right only as overlords under
native Jaw and custom, after
having parted with the right of
possession or some lesser
interest.
As to the
first point, the evidence of
Fagbayi Oloto, referred to
above, shows that the defendants
in suit 3:13 of 1931 were
representing the Oloto family.
The second
point is more difficult. There
is no satisfactory evidence on
record as regards native law and
custom. The second claimant in
his statement of interest has
traced his title back to Bakare
Oseru, one of the defendants in
suit 333 of 1931 and a member of
the Oloto family. It is to be
noted, however, that the second
claimant in his statement of
interest did not attempt to go
further back than Bakare Oseru.
Two
possibilities must, therefore,
be envisaged. Bakare Oseru may
have sold the land in dispute
without the knowledge of the
Oloto family and without having
any individual right to the
land, or he may have been
granted certain rights in the
said land under native law and
custom. If the first alternative
is correct, the 2nd claimant
acquired no right at all through
Bakare Oseru. As regards the
second alternative, there is the
evidence of Olaboye Laleye to
the effect that he bought the
land in 1931 from l3akare Oseru,
and that before doing so he went
to see the Chief Oloto who told
him that the land had been given
to Bakare.
The present
Chief Fagbayi stated that he
knew nothing about this alleged
gift. Another witness was
Emanuel Fagbayi, a brother of
Bakare Oseru, who stated that he
drew up the receipt for the
money paid by Laleye to Bakare
Oseru and also that he was
present in 1928 when the then
Chief Oloto gave the land to
Bakare Oseru in the presence of
several persons.
The learned
trial Judge stated that he would
not accept Laleye's evidence
without corroboration, but he
did not pass any comment on
Emanuel Fagbayi's evidence as to
the alleged donation.
Counsel for
the second claimant (respondent)
has submitted that a Chief Oloto
can make a gift of family land
to a member of the family
without the concurrence of the
family and that if the donee
then alienates the land to a
stranger such alienation would
be voidable at the instance of
the family, but not void ab
initio. Counsel relied on
the case of Kwansi Manko and
ors. v. Bonso and ors.
(1). In that case the head
of the family had conveyed part
of the family land without the
concurrence of the family and
the Court held that the sale was
voidable but not void, and the
Court made it clear that the
subsequent acquiescence of the
family could not be presumed
unless it was clearly
established that they must have
had knowledge of the
circumstances. In the present
case [pg
84] neither the second
claimant nor any of his
predecessors occc.pied the land.
Moreover, there are important
differences between the case
relied upon by respondent's
Counsel and the present case.
The first point of difference-Is
that Laleye did not purchase
from the Chief Oloto, but from a
member of the family. The second
point of difference is that in
the present case there is no
certainty as to what interest,
if any, in the land was given to
Bakare Oseru by Chief Oloto. At
any rate, it was for the second
claimant to establish that
native law and custom in Lagos
recognises gifts of land to
individual members of the Oloto
family by the Chief, without the
concurrence of the family. There
is no such evidence and Counsel
could not refer us to any
case-law recognising any such
custom.
