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AKANBI DOSUNMU
V.
TIJANI AMUSA DOSUNMU
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
25TH DAY OF MAY, 1954
2PLR/1952/46 (WACA)
OTHER CITATION(S)
2PLR/1952/46 (WACA)
(1954) XIV WACA PP. 527-528
LEX (1954) – XIV WACA 527-528
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
ABBOTT, J.
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BETWEEN:
AKANBI DOSUNMU – Appellant
AND
TIJANI AMUSA DOSUNMU – Respondent
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ORIGINATING COURT(S)
Appeal by defendant against the judgment of the Lagos Supreme Court: No. 186/1953
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REPRESENTATION
Lapido Moore, with H. O. Davies — for the Appellant
C. O. Ogunbanjo — for the Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Native Law and Custom – Property allotted to wife – Custom that property could be allotted and descend through a wife – Whether needs to be proved
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CASE SUMMARY
The plaintiff (now respondent) claimed the rents of some rooms as his alleging that they had been allotted to a wife in accordance with native law and custom, and descended through her; he obtained judgment; and the defendant appealed contending that such law and custom, which meant that property could be allotted and descend not through a child but through a wife, had not been proved.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
1. If it existed, it would mean that on the death of a childless wife, not of the same family as her husband, property vested in her would pass away from the husband’s family, from whom the wife became entitled to it, to the wife’s family.
2. Such a method of devolution had never been accepted by the Courts as part of customary law.
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MAIN JUDGMENT
The following Judgment was delivered:
ABBOTT, J.
This is an appeal by Akanbi Dosunmu against the judgment of the Lagos Supreme Court whereby it was ordered (1) that the appellant should file an account of rents received by him from four rooms at No. 2 Dosunmu Court, Lagos, and pay over to the respondent the amount found due to him on such account and (2) that the appellant should be restrained from further collecting rents from the four rooms.
The facts of the case are sufficiently set out in the judgment of the Court below, and it is unnecessary to repeat them here.
Mr. Moore, for the appellant, dealt first with grounds (1)(a), (b), (d), (e), and (2) of the grounds of appeal and later in his argument with ground (3). It is with this latter ground, which I regard as the most important, that I propose to deal first.
This ground reads as follows:-
“The learned trial Judge erred in law by failing to give effect to Native Law and Custom relating to devolution of property as proved and as already established in this Honourable Court.”
Mr. Moore first directed the attention of the Court to paragraphs 6, 7 and 1 of the statement of claim. Of these paragraph 6 is the most material and it reads as follows:-
“The plaintiff says that Nos. 2 and 2A are one and the same house and was allotted to Tonoba a domestic and wife of Dosunmu Ajiwe in accordance with Native Law and Custom.”
Native Law and Custom is thus said to be, in effect, the respondent’s root of title. Mr. Moore contends that the respondent did not, in the Court below, prove the existence of any such Native Law and Custom.
The only case in which proof of such a root of title is unnecessary is when that root of title (in this instance, the particular Native Law and Custom whose existence is averred) has been already accepted by the Courts.
Respondent’s counsel relies, on this important point, on exhibit A, which is the record of Suit 161/47, and contends that this amounts to an acceptance by the Courts of the root of title he now seeks to set up.
I do not find it possible to agree with this contention. The Native Law and Custom alleged here is, briefly, that property can be allotted and descend not through a child but through a wife. If such Native Law and Custom existed, it would mean that, on the death of a childless wife, not of the same family as her husband, property vested in her would pass away from the husband’s family, from whom the wife became entitled to it, to the wife’s family. I can find nothing either in exhibit A or anywhere else to show that such a method of devolution has ever been accepted by the Courts.
It cannot be suggested that there is any evidence affording proof of the Native Law and Custom averred in paragraph 6 of the statement of claim.
Moreover, so far as concerns the first set of grounds of appeal argued by Mr. Moore, it is clear from his judgment that the learned trial Judge placed a great deal of weight on the evidence of Hector Oshodi Glover (a witness for the respondent). I entirely agree that this witness was one whose evidence should receive much more attention and weight than the evidence of some of the other witnesses, but, in my view, his answers at the beginning of his cross-examination by appellant’s counsel not only destroy what support his evidence-in-chief may have given to the respondent, but also lend active support to the case for the appellant. Here are those answers: “Efforts were made to settle this case out of Court. We all met at Oshodi Palace to settle the matter. We went to identify the rooms. Four rooms belong to Dosunmu Chieftaincy Palace. They are at the back of the front house, general family property.” That evidence, in my view, very materially damages the respondent’s case.
On all grounds, therefore, I would allow this appeal, reverse the judgment of the Court below, and enter judgment for the appellant who must have the costs of this appeal, assessed at £39 1s. 0d. and £36 15s. 0d. for costs in the Court below.
At the trial some question was raised as to whether the respondent was a member of the Dosunmu Family. I think it quite clearly established that this question is resolved in favour of the respondent.
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FOSTER-SUTTON, P.
I concur.
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COUSSEY, J. A.
I concur.
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Appeal allowed.
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