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LAWANI BRIMAH ONISIWO AND OTHERS
V.
TAIWO GBAMGBOYE AND OTHERS
WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
8TH DAY OF MAY, 1941
2PLR/1941/44 (WACA)
OTHER CITATION(S)
2PLR/1941/44 (WACA)
(1941) VII WACA PP. 69 – 70
LEX (1941) – VII WACA PP. 69 – 70
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN:
LAWANI BRIMAH ONISIWO AND OTHERS – Plaintiff-Respondents
AND
TAIWO GBAMGBOYE AND OTHERS – Defendants-Appellants
REPRESENTATION
A. Alakija with A. O. Abayomi — for Respondents
E. J. Alex Taylor with A. Johnson — for Appellants
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Alienation of family property by domestic of family without consent of the Overlord family — Possessory rights of domestic(s) — When would be deemed forfeited thereby — Misbehaviour justifying forfeiture? — What constitutes — How determined
REAL ESTATE AND PROPERTY LAW — LAND:- Alienation of family land by person not entitled to no more than possessory licence — Nature of alienation which would entitle overlord to an order of forfeiture
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held: Appeal dismissed.
1. 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.
2. It is not in every case that the granting of a leasehold amounts to alienation and so connotes misbehaviour and involves forfeiture. 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 of the overlord’s rights.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND GRAJAM 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 holding that the conduct of the defendants in executing a lease of 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 of the overlord’s rights. This is commonly shown by some form of alienation and such alienation may take the form, as in the case of leasing under claim of ownership. But it is not difficult 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.
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