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HENRY I. OLOWU
V.
GERTRUDE DESALU
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
15TH DAY OF FEBRUARY, 1955
APPEAL NO. 179/1954
2PLR/1955/61 (WACA)
OTHER CITATION(S)
2PLR/1955/61 (WACA)
(1955) XIV WACA PP. 662-664
LEX (1955) – XIV WACA 662-664
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
DE COMARMOND, AG. C.J., NIGERIA
COUSSEY, J.A.
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BETWEEN:
HENRY I. OLOWU – Appellant
AND
GERTRUDE DESALU – Respondent
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ORIGINATING COURT(S)
Appeal by an applicant for registration from the decision of the Supreme Court on appeal from the Registrar
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REPRESENTATION
Akintoye — for the Appellant
Kayode — for the Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Native Law and Custom — Family Property — Mortgage of share without concurrence of members
DEBTOR AND CREDITOR:- Equity — Acquiescence — Offer to pay mortgage debt whether acquiescence in mortgage — Purchaser buying family property in spite of warning — Legal effect
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PRACTICE AND PROCEDURE ISSUE(S)
EVIDENCE:- Copy of notice objected to as evidence but admitted for identification — Service of original not proved — Legal effect
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CASE SUMMARY
The appellant bought at a sale, in spite of a warning notice by the respondent, an undivided share in family property which her brother had mortgaged; he applied to have his purchase registered, to which the respondent objected. At the hearing before the Registrar the appellant, who had not given notice to the respondent to produce the original, tendered a copy of what purported to be a notice to the respondent from the mortgagees informing her of her brother’s intention to mortgage his share; her counsel objected to the copy being admitted in evidence but said that he would not object to the copy being marked for identification; the Registrar admitted the copy in evidence, and decided that the respondent was estopped by that notice from alleging that the property was family property and that her brother had no right to mortgage an undivided share in what was family property. But there was no evidence of posting or delivery of the original, and the respondent denied receiving it.
On appeal to the Supreme Court the respondent won and the appellant appealed. The arguments turned on whether the respondent’s brother could have mortgaged an undivided share, and on whether the respondent was estopped from objecting on account of the alleged notice or of her having offered to pay her brother’s mortgage debt upon transfer of the mortgage to a nominee of hers— a proposal which failed as her brother would not agree to it.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
1. The property had devolved upon the respondent and her brother as family property under customary law upon the death of their mother, and the brother had no right to mortgage his share without her concurrence.
2. The respondent’s counsel had objected to the admission in evidence of a copy of an alleged notice to her; his not objecting to the copy being marked for identification implied that he would insist upon proof that the original had been delivered to her; but no such proof was given; and the respondent denied receiving the original; therefore the inference that she had received it could not have been drawn.
3. The respondent’s offer to pay the mortgage debt was equally consistent with a desire on her part to purchase peace without admitting or acquiescing in her brother’s act of mortgage.
4. The appellant was not led by the respondent’s conduct to alter his position, for he had read her warning notice prior to the sale.
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MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J. A.
There is no doubt whatever that, upon the death intestate of Regina Pratt, the mother of the objector-respondent and her brother George Egerton Shyngle, the property in question in this matter became family property in accordance with native customary law. The descendants of Regina Pratt thereupon became entitled to the property as co-owners holding in common an undivided interest in family property which could be-alienated only with the concurrence of the members of the family.
There is some evidence that, apart from the objector-respondent and George Egerton Shyngle, the children of Daniel Pratt, an elder son of Regina Pratt, also have interest in this family property but it is unnecessary to consider their rights in this judgment as it is clear that George Egerton Shyngle had not a half undivided share in the property that was capable of, and which he purported to mortgage to the Lagos Building Society. The notion of the mortgagees that George Egerton Shyngle held a half undivided share as a tenant in common is due to a misconception of the incidents of family property. I am therefore of opinion, with respect to the learned Judge on appeal, that he correctly held on the cases referred to in his judgment that in a tenure of family property such as this is, an individual member has no right to alienate his interest without the consent of the family.
But the applicant-appellant, who claims to have purchased the interest of the mortgagor George Egerton Shyngle at a sale under the mortgagee’s power of sale contends, and in this he was supported by the Registrar’s decision, that the objector-respondent is estopped from now alleging that the property is family property and that George Egerton Shyngle had no right to mortgage an undivided half share thereof because the mortgagees’ solicitor, before the execution of the mortgage, gave her notice by letter of the intention of George Egerton Shyngle to mortgage that interest for a loan of £500. It is argued that her failure to answer that letter or to state in reply that the property was family property held under native customary tenure amounts to acquiescence on the part of the objector-respondent and that by reason of that acquiescence the mortgagees were led to alter their position by taking the mortgage, an estoppel which it is contended operates in favour of the applicant-appellant as a privy in respect of the mortgagees’ rights in the mortgage.
It might have become necessary to consider this submission and to decide whether, in this case, a dealing in family property without the concurrence necessary by native customary law is void ab initio or only voidable within a reasonable time, but it is apparent from the record that it remained unproved throughout the proceedings that the notice of the 15th January, 1947, exhibit “J”, upon which the submission is founded, was in fact delivered to the objector-respondent so that estoppel could operate.
A copy of what purports to be the notice was produced. Its admission in evidence was objected to. No notice to produce the original had been given. Counsel for the objector-respondent observed, in effect, that he would not object to the copy notice being marked for identification, implying that he would insist upon proof that the original notice was delivered to the objector-respondent. At that stage however the Presiding Registrar admitted the copy notice in evidence as exhibit “J”. The rule on this question is that if a letter, properly addressed, is proved to have been put in the post office and is not returned as undelivered it is presumed from the accepted systematic operation of the postal service that the letter was duly delivered to the addressee. In this case there was no evidence as to the posting or delivery of the original letter or of the address which it bore. The objector-respondent denied having received the letter. There was therefore no evidence from which the Registrar could draw an inference that the original letter or notice was delivered.
It has further been argued that the objector-respondent, by her solicitor’s letter, exhibit “K”, written to the mortgagees, acquiesced in the mortgage as she therein requested the mortgagees to arrange for the transfer of the mortgage to a person named by herself, adding that as soon as the management was completed she would pay the amount due on the mortgage. The learned Judge on appeal held that this amounted to nothing more than an offer to adopt the mortgage, an offer which did not materialise as the mortgagor would not consent to the transfer. A submission of this nature must be examined with great care in order to determine the nature of the admission. I can find nothing in the letter or in the conduct of the opposer-respondent which amounts to an express renunciation of her claim that the property is family property nor an admission that her brother, the mortgagor, had the one-half undivided share in the property as a tenant in common which he purported to mortgage. The offer appears equally consistent with a desire on her part to purchase peace without admitting or acquiescing in the mortgagor’s act.
It is clear further, that the applicant-appellant was not led by the conduct of the opposer-respondent to alter his position, for he read her warning notice prior to the sale in which she proclaimed that the property was joint property, which could only mean family property, and that the property would be bought at the purchaser’s risk.
For these reasons I would dismiss the appeal with costs for the opposer-respondent.
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FOSTER-SUTTON, P.
I concur.
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DE COMARMOND, Ag. C.J.
I concur.
Appeal dismissed.