Dabiri And Ors. Vs Chief A. B. Gbajumo (1961)

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TAYLOR, F.J

The defendants/appellants have appealed to this Court, being dissatisfied with the Judgment of Coker, J. of the High Court of Lagos, delivered on the 25th May, 1959, which said judgment declared the plaintiff/respondent chieftaincy family the owner in fee simple of the area in dispute. The appellants were ordered to give up possession of the said premises on or before the 30th June, 1959.

At the hearing of the appeal, Chief Williams abandoned the original grounds of appeal and argued the five additional grounds of appeal under the following three heads:

1. That in view of the claim and the evidence before the Court the trial Judge should have granted the respondent family a declaration of title under Native Law and Custom and not in fee simple.

Chief Williams conceded that this Court was empowered to make the necessary amendment on appeal and made it quite clear that he was in no way attacking the findings of the Trial Judge on the issue of title.

2. That the Trial Judge erred in law in making the order for forfeiture when there was no such claim in the writ or Statement of Claim.

3. That even if it could be said that there was such a claim, the order for possession should not have been made as the conduct complained of was not of a sufficiently serious nature as to warrant an order for forfeiture under Native Law and Custom.

As to the first point, little more need be said than that the contention of Chief Williams is sound and in view of the powers of this Court to make an order or give a judgment which the Lower Court should have given, I would amend the judgment by granting the respondent family a declaration of title to the area in dispute under Native Law and Custom.

The second point necessitates a scrutiny of the pleadings in this appeal to see what the real issues were between the parties. Mr Agusto (junior) argued for the respondent family that the Statement of Claim sufficiently discloses that the action was one, inter alia for a forfeiture under Native Law and Custom, and I am inclined to agree with him. It is true that if the writ were to stand alone, the claim being one for title and possession, a possible construction could be that the claim for possession was a claim made against trespassers and not one against tenants under native law and custom who had forfeited their rights. The claim as it stood on the writ was, however, amplified in the Statement of Claim and in this respect I refer to paragraphs 7, 8, 9 and 12 of same. I quote paragraphs 7, 9, and 12 as follows:-

7. The defendants and their ancestor one Dabiri have been allowed by the plaintiff the use and occupation only under Yoruba Native Law and Custom of portion of the rear of 136 Great Bridge Street, Lagos, which adjoins the rear of 20 Bridge Street, Lagos, as shown in the plan to be filed later.

9. The defendants in pursuance of the said judgment have partitioned the portion referred to in paragraph 7 above as forming part of 20 Bridge Street, Lagos, contrary to the terms and conditions under which they were permitted to use and occupy same.

12. The defendants deny plaintiffs’s title to the portion in question and such denial is against Yoruba Native Law and Custom and a gross violation of it. In the foregoing circumstances the plaintiff claims as per writ of summons.

There can be no doubt at all from the pleadings and particularly from the four paragraphs mentioned above that what the respondent family is in effect saying is this – “The Eletu Washe family is the owner of this area in dispute by native law and custom. You are our tenants under such law and custom. Under such law and custom you are not to deny our title nor are you to partition the property as you did, therefore we are entitled to possession.”

These are the material facts which are required to be pleaded. In addition to these paragraphs is the fact that the case was conducted in the lower Court on the basis that the plaintiff family were claiming that they were entitled to possession of the premises by reason only of the respondents’ breach of the terms of their tenancy under Native Law and Custom, and that under such custom such breach entitled the family to come to Court for possession of the property. In his address, learned counsel for the respondent family is recorded as saying that:-