Lawal Adisa Yusuf Shitta-bey V. Chairman, Lagos Executive Devt. Board (1962)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, F.J

The contest between the appellants (hereafter called the second Claimants) and the second respondents (hereafter called the first Claimants) relates to the compensation payable for No. 41/43 Martins Street, Lagos, which was acquired by the Chairman, Lagos Executive Development Board. The second Claim-ants claim that the descendants of Yousuffo Shitta-Bey are entitled to half the amount, the first Claimants that it belongs in whole to the children of Mohammed Shitta-Bey. The latter pleaded in the compensation proceedings (now on appeal) that it had been so held in the judgment of the High Court in Suit No. 382 of 1954, on which they relied as estoppel against the other side. The proceedings in that suit were estoppel against the other side. The proceedings in that suit were put in, and after argument Bennet, J., decided in favour of the first Claimants; whence this appeal by the second Claimants.

The premises in question were declared a trust by Mohammed Shitta–Bey (who died in 1895) in his will, which named his brother Yousuffo and his two sisters as executors and trustees. The will also appointed Yousuffo as Head of the House. He was the head until his death in 1908, and after him various persons held the headship until 1948, when Rufai died, and then Sulu Shitta was appointed. Lawal, a son of Yousuffo, was away for years; when he came back in 1953, he claimed that he was the person entitled to be the head, and brought Suit No. 382 of 1954 against Sulu Shitta, a son of Mohammed, the testator.

As regards the trustees: Yousuffo died in 1908, and one of the sisters be-fore 1911; in that year the Court added Sanni Shitta and Albert Shitta as co–trustees of the surviving sister. According to the Defence in Suit 382 of 1954, Sanni became head when Yousuffo died, and was succeeded by Rufai as head, but the Defence did not allege that Rufai ever became a trustee. Again, according to that Defence, Sulu Shitta succeeded Rufai, who died in 1948, as head and was turbanned as Seriki Musulumi in March, 1950, but he was appointed with Abudu Ramonu Shitta as trustee on the 20th June, 1950. These facts from that defence are mentioned for the sake of making it clear that a person might be head of the family without being a trustee, and that a trustee was not necessarily head of the family.

In the earlier suit Lawal was claiming a declaration that he was the one entitled as against the defendant to act as head of the family and reside in the portion of the house used by the head. He sued ‘Sulu Shitta’ simpliciter as the defendant; he did not sue him as trustee; neither did he sue him as repre-senting the children of Mohammed Shitta-Bey. On the other hand, Sulu Shitta put up a triple shield in his defence–

(1)that he had been appointed as the head by those entitled to appoint the head;

(2)that he was a trustee under the will; and

(3)that the trust created by the will concerning the house and compound was in favour of the children of the testator, including the defendant, to the exclusion of the children of Yousuffo Shitta.

Both sides were invoking the will. They agreed on the dispute being decided by Mr. L. B. Agusto, as arbitrator, and he decided that the defendant, Sulu Shitta, was entitled to reside in the portion used by the head of the family–

(1) because he was the trustee in whom the legal estate was vested;

(2) because he was one of the testator’s children in whose favour the trust was created; and

(3) because he was the head of the testator’s family both by age and appointment, and also the SerikiMusulumi of the Muslims of the Central Mosque, Victoria Street, Lagos.

In the arbitrator’s view, the plaintiff’s claims were not supported by the will, on which he founded them, and his action was dismissed.

There were arguments before Bennet, J., on the two points involved-