Chief Taiwo V Dosunmu And Anor (1965)

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BRETT J.S.C. 

The appellant is a principal member of the Dosunmu family of Lagos. The first respondent is the head of the family and the second respondent is another of the principal members. The appellant brought an action against the two respondents jointly and severally, in which he asked for:-

1. a full and true account of all moneys and profits that have passed through their hands as a result of the control and management of Dosunmu family property in Lagos;

2. Payment over to the plaintiff of what is found due to him on the taking of such account;

3.  Costs;

4. All further accounts, enquiries and directions.

Pleadings were ordered and in his Statement of Claim the appellant gave particulars of the landed properties belonging to the family and of those for which he said the respondents had collected rents of which he had not received his share; he also alleged certain acts of mismanagement on the part of the first respondent. The first respondent denied most of the allegations other than the purely formal ones and concluded his Defence with the following paragraph:-

“10. The said defendant will contend that he is not accountable to the plaintiff and that the claims be dismissed with costs.” The second respondent denied the allegation that he had been concerned in the collection of rents for family properties.

When the case was ready for trial the trial judge, Coker, J., had it set down for argument on the preliminary point of whether the head of a family is liable to account. The point was argued without objection by either side and neither side applied to call evidence either as to the facts of the case or as to the relevant rules of customary law, but various reported judgments were cited on each side. The judge gave a reserved ruling in which he upheld the fast respondent’s submission that inasmuch as he was the head of the family the action could not be maintained against him, he therefore dismissed the action against the first respondent with costs. The appellant gave notice of appeal against this judgment and brought a motion asking that the action against the second respondent be stayed until the appeal involving the first respondent was disposed of. This motion was refused and when counsel for the appellant indicated that he was not prepared to go on with his case the action was dismissed against the second respondent. The appellant brought an appeal against this judgment too, and the appeals have been heard jointly, though, as the reasons for the judgment were different in each case, so the grounds of appeal are different.

The point for our decision on the appeal relating to the first respondent is not whether the head of a family is liable to be sued for an account but whether the learned trial judge was justified in ruling, on the material before him on the preliminary issue, that he was not so liable.

Section 27 of the High Court of Lagos Act enjoins the court to observe and enforce the observance of every customary law in cases where it is applicable, and the ascertainment of that law is dealt with in section 14 of the Evidence Act, which reads as follows:-

“14. (1) A custom may be adopted as part of the law governing a particular set of circumstances if it can be noticed judicially or can be proved to exist by evidence. The burden of proving a custom shall lie on the person alleging its existence.

(2) A custom may be judicially noticed by the court if it has been acted upon by a court of co-ordinate or superior jurisdiction in the same area to an extent which justifies the court asked to apply it in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration.

(3) Where a custom cannot be established as one judicially noticed it may be established and adopted as part of the law governing particular circumstances by calling evidence to show that persons or the class of persons concerned in the particular area regard the alleged custom as binding on them: Provided that in case of any custom relied upon in any judicial proceeding it shall not be enforced as law if it is contrary to public policy and is not in accordance with natural justice, equity and good conscience.”