Adeyinka Oyekan & Ors V. Musendiku Adele (1952)
LawGlobal Hub Judgment Report – West African Court of Appeal
Crown Lands (Township of Lagos) Ordinance (Cap. 44), section 3—Treaty of Cession of Lagos, 1861—Effect of Crown Grants—“Royal Estates ” or “Stool Land.”
By the Treaty of 1861 King Docemo transferred to Her Majesty Queeh Victoria ” the port and island of Lagos with all the rights, profits territories and appurtenances whatsoever thereunto belonging and as well the profits and revenue as the direct full and absolute dominion and sovereignty of the said port, island and premises with all the royalties thereof”.
In 1870 a Crown Grant was made to King Docemo and his heirs, executors, administrators and assigns for ever, of certain premises in Lagos known as the
The appellants sued the respondent for a declaration of title, possession and damages for trespass, averring that the premises were the property of the descendants of King Docemo of Lagos of whose family they were members and relying on the said Treaty and Crown Grant.
The respondent, who was the duly recognised Oba of Lagos, contended that the premises were not absolute property of the plaintiffs or King Docemo’s descendants but the traditional residence of the Oba of Lagos and that he had a right to occupy them as the Oba.
The trial Judge held on the evidence that the premises were the traditional residence of the Obas or Kings of Lagos and that the Crown Grant of 1870 was not to be construed as an absolute grant to King Docemo and his heirs but in trust to the use of the Obas of Lagos. He dismissed the action, and the plaintiffs appealed.
Briefly, the history of the premises was as follows: Someone made a gift of land to King Ado, the Oba of Lagos, about the middle of the seventeenth century and before the century was out buildings were erected on it and have been occupied since then by the Oba of the day as his residence. (For a brief period, 1931-2, one Eleko Eshugbayi, after his exile, though not recognised, was allowed by Government to occupy the premises; but this the Court thought did not affect their character as the Oba’s residence.)
All Obas to this day have been descendants of King Ado. Those after King Docemo have been descendants of his, except for Sanusi Olusi, the Oba of 1938 (to 1931?), and the respondent, who are descendants of King Ado but not of King Docemo. The recognition of the respondent in 1949 gave rise to this action about the premises on the part of plaintiffs as members of the House of Docemo relying on the cession of Lagos to the Queen in the Treaty of 1861 and the Crown Grant of 1870 of the premises to King Docemo and his heirs.
The question whether the trial Judge was right in holding that the Crown Grant of 1870 gave the land to King Docemo as Trustee for his successors in the office of Oba of Lagos turned on the nature of the tenure and on the meaning and effect of the words in the Treaty cited above and of the Crown Grants (Township of Lagos) Ordinance (Cap. 44), in particular of the words in section 3 thereof that—
“each of such grants shall be deemed to have vested in the grantee an estate free from competing interests and restrictions save only such interests and restrictions recognised by native law and custom as at the date of the grant affected such estate ”.
(1) The user of the land during the past three centuries left no doubt that it fell within that class of estate described as “stool land” or “royal estate ”, that is to say the land vested in the ruler not beneficially or as absolute owner but in him in his office, viz. in his representative or constitutional capacity as distinguished from land which he and his own family held individually.
(2) Under the Treaty of 1861 there was a cession to the British Crown of the radical title to the land in Lagos but this cession was made on the footing that the rights of property of the inhabitants were to be fully respected. Where the cession passed any proprietary rights they were rights which King Docemo possessed beneficially and free from the usufructuary qualification of his title in favour of his subjects. This position was confirmed by the Crown Grants (Township of Lagos) Ordinance (Cap. 44).
(3) The Oba did not hold the premises in question beneficially, therefore they did not pass to the Crown under the Treaty of 1861; consequently the Crown Grant of 1870 vested in King Docemo and his heirs an estate subject to the interest and restriction imposed thereon by the native law and custom relating to a royal estate, that is to say subject to the right of the Oba of Lagos during his term of office to hold the premises as his official residence in a constitutional capacity as representing in effect the aggregate of his subjects.