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.”
Section 2 of the Evidence Act defines a custom as “a rule which, in a particular district has, from long usage, obtained the force of law”, and we do not think there is any significance in the fact that section 2 refers to a “district” and section 14 to an “area”.
We have already said that no evidence was called on the preliminary issue, and that the parties relied on various reported judgments. The trial judge considered those judgments in his ruling, and we shall proceed to examine them and see whether the conditions of section 14(2) of the Evidence Act were satisfied. Four of them are decisions of the West African Court of Appeal, and we point out at once that all four are concerned with the law of some area of Ghana. In Nelson v. Nelson (1932) 1 WA.C.A. 215 the defendant’s father on his death bed had asked him to look after the interests of his brothers and sisters in the property left by the father, and it was held that he was in “a fiduciary position as a caretaker” for them. His position was distinguished from that of the head of a family and a passage from Sarbah’s Fanti Customary Law was cited as authority for the view that “no junior member can claim an account from the head of a family”, but the reference to the position of the head of a family was clearly made as an obiter dictum, and it cannot be said that the Court acted upon any custom affecting his position.
In Solomon v. Botchway (1943) 9 W.A.C.A. 127, the principal question was whether “children of a six-cloth marriage under the Ga customs of Accra have any interest in their father’s estate or not”, and the only importance of the case is that the West African Court of Appeal disapproved of an obiter dictum of the court below, to the effect that a custom relieving the head of a family from liability to account would be contrary to equity and natural justice. A submission to that effect was made in the High Court in the present case, but although Mr. Lardner referred to the hardship which the suggested rule might cause he did not repeat this particular submission before us. The decision in Solomon v. Botchway is not otherwise of value.
In Abude v. Onano (1946) 12 WA.C.A. 102 the point at issue was the liability of members of a Divisional Council, a body set up for local government purposes, to account to certain dissatisfied rate-payers for “Stool funds” or “Council funds”. In the judgment of the West African Court of Appeal it was said to be “an accepted principle of customary law that neither a chief nor the head of a family can be sued for account either of state or family funds”, but the reference to the head of a family was unnecessary for the decision. Finally, in Fynn v. Gardiner (1953) 14 W.A.C.A. 260, a case concerning property at Cape Coast, the West African Court of Appeal held that it was “a well-settled principle of native law and custom that junior members of a family cannot call upon the head of the family for an account.” Sarbah’s Fanti Customary Law was not expressly cited as authority for this statement, but had been referred to earlier in the judgment.
We have perhaps gone more fully into these judgments than is strictly necessary, because although we are content to assume that. it might be judicially noticed in Ghana that in certain areas, at least, of that country the junior members of a family cannot call on the head of the family for an account, we do not consider that that in itself means that the existence of such a custom in Lagos can be judicially noticed by the High Court of Lagos.
Even if a court of Ghana, and in that term we include the West African Court of Appeal sitting on an appeal from Ghana, is to be regarded as a court “of co-ordinate or superior jurisdiction” for the purposes of section 14(2) of the Nigerian Evidence Act-and on this point we have heard no argument- we cannot regard it as a court “in the same area” as the High Court of Lagos for the purposes of that subsection.
Mr. Makanju, who appeared for the first respondent, invited us to treat the rule as a part of “African customary law”, but although the passages we have cited refer to “customary law” and “native law and custom” without qualification we take it as clear that a custom can only be “acted upon” within the meaning of section 14(2) of the Evidence Act for the purpose of deciding a particular case and as a custom binding on the parties to that case and in the area concerned.
We are aware that scholars have been inquiring into the existence of anything that can be collectively called “African customary law” but whatever similarities may have been found between the customs of one area and another the courts can only proceed step by step and consider every alleged custom as occasion arises.
We are of the view that in applying section 14(2) of the Evidence Act the courts must treat the reference to “the same area” as meaning an area in which some grounds appear for supposing the customs to be uniform. On the material before us no grounds are disclosed for supposing that the customs of the Fanti or Ga. of Ghana are the same as those of the Yoruba of Lagos in this matter. We are not saying that in ascertaining the customs of a particular area the decisions which establish the customs of neighbouring areas may not be helpful, but they cannot be conclusive.
Coming to Nigerian decisions, i
Other Citation: (1965) LCN/1192(SC)
