Giwa Vs Bisiriyu O Erinmilokun (1961)
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The action, the subject matter of this appeal, was originally instituted by Liadi Giwa, Chief Aromire, for himself and on behalf of all other members of the Aromire Chieftaincy Family, claiming a declaration of title under Native Law and Custom to the property known as 20 Massey Street, Lagos, and an order for possession against the defendant/respondent.
Liadi Giwa died before the hearing of the appeal, and on the 17th day of May, 1961, an order was made by this Court, on an application filed on behalf of one Yesufu Abiodun, Chief Oniru, substituting the applicant for Liadi Giwa, and in the same capacity in which Liadi Giwa was suing. Leave was also granted the applicant to file and argue the amended grounds of appeal.
The original grounds of appeal filed with the notice of appeal were abandoned, as were the first and second grounds of the amended grounds of appeal. The general ground of appeal, which was the fifth ground, was argued only in so far as the facts related to the fourth ground of appeal, and it will be so dealt with, if need be.
The third ground of the grounds of appeal argued at the hearing reads as follows:-
The Learned Trial judge misdirected himself in law and in fact in holding that ‘if the land in question was in truth given by the Aromire Chieftaincy Family through the Oba to Saba, it has not been proved that under Native Law and Custom they have a reversionary interest’ when it has been held mom often in all the Courts that ‘lands were not in former times given away absolutely even to war chiefs.’
The appellant family aver, in their pleadings, that the land originally belonged to the Aromire Chieftaincy Family; that that family many years ago allotted the land to one Saba, for use and occupation under Native Law and Custom; and that as a result of the adverse dealings with the land culminating in the purchase of the property by the respondent, of the latter of which the appellant family were aware, the property reverts to the appellant family. By virtue of this, possession is claimed against the respondent. The respondent on the other hand denies the allegation of ownership by the Aromire Chieftaincy Family and of a grant by such family to Saba. He pleads title in fee simple as derived from a Crown Grant of the 11th November, 1870, made to Saba, and subsequent title deeds witnessing the subsequent transactions over the land.
The learned Trial judge has found, and it is not contested, that the Aromire Chieftaincy Family at one time were the owners of the land in dispute ; further that it was granted to Saba through Dosumu. The substantial issue before us, at least as far as the first part of the claim on the summons is concerned, is-whether the grant to Saba was an absolute grant or one that carried with it a reversion in the grantor. That was the issue before the Trial Court, for it was conceded during the hearing that Chief Saba received a grant from the Aromire Family through Dosumu. The onus was therefore on the present appellant family, who assert that the grant carried with it a right of reversion, to prove it.
It must be conceded that it has been frequently held that land was not originally given away absolutely, but apart from the decision to which our attention was drawn on this point, i.e., the case of Eshughayi Oloto v. Dawuda and ors., 1.N.L.R. 57, I am not aware of any other decision which goes as far as the ground of appeal under consideration claims. Learned Counsel for the appellant family referred us to the cases of Oshodi v. Dakolo and ors., 9 N.L.R. 13, and Onisemo v. Faghemo, 21 N.L.R. 3, but with respect, they do not go as far as is urged on this ground of appeal.
It is a well established principle of law that native law and custom is a matter of evidence to be decided on the facts presented before the Court in each particular case, unless it is of such notoriety and has been so frequently followed by the Courts that judicial notice would be taken of it without evidence required in proof.
The facts of the case of Eshugbayi Oloto v. Dawuda and others, are wholly different from the facts of the case on appeal before us. In this respect I shall quote the following passages in the Judgment of the Court delivered by Smith, J., at page 58, which read as follows :-
At the commencement of the case, the appellants stated that they claimed under Chief Mom Asosi, who had obtained permission to farm and settle on the land in question from Belo Oloto, the predecessor in title of the present plaintiff.
A little later on, at page 59, the Learned judge goes on to say that :
The admission first made by the appellants that they claimed the land under Momo Asosi who got permission to farm and settle on the land from Belo Oloto, is not inconsistent with the plaintiff’s ownership ; at a later stage however the appellants assert that the plaintiff had nothing at do with the land as it was an absolute grant to their predecessor in title. They contend that Momo Asosi was a war chief, and for services rendered the land was given to him absolutely, and in view of that gift he paid no rent. There is no evidence on the part of the appellants to support this contention. It rests on the statement of counsel founded no doubt in part on the admission of plaintiff that Momo Asosi was a war chief.
The Oloto Family in that case led evidence that war chiefs like Momo Asosi received grants of lands at Ebute Metta to act as a barrier to prevent the Egbas from raiding on the land. Further, evidence was led by the Oloto family in that case that the war chiefs paid rent to the Oloto—a position which is vastly different from the present appeal, which concerns land not at Ebute Metta but in Lagos, and in which there is no evidence on record that any rent was ever paid to the Aromire Family.
In the case of Nosiru Jegede and others v. Eyinogun and 2 others, 4 F.S.C. 270, Mbanefo, FJ., as he then was, said of the above case at page 272 that:-
In Olofo v. Dawuda (2), also relied upon by Mr Dosunmu, it is stated that by the native custom of Lagos, lands were not in former times given away absolutely, even to war chiefs, and that it must require very strong evidence to warrant the Court to come to a conclusion contrary to this custom. This statement was based on expert evidence given in that case. If that statement is meant to lay down the rule that native land cannot under any circumstances be transferred absolutely, it needs some qualification.
In the appeal before us there was evidence on either side in support of their respective version of Native Law and Custom on this particular point in issue. In the absence of any reported case on all fours with the present, of which the Trial judge was bound to take notice, as having established the position of war chiefs as regards grants by land-owning Chiefs, lie was in my view perfectly justified, to saying as he did that the appellant family had not discharged the onus placed on them. This ground of appeal must therefore fail.
The only other point raised by Learned Counsel in grounds four and five deal with the issues of acquiescence. This would only arise if the appellant family had succeeded on the fast ground. Since they have not, and the result is that they have no right of reversion to the land in dispute, the question of whether they had acquiesced in the respondent’s and his predecessors-in-title’s adverse possession does not now arise, and no useful purpose would be served by my dealing with the point.
I would therefore dismiss the appeal with costs assessed in favour of the respondent in the sum of 21 guineas.
Other Citation: (1961) LCN/0912(SC)