Lawani Brimah Onisiwo & Ors V. Taiwo Gbamgboye & Ors (1941)
LawGlobal Hub Judgment Report – West African Court of Appeal
Family property—Thirty years’ lease without consent of Overlord Supreme family—Rightsforfeited . thereby—Whatconstitutes Court.misbehaviour involving forfeiture?–Must be challenge to Overlord’s rights:71’…mFase to be considered on its own facts.
There is no need to set out the facts.
A. Alakija (A. 0. Abayomi with him) for Respondents. E. I. Alex Taylor (A. Johnson with him) for Appellants. The following joint jument was delivered :—
KINGDON, 0.3., NIGERIA, PETRIDES, C.J., GOLD COAST, AND GRAHAM PAUL, C.J., SIERRA. LEONE.
It is no longer in dispute that
- The defendants-appellants are descendants of Gbamgboye a domestic of one of plaintiffweepondentai ancestors.
- Gbamgboye was given permission to occupy a portion of family land in accordance with Native Law and Custom.
- The defendants-appellants have leased the property in dispute to Paul Jazzar for a term of thirty years without the consent of the plaintiffs-respondents.
When the plaintiffs-respondents claimed a declaration that the defendants-appellants had forfeited. their customary rights of occupation and interest in the property as descendants of domestics of plaintiffs-respondents’ ancestor the defendants-appellants contested the claim. They filed a defence in which they alleged that their ancestor Gbamgboye was the owner in fee simple of the property and he and the family had been in possession for upwards of ninety years and the plaintiffs-respondents never had any right, title or interest in the property. In this defence they pleaded the Real Property Limitation Act 1874 also Lachea, Acquiescence, Long Possession and Stale Claim.
The defence of title appears to have been abandoned by the defendants-appellants in the Court below and was certainly not relied on in this Court. After reviewing a number of authorities the learned trial Judge came to the following conclusion :-
” In the present case on the authorities I have no difficulty in ” holding that the conduct of the defendants in executing a lease of
” family property for thirty years to a stranger without the consent of
” the family amounts to such misbehaviour as to involve them in the
forfeiture of their rights and the plaintiffs are entitled to the declare” Lion sought for.”
We entirely concur with that conclusion. It is. obvious that the leasing of the property by the defendants-appellants to a stranger for a long term of years un ler a claim of ownership constituted a direct challenge to the plaintiffs-respondents’ rights and amounted to misbehaviour entailing forfeiture. But in thus upholding the judgment of the Court below, we wish to avoid being thought to subscribe to the proposition that in ever_y case, the granting of a leasehold amounts to alienation and– ao connotes misbehaviour and involves forfeiture. That in our view is a most dangerous proposition and would carry the Native Law and Custom far further than it has been established by cases decided in the Courts. The real question is not how the word ” alienation ” as used in any judgment is to be interpreted, but. what exactly is the Native Law and Custom which applies. The_real foundation of the whicb ‘involves forfeiftire is the challensre t6 –t re—overlord’s riditc This is commonly shown some form of aiiJiation and goell Oienatioa, may take the fOrit,
thi= ease. of leasiner nuder claim of. nwu.erithip. But it is not difficult to imagine eases in which the granting of a lease, e.g., for a short period, would carry with it no challenge to the over-– lord’s right and consequently involve no misbehaviour or forfeiture. Every case must be considered on its own facts. The facts of the present case leave no doubt as to the misbehaviour.
The appeal is diAtuissed with costs assessed at eighteen guineas.
