Surakatu Lawani V. Jeminatu Esu Tadeyo & Anor (1944)
LawGlobal Hub Judgment Report – West African Court of Appeal
Action for recovery of possession—Native Law and Custom applicable.
” A ” acquired the interest of Chief Akinlolu Oloto as a result of a judicial sale of No. 40 Coates Street, Ebute Metta. ” A ” claimed that the interest purchased included the right to forfeit defendants’ interests.
Held : the right bought did not include a power to dispossess for misbehaviour persons who had acquired a right of occupation during good behaviour as the Chief’s right of forfeiture is not an attachable interest.
The facts are fully set out in the judgment. J. I. C. Taylor for Appellant.
A. L. Johnson for Respondents.
Cases cited .–
Ashogbon v. Oduntan 12 N.L.R. 7.
Onisiwo and Others v. Gbamgboye and Others 7 W.A.C.A. 69. Eshugbayi Chief Oloto v. Dawudu and Others 1 N.L.R. 58.
The following joint judgment was delivered :-
The Plaintiff-Appellant sued the first Defendant for recovery of possession of premises situate at No. 40 Coates Street, Ebute Metta. The second Defendant was joined on his own application.
In his Statement of Claim the Plaintiff set out :-
- That on the 6th August, 1941 the property situate and being at No. 40 Coates Street, Ebute Metta was at the instance of the Plaintiff in re Amodu Tijani Chief Oluwa vs. Chief Akinlolu Oloto and two others—Suit No. 331 /40 sold by public auction.
- That at the said sale of the said property the Plaintiff in the present suit Surakatu Lawani was the highest bidder and was declared the purchaser of the said property for the consideration of £30. (Thirty pounds sterling).
- That further the first Defendant in the present suit, Jeminatu Tadeyo, in re J. E. Tadeyo vs. Amodu Tijani Oluwa and Surakatu Lawani Suit No. 103 /1942 instituted the said proceedings to set aside the sale mentioned in paragraphs 2 and 3 above, but that the said action was struck out with costs to the Defendant assessed at £5. 5s. (Five guineas).
- That the Defendants in the present suit are in possession of the said premises and, though frequent requests have been made by the Plaintiff for delivery up of possession persistently refused to comply with the Plaintiff’s requests.“
The Defendants admitted paragraphs 2, 3 and 5 of the Statement of Claim and pleaded to paragraph 4 as follows :-
” 2. As to paragraph 4 of the said Statement of Claim however the Defendants say that Suit No. 103 !42 was withdrawn because the first Defendant could not he reached being prevented access to Lagos by reason of the war in the Dahomey ” (Vichi France).”
They also pleaded long and undisturbed possession, lachcs, acquiescence, stale claim and the Statute of Limitations. Actually the first Defendant has taken no part in the proceedings either in the lower Court or in this appeal, in which she has not been served. It was the second Defendant who defended the case in the lower Court and is now contesting this appeal.
The learned trial Judge after hearing the evidence dismissed the Plaintiff’s claim saying :—
” In this case however plaintiff claims possession of the premises by virtue of his purchase and it is accordingly necessary to consider what in fact he purchased or what in fact was sold under the writ of Fi. Fe. in Suit No. 331/1940. The Notice advertising the Public Auction has been filed and marked SL2 and it follows the usual form in sates of this type of land and advertises ” The Right Title and Interest of Chief Akinlolu Oloto in the preinises “. (Chief Oloto defended the action for Defendant in his capacity as Head of the Oloto family). One of the Plaintiff’s witnesses has deposed that the present tenants and presumably their predecessor have never been dispossessed and the Oloto family have not been in possession of the buildings. It therefore follows that all that could be sold to the purchaser and all he could purchase was the right of reversion of stool or family land to the family or their Chief and what has been described as usufructuary title.
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” Accordingly Plaintiff’s claim for possession fails.”
The Plaintiff now appeals to this Court, contending first that the right, title and interest of Chief Oloto, which the Plaintiff purchased, included the right to forfeit the Defendants’ right of occupation for misbehaviour, so that he, the Appellant, now possesses that right, secondly that ” the defendant having impugned his overlords title committed a breach of his tenure under native law and custom and thereby forfeited all his rights in the property : the learned Judge was therefore wrong in holding the plaintiff’s claim for possession fails.”
As to these contentions, in the first place the Plaintiff’s Statement of Claim set out no claim to have vested in him a right of forfeiture, nor did it aver that any actual forfeiture had in fact taken place. Plaintiff’s Counsel contended that the claim in the writ to recovery of possession coupled with the averment in the Statement of Claim that frequent requests had been made for delivery up of possession and refused was sufficient to entitle him to ask the Court to declare that Defendants’ rights were forfeited and grant the prayer in the writ. We do not agree. It is obvious that the omission to plead forfeiture, if it is relied upon, violates the first principle of pleading that all material facts relied upon must be averred. It may be pointed out that if a party to a suit intends to rely upon a particular native law and custom, as for instance, the native law and custom as to forfeiture, that is a material fact which must be pleaded.
In the course of his argument Counsel referred us to three reported cases, viz.: Ashogbon v. Oduntan 12 N.L.R. p.7 Onisiwo and others v. Gbatngboye and others 7 W.A.C.A. p. 69, Eshugbayi Chief Oloto v. Dawudu and others 1 N.L.R. p. 58. In both the first two of these three cases the plaintiffs specifically claimed a declaration of forfeiture. The third was an action to recover possession. The pleadings (if there were any, and there probably were not) do not appear from the report, but the decision in plaintiff’s favour was based on the findings ” that the successors of the grantee ” required to get permission from plaintiff to continue the use and that they never got such permission “. Therefore even if there were any substance in the Appellant’s contentions we should hold that he could not succeed on them since no issue as to forfeiture arose upon the pleadings.
But we are of opinion that there is no substance whatever in the contentions. So far as we are aware it is the first time that it has ever been contended that sale of the right, title and interest of a Chief in land carried with it the right of the Chief to dispossess for misbehaviour those persons who had acquired a right of occupation during good behaviour. That would be carrying the matter far beyond the native law and custom governing it ; it would, in fact, be entirely contrary to the fundamental ideas upon which native law and custom is based, namely the duty of the occupier to recognize the rights of his Chief. It is obvious that the Chief’s right of forfeiture is not an attachable interest. Further there is no such thing as automatic forfeiture ; misbehaviour does not automatically involve forfeiture, it merely makes the culprit liable to forfeiture at the will of the overlord, which, nowadays, if resisted can only be enforced by reference to the Courts.
For these reasons we hold that there is no substance whatever in this appeal and it is dismissed with costs assessed at 15 guineas.