ADEYINKA OYEKAN AND OTHERS
V.
MUSENDIKU ADELE
PRIVY COUNCIL
26TH DAY OF JUNE, 1957
APPEAL NO. 39 OF 1953
2PLR/1957/12 (PC)
OTHER CITATION(S)
LEX (1957)—P.C. 39/1953
BEFORE THEIR LORDSHIPS:
EARL JOWITT
LORD COHEN
LORD DENNING
BETWEEN
ADEYINKA OYEKAN AND OTHERS — Appellant
AND
MUSENDIKU ADELE — Respondent
ORIGINATING COURT(S)
ON APPEAL FROM THE WEST AFRICAN COURT OF APPEAL (LAGOS JUDICIAL DIVISION)
REPRESENTATION
Dingle Foot Q.C., Ralph Millner and T. O. S. Benson for the Appellants.
Solicitors: A. L. Bryden & Williams; Hatchett Jones & Co.
ISSUES FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- West Africa (Nigeria) — Land — Treaty of cession — Lagos — Grant of Iga Idunganran (royal palace) to Oba Docemo, his heirs, etc., for ever — Nature of estate granted — English conceptions of absolute title inapplicable — Iga the official residence of reigning Oba — Grant subject to right of succeeding Oba under native law and custom to occupy the Iga — Crown Grants (Township of Lagos) Ordinance, No. 18 of 1947 (Laws of Nigeria, 1948, c. 44), recital; s. 3.
CASE SUMMARY
ORIGINATING FACTS AND ARGUMENTS OF COUNSEL
By a treaty of cession in 1861 Docemo, the then Oba or “King” of Lagos, a descendant of Ado, the first Oba, ceded absolutely to the British Crown the port and island of Lagos. The British authorities thereafter allowed Oba Docemo to continue to occupy the Iga Idunganran, or royal palace, at Lagos, and in 1870 they made a Crown grant of the land on which the Iga stood “to the said King Docemo, his heirs, executors, administrators and assigns for ever.” The last of Docemo’s line to be Oba died in 1949, and on his death the chiefs selected as his successor, “in accordance with customary law and tradition,” the respondent, who was also descended from the first Oba Ado but by a different line from that of Docemo. Immediately thereafter the respondent and his followers forcibly entered and occupied the Iga in the face of opposition by the family of Docemo, who thereupon, resting their case on the Crown grant of 1870, began the present proceedings against the respondent claiming a declaration of title to the Iga, damages for trespass, and recovery of possession. The respondent’s defence was that he had been duly “capped” as Oba and occupied the Iga as his official residence in accordance with ancient native custom: –
APPEAL (No. 39 of 1953) from a judgment and order of the West African Court of Appeal (November 17, 1952) affirming a judgment of the Supreme Court of Nigeria (January 18, 1951).
The following facts are taken from the judgment of the Judicial Committee: The principal question on this appeal was to whom did the royal palace at Lagos belong? Its modern description was No. 26, Upper King Street, Lagos, but it had been known for over 200 years as the Iga Idunganran. It was claimed by the present Oba of Lagos as his official residence, but it was claimed by the descendants of a previous Oba as their own property. The Oba had sometimes been described as the King of Lagos, but this was hardly a correct rendering. His position had no exact parallel in English institutions. He was a very influential person whose standing was shown by the fact that he was ex officio President of the Lagos Town Council.
The dispute was a family one. The first Oba or King from whom all others had descended was named Ado. He ruled from 1630 to 1689 A.D. One important branch of his descendants was the family of Docemo who was Oba or King from 1853 to 1885: From Docemo’s accession in 1853 down to 1949 every Oba (save one for three years) was a member of Docemo’s family. The last of Docemo’s line to be Oba was Falolu, who was Oba from 1932 to 1949 and died on September 2, 1949.
On the death of Falolu the chiefs met together to select his successor. Various names were submitted to them. The family of Docemo presented one of their men as a worthy successor but the chiefs did not select him. They selected Adeniji Adele who was not a member of the family of Docemo. He was descended from the first Oba Ado but by a different line from that of Docemo. The announcement of his succession was made public in these words:
“It is officially announced that Adeniji Adele, having been properly selected in accordance with customary law and tradition, is recognized by the Government as Head of the House of Ado.”
The new Oba Adele claimed to occupy the Iga Idunganran: but the members of the family of Docemo resisted the claim. The supporters of Adele put up notices on the verandah of the Iga saying that he was coming. They also put them outside on the walls. At about 6 o’clock in the afternoon of October 1, 1949, Adele came in a car followed by the chiefs and many others and sought to enter the Iga. The family of Docemo opposed them. They pushed them back and locked the gates. Adele’s brothers got a crowbar and a hammer and forced a way in. Adele’s car was then driven into the compound followed by the chiefs and many people. They went to the shrine in the Iga. The family of Docemo slipped out and got away in cars.
Twelve days later, on October 13, 1949, the family of Docemo brought this action against Adele in the Supreme Court of Nigeria in which they claimed a declaration of title to the Iga, £2,000 damages for trespass, and recovery of possession. The defence was that Adele was duly “capped” on October 1, 1949, as the Oba of Lagos by the chiefs entitled to do so and occupied the Iga in accordance with ancient custom. The action was tried by Reece J., who dismissed the claim. The family of Docemo appealed to the West African Court of Appeal (Foster Sutton P., Verity C.J. and Coussey J.A.), who dismissed the appeal. The family of Docemo now appealed to Her Majesty in Council. The family of Docemo rested their claim on a Crown grant. They said that in 1861 Docemo made a treaty of cession with Britain whereby the territory of Lagos, including the Iga, passed to the British Crown, and that in 1870 the Crown granted the Iga to the Docemo and his family for ever. They said that since the treaty of cession, 1861, there had been no Oba of Lagos except as a courtesy title, and that no rights had attached to it.
The following cases, not referred to in the judgment, were cited in argument: Oduntan Onisiwo v. Attorney-General1; Attorney-General of Southern Nigeria v. John Holt & Co. (Liverpool) Ltd.2; Sakariyawo Oshodi v. Balogun3; Eshugbayi Eleko v. Government of Nigeria (Officer Administering).4
1 (1912) 2 Nig.L.R. 77; 2 [1915] A.C. 599; 3 [1936] 2 All E.R. 1632; 4 [1928] A.C. 459; 44 T.L.R. 632.
DECISION(S) OF THE PRIVY COUNCIL
Held:-
(1) that the evidence established that before the treaty of cession the Oba of Lagos by native custom had by virtue of his office a right to live in the Iga, and that on his death the Iga did not pass to his heirs or to his family but to his successor in office. It was the traditional home of the Obas where each of them lived.
(2) That the right to occupy the Iga was a right which the Oba possessed as Oba and, accordingly, the property in the Iga had, as provided by the Crown Grants (Township of Lagos) Ordinance, 1947, passed to the British Crown under the treaty of cession of 1861.
(3) That, approaching the case on that basis – that the Iga had passed to the Crown under the treaty – the Crown grant of 1870 did not transfer the property to the family of Docemo absolutely. Government grants did not convey English titles or English rights of ownership, and the words “his heirs, executors, administrators and assigns for ever” in the grant of 1870 were to be rejected as meaningless and inapplicable in their African setting. The effect of a Government grant was only to ascertain and denote the chief or headman who had charge of the land for the time being – it being family land; it left the interests of the family or occupiers intact, to be determined as theretofore by the local law. While the cases which established this (Sunmonu v. Disu Raphael [1927] A.C. 881; Idewu Inasa v. Oshodi [1934] A.C. 99; 50 T.L.R. 168) were concerned only with the rights of the family or occupiers, whereas the present case concerned the rights of the Oba, those cases were confirmed and made of general application by section 3 of the Ordinance of 1947, which provided that
“All grants of land … within … Lagos … shall be deemed to have vested in the grantee an estate free from competing interests and restrictions, save only such interests and restrictions, recognized by native law and custom, as at the date of the grant affected such estate.”
(4) That, applying section 3 of the Ordinance of 1947, the grant of 1870 vested in Docemo an estate which was subject to “such interests and restrictions, recognized by native law and custom” as affected it at that date. Accordingly, whatsoever estate passed to Docemo, it was subject to the right of his successor to occupy the Iga – this right being an interest and restriction recognized by native law and custom. The grant took effect only subject to that right.
(5) That the respondent, the present Oba, was accordingly entitled to occupy the Iga, was entitled to enter it as he did, and the Docemo family were wrong to resist him. No cause for action in damages lay: section 292 of the Criminal Code (Laws of Nigeria, c. 42).
Hemmings v. Stoke Poges Golf Club [1920] 1 K.B. 720; 36 T.L.R. 77 applied.
Judgment and order of the West African Court of Appeal affirmed.
Original price was: ₦2,500.00.₦2,000.00Current price is: ₦2,000.00.
