Alhaji Suara Yusuff V. Yetunde Dada (Mrs.) & Ors. (1990)

LawGlobal-Hub Lead Judgment Report

AGBAJE, J.S.C. 

The action which gave rise to this appeal originated in an Ibadan High Court. There Mrs. Yetunde Dada & 3 Ors. as administratrices/administrators of the estate of Chief J.O. Laniyonu, deceased, sued Alhaji Yusuf for the following reliefs:

N25,000.00 damages for trespass committed by the defendant, his servants, agents and tenants in respect of Chief J. O. Laniyonu’s land lying and situate at AGBAAKIN FAMILY LANDILA LAYOUT Iwo Road, Ibadan on or about August, 1979 and which trespass still continues;

2. AN INJUNCTION to restrain the defendant, his servants, agents,

tenants, workmen or otherwise howsoever from entering,

remaining, or further trespassing on the said land.”

Pleadings were ordered, filed and delivered.

Relevant to the issues raised in this appeal are the following averments in the plaintiffs’ statement of claim:-

“1. The 1st and 3rd plaintiffs are the children of late Chief Josiah Oladipo Laniyonu who died intestate at Ibadan on 6/9/78 while the 2nd and 4th plaintiffs are the widow and cousin of the said late Chief J.O. Laniyonu respectively.

2. By virtue of a deed of conveyance dated 21/7/60 registered as no. 23 at page 23 in volume 391 of the lands registry in the office at Ibadan, the late Chief J.O. Laniyonu became seised of a parcel of land lying and situate at Agbaakin layout, Iwo Road, Idi-Ape Ibadan by grant from AGBAAKIN FAMILY for a consideration of 100.00 (One Hundred Pounds).
3. The late Chief Laniyonu was put in possession immediately after the execution of the said conveyance and no one disturbed him on the land.
4. The plaintiffs are the lawful administrators of the estate of the late Chief J.O. Laniyonu having obtained Letters of Administration dated 22/9/81 from the probate registrar of the High Court of Justice Oyo State of Nigeria.
5. The defendant is unlawfully occupying late Chief Laniyonu’s land and it is the area marked RED in PLAN No. OB.5095 dated 30/1/84 and drawn by Mr. O. BAMGBOSE, a licensed surveyor and attached to this document. Plaintiffs will found on this plan at the trial of this action.
6. On or about August, 1979 the defendant wrongfully occupied the land in dispute at Iwo Road,Ibadan without lawful authority and commenced building construction of the structure shown in the said plan No.OB.5095.”

The defence of the defendant to the claims against him is contained in part in the following paragraphs of his statement of defence:-

“3. The defendant admits paragraph 1 of the plaintiffs’ statement of claim but will add that the 3rd plaintiff being the eldest surviving son is the Dawodu and head of late Chief J. O. Laniyonu family under native law and custom. The defence case will be founded upon this legal issue at the trial of this suit.

4. With reference to paragraphs 4, 5 and 6 of the statement of claim the defendant avers that before the grant of the letters of administration to the plaintiffs on 22/9/81 by the probate registrar, 3rd plaintiff in order to meet the funeral and testamentary expenses of his late father (Chief J.O. Laniyonu) and being the eldest surviving son had sold and transferred the land in dispute to the defendant for valuable consideration in the presence of witnesses in accordance with native law and custom.”

The plaintiffs filed a reply to the statement of defence and having regard to the issues raised in this appeal mention need only be made of paragraphs 1, 2 and 3 of the reply which read as follows:-

(1) With reference to paragraph 3 of the statement of defence the plaintiffs say that no one has been appointed head of late Chief J.O. Laniyonu’s family but that the plaintiffs are joint administrators/administratrices of the estate of Chief J. O. Laniyonu in which the land in dispute forms a part.

2. With further reference to paragraphs 3 and 6 of the statement of defence the plaintiffs never at anytime authorised any single administrator to sell the land in dispute to the defendant nor acquiesced in the illegal possession of the land in dispute by the defendant.
3. With reference to paragraph 4 of the statement of defence the plaintiffs say that the funeral and testamentary expenses of late Chief J.O. Olaniyonu were borne by a relation, Chief Sobo Sowemimo (S.A.N.) who was later reimbursed from estate account on the grant of letters of administration to the plaintiffs.”

The case proceeded to trial before Sijuade, J., who having heard the parties and their witnesses gave his judgment in the case on 2nd July, 1984. He found for the plaintiffs holding in doing so as follows:-

“On the whole, the defendant has failed to prove that his possessory title to the land in dispute is legal and better to oust the legal title of the plaintiffs whose claim I find overwhelmingly proved to my satisfaction. The defendant’s hold has therefore been an adverse possession of the land in dispute since 1979 without the authority and consent of legal owners, and must therefore be restrained.

He is therefore a trespasser who is liable in damages to the plaintiffs notwithstanding the huge investments said to have been made by him on the land. It is an act of recklessness on his part to proceed to development without first obtaining a legal title or instrument from his vendor even though he described himself as a land agent in his pleading.”

The defendant being dissatisfied with the judgment appealed against it to the Court of Appeal Ibadan Division. His appeal was not successful. This is therefore a further appeal by the defendant against the decision of the trial court against him, albeit by way of appeal from the decision of the Court of Appeal.

An important issue in this appeal turns on the following submissions which counsel for the appellant made in the court below and which was rejected there. It was the submission of counsel there that the 3rd plaintiff, Abiodun Laniyonu, being admittedly the most senior male member of the children of the late Chief Laniyonu, deceased, became ipso facto, the head of Chief Laniyonu family upon the demise of Chief Laniyonu. Rejecting this submission Adenekan Ademola, J.C.A., in his lead judgment in which Uche Omo and Ibrahim Kolapo Sulu-Gambari, JJ.C.A., concurred held as follows:-

“Dealing now with proposition no.3, I would regard it not as a proposition of law, but at least an exaggerated statement about the position of the eldest son (Dawodu) in the Yoruba society. There is no power of sale vested in any eldest son under customary law. In the sociology of the Yorubas, a Dawodu or the eldest son exist during the lifetime of his father and it does not come into being after his death. He (the Dawodu) is like other children of the father with no special power in relation to family land. He occupies a position of pre-eminence among his father’s children and no more.

I am sure Chief Afe Babalola in ascribing to him (Dawodu) a power to alienate family land is confusing his status with that of the status of the head of a family. The two positions are distinct and different under customary law and may co-exist in one person depending upon the circumstances within the family. The submission of Chief Afe Babalola is a preposterous statement of the Yoruba customary law. I cannot accept it. .

In my view, there is no automatism in the customary law of the Yoruba as to succession by the eldest child either to the position of the headship of the family, or family title. In their sociological dealings, they are a pragmatic people who are not given to theorising in any shape or form. I agree with the learned Judge, Sijuade, J., when he said thus in his judgment and I quote:

‘According to the testimony of the expert witness called by the defence on matters of customs of Yoruba people of Ibadan, such meeting could be called, even though he maintained that the most senior male member even if junior to the other female children, is the head of that family. Much as I am inclined to agree with this statement on customs being a Yoruba man myself, I, nonetheless, take a judicial notice that the statement is not unqualified; it is not true in all cases. Suppose the most senior male or rather the only male child is an infant or an imbecile, or incapacitated by reason of bad health or legal confinement, or even one that he is of notorious character in the family, does such person automatically step into the shoes of the headship It would become absurd and ridiculous if that statement of native law and custom is accepted without any qualification.’

As I have said earlier on in this judgment the crux of the defence of the defendant to the claims of the plaintiffs against him is contained in paragraphs 3 and 4 of his statement of defence. The bedrock of this defence is the contention by the defendant that the 3rd plaintiff being the eldest surviving son of the late Chief J.O. Laniyonu, i.e., the Dawodu of Chief Laniyonu, became, on the death of Chief Laniyonu, the head of late Chief J.O. Laniyonu family under native law and custom. This contention having been rejected it is easy to see why the courts below found against the defendant.

The Court of Appeal apart from rejecting the above vital contention of the defendant gave another reason why in its own judgment the claims of the plaintiff must succeed against the defendant. The reason is contained in the following passage in the lead judgment of Ademola, J.C.A.:-

“Finally, I come to the issue as to what effect the Letters of Administration granted by the Probate Division of the High Court of Oyo State has upon the case as a whole. Mr. Ladapo, senior learned counsel, did say that Exhibit C has now vested the real and personal property of the late Chief Josiah Laniyonu in the administrators named in that document. The learned Judge was also of the same view that it is the only legal instrument by which the family can transfer or deal with the real properties of their deceased father. I think they are both right.

Section 10 of the Administration of Estate Laws of Oyo State states thus:

‘Where a person dies intestate and administration is granted under this law in respect of his real and personal estate, that estate shall be deemed to have been vested from the date of his death until administration is granted, in the Chief Judge in the same manner and to the same extent as it vests in the probate Judge of Her Majesty’s High Court of Justice in England.’

I have italicised a whole sentence in that enactment. What it means is at the death of Chief Laniyonu his real and personal estate shall be deemed to have been vested in the Chief Judge of Oyo State. I am not sure that Chief Laniyonu or for that matter any Nigerian who dies intestate within the jurisdiction of the Oyo State High Court would contemplate that would be the direction of which his estates should go after his death.

But be that as it may, the application of that section of the law to this case means that the third respondent or for that matter the family if even it wishes, cannot pass effective title to anybody until the Letters of Administration have been granted by the court. Viewed from that stand point alone, any disposition made by the third respondent to the appellant whether as Dawodu or as the so-called head of the family is of no effect whatsoever.”

It is against the whole of the judgment of the Court of Appeal that the defendant has now appealed to this court. Briefs of arguments were filed and exchanged on both sides.

For the defendant, the appellant, it is contended by his counsel, Chief Afe Babalola, S.A.N., in the appellant’s brief of arguments, that the following issues arise for determination in this appeal, going by the grounds of appeal in the notice of (sic) appeal

“(i) Whether under the customary law of the Yorubas the eldest son of a deceased founder of a family could automatically succeed to the headship of the family.

(ii) Whether the conduct of the 3rd plaintiff in joining in this action as a plaintiff to evict the defendant from the land he sold to him is not unconscionable and therefore inequitable as to vitiate this action.

(iii) What is the effect of the Letters of Administration issued to the plaintiffs on the sale of the deceased’s land by the 3rd plaintiff to the defendant prior to the issuance of the Letters of Administration”

For the plaintiffs, the respondents, it is submitted on their behalf by their counsel, Chief Ladosu Ladapo, S.A.N., in the respondents’ brief of argument that the following issues arise for determination in this appeal:-

“(i) Whether under the customary law of the Yorubas it is settled by the authorities that the eldest son of a deceased head of a family automatically succeeds to the headship of the family

(ii) What is the effect of section 10 of the Administration of Estate Laws of Oyo State (Cap. 1) Laws of Oyo State, 1978, on this appeal

(iii) What is the attitude of the Supreme Court to two concurrent findings of fact of the lower courts made in favour of one of the parties to an appeal, and under what circumstances would the Supreme Court set aside such concurrent judgments”

Relating the issues said by the defendant/appellant to arise for determination to those put forward by the plaintiffs/respondents, it is not difficult to see that issue (i) of the defendant and issue (i) of the plaintiffs are saying virtually the same thing perhaps in not exactly the same wording.

A consideration of issue (iii) postulated by the defendant must necessarily involve the consideration of section 10 of the Administration of Estates Law of Oyo State, Cap. 1, Laws of Oyo State, 1978, which is what issue (ii) of the plaintiffs/respondents’ brief of arguments is asking for.

It is inescapable that if this court resolves all or any of the issues raised by the defendant in his favour, it must go further and consider whether by virtue of that decision it can properly overturn the concurrent findings of fact of the two courts below in this case.

I have done the above examination of the various issues said on both sides to arise for determination in this case in order to demonstrate that I do not agree with the submission of counsel for the plaintiffs/respondents in the latter’s brief of arguments that the issues enumerated in the appellant’s brief of argument are not the real issues for determination in this appeal. I am satisfied that they are and they even encompass the issues said to arise for determination by the plaintiffs/respondents. So I will consider this appeal by reference to the issues raised in the defendant’s/appellant’s brief.

I now take issue (i) in the appellant’s brief which raises the question whether it is the customary law of the Yorubas that the eldest son of a deceased founder of a family would automatically succeed to the headship of his family.

Before I go further let me remind myself of the relevant facts in this regard. By para. 2 of the statement of claim it is pleaded that the late Chief J. O. Laniyonu acquired the land in dispute as his personal property in his lifetime. In that event the land in dispute was the late Chief J. O. Laniyonu’s personal property. Upon his death intestate, as it is the case here, that property would be that of Chief J. O. Laniyonu’s family (see Fynn v. Gardiner 14 W.A.C.A. p.669, 260 at 261). The late Chief J.O. Laniyonu was evidently the founder of that family. The third plaintiff, Abiodun Laniyonu is the eldest surviving son of Chief J.O. Laniyonu, deceased. So in practical terms what I am about to consider under issue (i) is whether or not upon the death of Chief J.O. Laniyonu, deceased, his eldest son, the 3rd plaintiff, Abiodun Laniyonu, would become automatically the head of Chief J.O. Laniyonu family, the family comprising only all his surviving children. For it is settled law that under Yoruba customary law it is only the children of the deceased who are entitled to inherit his estate. (See Adisa v. Ladokun (1973) 9 & 10 S.C. 55).

It is the submission of counsel for the defendant, Chief Afe Babalola, S.A.N., relying on the decisions in Olowu v. Olowu (1985) 3 N.W.L.R. (Pt.13) 372 and Eyesan v. Sanusi (1984) 4 S.C. 115, and the provisions of section 73(1)(i) of the Evidence Act Volume 11, Laws of the Federation that it is now settled law that upon the death of the founder of the family his eldest surviving male child would become automatically the head of the family of the deceased.

In this regard, Coker, J.S.C. delivering the lead judgment of this court in which the other Justices sitting on the appeal concurred said in Olowu v. Olowu at page 387:-

“There is yet another point. There have been several decisions of the courts on the customary law of succession and distribution amongst the Yorubas. The issues of a deceased person on intestacy succeed to his properties. Not his relations Lewis v. Bankole (1908) 1 N.L.R. 81 at 102 and S.J. Adeseye & Ors. v. S.F. Taiwo (1956) 1 F.S.C. 84 (1956) SCNLR 265 are authorities in support of the view that on the death intestate of the founder of the family, his eldest son, who is the “Dawodu”, becomes the head of the family, and he takes over the management of the estate of the deceased for himself and other members of his issues.

It is he, 1st defendant, as the “Dawodu”, who decides which system of distribution should be adopted, be it the “Idi-Igi” or “Ori-Ojo-ri” system. See Taiwo v. Lawani (1961) All N.L.R. (Pt.4) 703 and Dawodu v. Danmole (1958) 3 F.S.C. 46 [1958] SCNLR 6 and the Privy Council decision reported in (1962) 1 All N.L.R. 702. See also Adeniji & Ors. v. Adeniji & Ors. (1972) 1 All N.L.R. (Pt.1) 298. In the case, it was heard that the eldest son was the head of the deceased’s family, and not his eldest child (a daughter) or the brother of the deceased.”

Also, in this regard, Obaseki, J.S.C., delivering the lead judgment of this court, in Eyesan v. Sanusi said at pages 135-136:-

“The fact that Taurid Sanusi, the first respondent is the eldest surviving son of the deceased and head of the family of the deceased has not been controverted. It is a well settled statement of customary law that when a Yoruba person dies, title to his properties devolves on all his surviving children in equal shares and the eldest child assumes the position of head of the family and manager of the estate of the deceased for and on behalf of all the children. See Kareem v. Ogunde (1972) 1 All N.L.R. (Pt.1) 73.

The issue of consent to be appointed to carry on proceedings touching the claim by a 3rd person to the property claimed by the deceased to be his and now property of all his children by devolution seems to me to warrant very little consideration particularly when there is no evidence of renunciation of right of inheritance,”

Since Coker, J.S.C., in Olowu v. Olowu cited Lewis v. Bankole (1908) 1 N.L.R. 81 as an authority, for this decision, and in Kareem v. Ogunde, an authority upon which Obaseki, J.S.C., relied in Eyesan v. Sanusi Coker, J.S.C. referred to Lewis v. Bankole (supra) as the locus classicus on the law as to the entitlement of a Yoruba person’s children to succeed in Lagos to his property on his death intestate, I would like to refer to what was said in Lewis v. Bankole on the point at issue. To this end, I refer to pages 101-102 of the report where Osborne, C.J., said:-

The evidence before me was mainly directed to two main points:-

(i) Who is the proper person to be head of a family;

(ii) ……………………….

The first point for consideration is as to headship of the family, and the main question here at issue is whether or not a woman can be head. The supporters of the old school and the Yoruba witnesses deny this but the Lagos chiefs hold a contrary view.

There is practically a consensus of opinion that on the death of the founder of a family to be a well established rule both in Lagos and in other parts of Yoruba Land. It is after the death of the Dawodu that we begin to find variations, according to the plaintiffs’ witnesses, by Yoruba custom the other sons of the founder of the family are taken in turn, and then the sons of the Dawodu and other sons, the headship being ever kept in the male line. One explanation of this rule is that the women on marriage go and live with their husbands; another is that a woman is only “part of a man,” since a man may have several wives, but a woman can have but one husband; and Yoruba proverbs have been quoted, foretelling the disruption of a house under female rule.

On the other hand, the view of the Lagos chiefs is that it is the eldest child, whether male or female, who becomes head after the Dawodu.

There is nothing inequitable in this recognition of women’s rights; and the town of Lagos bears striking testimony to the honour here accorded to women in the names of the square wherein this court house stands, and one of the principal markets, both called after women of wealth and importance in bygone days. I must accept the pronouncement of the Lagos chiefs in this matter, and I declare that the proper person to be head of Mabinuori’s family is the eldest surviving child of Mabinuori, that is, the defendant, Fakeye.” (Italics mine)

All these authorities were cited at the lower court. With particular reference to Olowu v. Olowu, Ademola, J .C.A., in his lead judgment said:

“With respect, this is a broad statement of customary law of succession and must admit of some qualifications. It does not in my view lay down the principle of law about the automatic translation of the eldest son (the Dawodu) becoming the head of the family. The cases of Lewis v. Bankole (supra) and Adeseye v. Taiwo (supra) mentioned therein do not lay down what Chief Afe Babalola is hereby contending for. Adeseye v. Taiwo did not proceed on who takes over the headship of the family after the death of the founder of the family.”

As regards Lewis v. Bankole, the learned Justice of Appeal said:-

Lewis v. Bankole leaves the question as to who becomes the head of the family open to a decision of members of the family, though in their collective wisdom the eldest female child with leadership qualities may be chosen as such head.”

Counsel for the plaintiffs/respondents, Chief Ladosu Ladapo, S.A.N., has adopted the reasoning of Ademola, J .C.A., for his submission to us that on the death intestate of the founder of a family his eldest surviving son does not automatically become the head of the family of the deceased. Counsel for the respondent then submitted as follows:-

It is respectfully submitted that the authorities cited in the appellant’s brief at pages 3-4 viz Olowu v. Olowu; Lewis v. Bankole; Eyesan v. Sanusi are broad statements of customary law of succession which must admit of qualifications. They are indeed distinguishable from the case on hand as follows:-

(i) In Abibatu Folarin & Ors. v. Flora Cole & Ors. (1986) 2 N. W.L.R. (Pt.22) 367, Nnaemeka-Agu, J.C.A. (as he then was) refused to agree to those decisions which suggest that where there is any male child the succession is automatic but when there is no male child an election should be held.

(ii) Lewis v. Bankole (1908) 1 N.L.R. 81 at pp. 101-102 is not on all fours with the instant case in that what was in issue then was the right of the female sister of a DAWODU. Also it was a Lagos case.

(iii) Eyesan v. Sanusi did not decide that the eldest son automatically assumes the headship of the family of the deceased; rather it decided that the ELDEST CHILD assumed the position. Again this was a Lagos case.

(iv) Kareem v. Ogunde merely said that the native law and custom whereby a YORUBA person’s children are entitled to succeed in LAGOS to his property on his death intestate has been firmly established and does not have to be proved by evidence. An exposition of section 14 of the Evidence Act was also given.

From foregoing, it is clear that the Court of Appeal did not reject the binding force of precedents. It merely distinguished the cases from the instant case, and in my respectful submission, quite rightly.”

Section 73(1)(L) of the Evidence Act provides as follows:-

“73(1) The court shall take judicial notice of the following facts:- (a)-(k) not relevant;

(1) all general customs, rules and principles which have been held to have the force of law in or by any of the superior courts of law or equity in England or the Federal Supreme Court or former Supreme Court of Nigeria or by the High Court of the Region and all customs which have been duly certified to and recorded in any such court;

The decisions in Olowu v. Olowu (supra), Lewis v. Bankole (supra), Eyesan v. Sanusi (supra) and Kareem v. Ogunde (supra) are all decisions of the Supreme Court of Nigeria whilst that in Lewis v. Bankole (supra) was a decision of Superior Court of Nigeria. I have quoted passages in all these cases relevant to the point at issue. What remains to be seen now is whether or not they have settled the native law and custom on the point at issue.

As regards Olowu v. Olowu, Ademola, J.C.A., held that that statement in it as to the customary law among the Yorubas of succession of the headship of the family on the death intestate of the founder of the family is a broad statement of customary law of succession which must necessarily admit of some qualifications. I have reproduced the decision on Olowu v. Olowu (supra) earlier on in this judgment. I cannot regard the decision as a broad statement of customary law of succession. To my mind the decision by virtue of sec.73(1)(L) of the Evidence Act has taken judicial notice of the relevant customary law by reference to decisions of a Superior Court of Nigeria and of the Federal Supreme Court of Nigeria. In other words, Olowu v. Olowu did not treat the issue of the customary law of succession to the headship of the family on the death intestate of the founder of the family as one of res integra. It treated it as one already settled by decided cases the earliest of which being Lewis v. Bankole. We are thus thrown back to Lewis v. Bankole in our quest for the answer to the question whether the decision in Olowu v. Olowu on the point at issue is a broad or definitive statement of Yoruba customary law of succession.

It appears to me that the following passage in the judgment of Osborne, C.J., in Lewis v. Bankole, which, I repeat. Coker, J.S.C., has described as the locus classicus on the customary law of succession provides the answer to this question at pages 100 – 101 of the report:-

“This judgment has been upset on appeal by the full court, who have remitted the action to this court for the purposes above stated, viz:

(1) to ascertain the native law or custom, if any, which would regulate the matters in dispute .

I have during thirteen years experience of West Africa been concerned in “one capacity or another with several cases in which native customary law has been the subject of judicial investigation; and in nearly every case I have found that there are general underlying principles not difficult to understand, and obviously based on the primitive requirements of the community. In some instances those principles have been modified, and even departed from, as the result of contact with European methods; indeed, one of the most striking features of West African native custom, to my mind, is its flexibility; it appears to have been always subject to motives of expediency, and it shows unquestionable adaptability to altered circumstances without entirely losing its individual characteristics. The great danger in applying it in this court is that of crystallizing it in such a way that it cannot be departed from in cases where expediency demands, and where natives themselves would depart from it; and I therefore preface my findings with the remark that they are intended as findings of the general principles which govern native custom in lagos at the present day, and not as hard and fast findings of immutable native law. ” (Italics mine)

It clear from this passage that Lewis v. Bankole (supra) was concerned with stating definitive general principles of native law and custom of succession and not broad statement of customary law, which admit of qualifications. Such statements of customary law as it was recognised in Lewis v. Bankole, are not immutable native law. Even Owonyin v. Omotosho (1962) W.N.L.R. I at 5 also recognised it that native law and custom is a mirror of accepted usage. And as Osborne, C.J., observed in Lewis v. Bankole, native law and custom is flexible, it may be subject to motives of expediency and it is certainly adaptable to changed circumstances. However none of these points arise in this case which is concerned with the ascertainment of the general principles of the native law and custom governing the point at issue. In other words, we are not concerned with changes or altered circumstances to which the general principles of customary law may have to adapt. Nor are we concerned with expediencies like, going by some of the examples given by the learned Judge the eldest male son being an imbecile or non compos men. Lewis v. Bankole in our quest for the answer to the question whether the decision in Olowu v. Olowu on the point at issue is a broad or definitive statement of Yoruba customary law of succession.

The position here relates to the ascertainment of the applicable general principles of customary law and their application under normal or ordinary circumstances.

The conclusion I reach therefore is that Ademola, J .C.A., was wrong when he said that the statement of customary law of succession in Olowu v. Olowu was a broad statement admitting of some qualifications to it. In my judgment it is a definitive statement of the general principles of the customary law of succession. As I have said the customary law is not immutable. But the immutability or otherwise of the customary law is not any issue in this case. This is not the end of the matter.

The following passage in the judgment of Ademola, J.C.A., namely:

“The cases of Lewis v. Bankole and Adeseye v. Taiwo mentioned therein do not lay down what Chief Afe Babalola is hereby portending for.” gives the impression that Lewis v. Bankole did not decide what Olowu v. Olowu and Chief Babalola, S.A.N., said it decided. I should therefore find out if this impression is right or wrong. In order to do so I have to remind myself of the relevant facts as can be gathered from the following passages in the judgment of Osborne, C.J., at page 99:-

“It is advisable once again to recapitulate briefly the principal facts. Chief Mabinuori, once a slave, but afterwards a person of wealth and importance, died in the year 1874 leaving a large family of 12 children, 5 sons and 7 daughters. His eldest child, Fatola, was a daughter; his eldest son was Fagbemi, ……………………. Fagbemi succeeded as head of the family on the death of his father, and though he did not reside in the family compound he made use of the shops. He died in 1881, and for a while his eldest son, Benjamin Charles Dawodu, appears to have been accepted as head of the family but he evidently got into financial difficulties, and towards the end of his life dispute arose between him and his aunts as to the rents of the shops in the family compound Benjamin Dawodu died in 1900, and his brother, the plaintiff James Dawodu, now claims to be head of the family, all Mabinuori’s sons having died, and he being the eldest surviving son of Fagbemi.” (Italics mine)

Two situations were involved in the statements of the customary law of succession to the headship of the family made in Lewis v. Bankole. One situation with which the case was concerned is the position on the death intestate of the founder of the family. The other situation is the position on the death of the surviving eldest son or Dawodu of the founder of the family.

As regards the first situation Lewis v. Bankole says unequivocally as follows:-

“There is practically a consensus of opinion that on the death of the founder of a family the proper person to be head of the family is the “Dawodu” or eldest surviving son. This seems to be a well established rule both in Lagos and in other parts of Yoruba land.”

According to Lewis v. Bankole this is the position not only in Lagos but also in the other parts of Yoruba land.

As regards the second situation, that is the position after the death of the Dawodu, Osborne, C.J., having considered the variations in the opinion evidence before him accepted that of the Lagos Chiefs to the effect that it was the eldest child whether male or female who became head after the Dawodu. It was because of this finding that Osborne, C.J., declared that the proper person to be the head of Mabinuori’s family after the Dawodu’s death, was the eldest surviving child of Mabinuori who then happened to be a female, that is, defendant Fakeye.

It is obvious that defendant Fakeye never contested the headship of the family with the Dawodu Fagbemi and could not even have done so successfully.

It is the first situation with which the case of Lewis v. Bankole (supra) was concerned, that is the position immediately after the death of the founder of the family, that is apposite here. The second situation that is the position after the death of the Dawodu of the founder does not arise here.

It is because the Court of Appeal did not get a clear picture of these two situations that it fell, in my view, into the error of forming the wrong impression that Lewis v. Bankole (supra) did not say what this court in Olowu v. Olowu (supra) said it said namely on the death intestate of the founder of the family his eldest son who is the Dawodu becomes the head of the family and he takes over the management of the estate of the deceased for himself and the other members of the family.

A short cut to the conclusion I have just reached would have been for me to base my decision on the following submissions of Chief Afe Babalola, S.A.N.:-

“It is not open to a lower court to disagree with the decision of a higher court on any point even if the decision of the higher court was reached per incuriam. The only course open to a lower court that does not feel able to follow the decision of a higher court on any point is to state a case to the higher court for consideration.

Because of the hierarchical system of our courts any decision of this court is binding on the Court of Appeal. Whatever reservation that court may have about the correctness of the decision it is still bound to apply it. So in the instant case, it was bound to apply the decision in Olowu v. Olowu (supra) which is clear and unambiguous even if it was given erroneously. If I had done this and left it at that the doubts which the Court of Appeal had raised about the correction of the decision might have remained with it. And I too by reversing the Court of Appeal on the ground of the binding effect of the decision of a higher court on a lower court and nothing more would inadvertently have accentuated the doubts.

The decision I have reached on the point at issue disposes of the point made by counsel for the respondent, Chief Ladoso Ladapo, S.A.N., that the decisions in Lewis v. Bankole, Eyesan v. Sanusi and Kareem v. Ogunde (supra) were all concerned with the exposition of the customary law of succession in Lagos alone. The decision in Folami v. Cole (1986) 2 N.W.L.R., (Pt.22) 367 at 376 is that of the Court of Appeal and must give way or bow to that in Olowu v. Olowu, a decision of this court.

The evidence of the defendant and that of his witness, Alhaja Kudiratu Lawal, a wife of Abiodun Laniyonu, the eldest son of Chief J.O. Laniyonu, deceased, showed clearly that after the death of Chief J.O. Laniyonu, negotiations between the defendant and Abiodun Laniyonu began about the sale of J.O. Laniyonu’s family land. The evidence also showed that Abiodun Laniyonu sold the land to the defendant not as his, Abiodun Laniyonu’s personal property but as J.O. Laniyonu’s family land. Again Abiodun Laniyonu sold the land in his capacity as the eldest surviving son of J.O. Laniyonu, deceased without apparently consulting the other members of his family. The defendant paid the purchase price of the land and was put into possession of it by Abiodun Laniyonu in the presence of witnesses, the mechanics who were on the land before the defendant.

In view of my decision in this case on the customary law of succession, Abiodun Laniyonu, the eldest surviving son of Chief J.O. Laniyonu, deceased, the founder of the family in question was at all times material to this case and still is the head of J.O. Laniyonu family land. On the authority of Cole v. Folami [1956] SCNLR 180; 1 F.S.C. 66; [1957] SCNLR and having regard to what I have said above there was apparently a sale under native law and custom of the land in dispute, Laniyonu family land, by Abiodun Laniyonu as head of the family. On the authority of Ekpendu v. Erika 4 F.S.C. 79; [1959] SCNLR 186 that sale is at the worst only voidable at the instance of the members of Laniyonu who did not consent to it. But the latter have not moved to set it aside. So that sale is apparently still subsisting and by it Laniyonu family would have divested itself of all its interest in the land.

Ordinarily what I have just said would mean that the claims of the plaintiffs against the defendant for damages for trespass to the land in dispute and for an injunction against further trespass must fail in law. But then there is this other view of the two courts below based on their construction of section 10 of the Administration of Estates Law of Oyo State, Cap. I, Volume 1, Laws of Oyo State, that once an application for Letters of Administration of the estate of deceased person has been duly filed, any disposition of the deceased person’s estate made pending the grant of the Letters of Administration is void and of no effect. In the instant case it is common ground that Abiodun Laniyonu, himself the 3rd plaintiff, sold the land in dispute to the defendant after the plaintiffs had duly applied for letters of administration of the estate of the deceased and before the grant of the same.

This now takes me to issue 3 in this appeal which raises the question of the validity of the sale of the land in dispute to the defendant at a time when an application for Letters of Administration of the estate of the deceased was pending in the High Court of Oyo State. It therefore behoves me to construe section 10 of the Administration of Estates Law of Oyo State hereinafter called the law, which says:-

“10. Where a person dies intestate and administration is granted under this law in respect of his real and personal estate, that estate shall be deemed to have been vested, from the date of his death until administration is granted, in the Chief Judge in the same manner and to the same extent as it vests in the probate Judge of her Majesty’s High Court of Justice in England.”

On the issue I am now considering Chief Afe Babalola, S.A.N, has submitted thus in the appellants brief of argument and in oral submissions in court:

“Besides section 1(3) of the Administration of Estate Law of Oyo State provides:

‘Nothing in this law affects the administration of the estates of deceased persons by or under the authority of any customary court nor unless otherwise expressly provided, the distribution, inheritance or succession of any estate where such distribution, inheritance or succession is governed by customary law whether such estate is administered under this law or by or under the authority of a customary court.’

The general rule is that in matters affecting natives the applicable law is the customary law of the parties.

Labinjoh v. Abake (1924) 5 N.L.R.33.

It is therefore submitted that the estate of Laniyonu is subject to customary law and therefore not governed by the administration of estates law.

The net effect of this submission is that the provisions of the law do not apply to any estate subject to customary law. I have no difficulty in rejecting this submission which in my view is based on a misconception of section (3) of the law. Section 1(3) of the law can be divided into two parts. The first part relates to the administration of the estates of the deceased persons by or under the authority of any customary court. The second part relates to the distribution, inheritance or succession of any estate where such distribution or inheritance or succession is governed by customary law whether such estate is administered under the law or by or under the authority of a customary court.

The first part preserves the administration of the estate of deceased persons by or under the authority of any customary court, the provisions of the law notwithstanding. The second part is designed, unless expressly otherwise provided, to preserve the customary law of distribution, inheritance or succession of any estate where the relevant law is customary law, whether the estate is administered under the provisions of the law or by or under the authority of a customary court.

From the analysis of section 1(3) of the law, I have just made it appear to me clear that that subsection is not intended to exempt estates subject to customary law from the provisions of the law as Chief Afe Babalola, S.A.N., has submitted to us. If Chief Babalola, S.A.N., were right in his submission and since the estates of most deceased persons in Oyo State were subject to customary law, it will be difficult to conceive which estates of deceased persons would be left to which the provisions of the law would be applied, the result being that the provisions of the law will be emasculated. All I have just said is said in parenthesis only. It has not at all influenced me in the decision I have just reached. I am only expressing relief that on true and proper construction of section 1(3) of the law I cannot agree to Chief Afe Babalola’s submission with its attendant consequences.

So in my judgment the provisions of section 10 of the law apply in the case in hand. Because of section 10 of the law, the real and personal estate of the deceased, Chief J.O. Laniyonu, would be deemed to have been vested, from the date of his death until administration was granted, in the Chief Judge of Oyo State in the same manner and to the same extent as it vests in the probate Judge of Her Majesty’s High Court of Justice in England. It was during this period that Abiodun Laniyonu, the 3rd plaintiff sold the land in dispute, part of the estate of the deceased, to the defendant. I must now necessarily turn to the law in England in order to pronounce on the validity or otherwise of the sale of the land in dispute by the 3rd plaintiff to the defendant in the circumstances prevailing in this case. Williams, Mortimer and Sunnucks Executors, Administrators and Probate 16th Edition says as follows at page 430 as regards vesting in the probate Judge of the estate of a person who dies intestate:-

Where a person dies intestate after 1925, his real and personal estate, until administration granted, vest in the President of the Family Division “in the same manner and to the same extent as formerly in the case of personal estate it vested in the ordinary.” This is a matter of necessary convenience and protection and no duties attach to the Judge nor is he a trustee for any of the purposes of the Trustee Act, 1925. A notice to quit served upon the President before administration granted is effective and is not affected by the doctrine of relation back.”

The position of the 3rd plaintiff at the time he sold the land in dispute to the defendant will therefore be, as regards the estate of the deceased, J. O. Laniyonu that of an executor de son tort, a term which is explained thus in William, Mortimer and Sunnucks Executors, Administrators and Probate, 16 Edition, pages 92-93:-

“Executor de son tort – Intermeddling.

A person not lawfully appointed executor or administrator and without title to a grant may by reason of his own intrusion upon the affairs of the deceased be treated for some purposes as having assumed the executorship such an intermeddler is called a tort executor or an executor de son tort (i.e. of his own wrong). The same term is used whether the deceased died testate or intestate, for the law knows no such appellation as “administrator de son tort.”

As regards the position of an alienee from an executor de son tort the same work say at pages 101-102-

“It is laid down in coulter’s case that “all lawful acts which an executor de son tort doth are good.” Again, the statement cannot be accepted without qualification; a solitary act of wrong doing by one taking upon himself to hand over the goods of the deceased to a creditor will not give the creditor a good title to them as against the lawful representative. The true principle is stated in Thomson v. Harding, where, delivering the judgment of the Court of King’s Bench, Lord Campbell, C.J., said:

“We are by no means of opinion that, as against a person who becomes the rightful representative of a person deceased, every payment from the assets of the deceased shall be valid, if made by a person who has so intermeddled with the property as to render himself liable to be sued as executor de son tort ….. But, where the executor de son tort is really acting as executor, and the party with whom he deals has fair reason for supposing that he has authority to act as such, his acts shall bind the rightful executor, and shall alter the property.”

The rule applies only to lawful acts. The true executor is not entitled to charge the property of the deceased as security for his own debt and if an executor de son tort attempts to do the same his unlawful act will be equally ineffective.

The rule has no application to dispositions of land, where the grant must be produced … (Italics mine)

So, it appears that in England an executor de son tort cannot, because of the estate of a person who dies intestate being vested in the probate Judge pending grant of letters of administration to that estate, make any valid disposition of the deceased’s land. So, because of section 10 of the law, the 3rd plaintiff, Abiodun Laniyonu, as head of Chief J.O. Laniyonu family, could not have made a valid disposition of the land in dispute to the defendant at a time when application for a grant of letters of administration to the estate of Chief J. O. Laniyonu was pending in court.

However, the fact remains that the defendant went into possession of the land in dispute, remained there and developed it pursuant to an agreement for the sale of the land between him and the 3rd plaintiff which the defendant believed gave him a good title to the land. Earlier on in this judgment, without considering section 10 of the Administration of Estates Law of Oyo State, I have held that there was apparently a valid sale of the land in dispute to the defendant by the 3rd plaintiff. So, I am satisfied that the defendant’s belief that the sale gave him good title to the land was honestly held.

In the circumstances the defendant is entitled to raise any appropriate equitable defences for the consideration of the court and indeed he did so. This now takes me to issue (ii) in the appellant’s brief of argument which says:

“(ii) Whether the conduct of the 3rd plaintiff in joining in this action as a plaintiff to evict the defendant from the land he sold to him is not unconscionable and therefore inequitable as to vitiate this action”

The arguments of counsel for the appellant in this regard are:-

“The 3rd plaintiff had led the defendant to believe that he had right to sell the land in dispute. The defendant has acted on that belief. The 3rd plaintiff is therefore estopped from denying that he had led the defendant to believe in his authority to sell the land to him. Iga v. Amakiri (1976) 11 S.C. 1

It should be noted that judgment given by the High Court was for the plaintiffs (page 78 lines 34 to 35 and page 79 line 1 to 30). This of course means that contrary to the principle of promissory estoppel applied in Iga v. Amakiri, the 3rd plaintiff not only has led the defendant to believe in the 3rd plaintiffs right to sell the land to him on which belief the defendant has acted to his detriment, but the 3rd plaintiff has also been allowed by this action for damages for trespass to deny the belief he had created in the defendant on which the defendant acted.

As is shown in the evidence,(see paragraph 7.2 above) the defendant got on the land in dispute with the leave and licence of the 3rd plaintiff, he cannot therefore be liable in trespass.”

I have said earlier in this judgment that the 3rd plaintiff sold the land in dispute to the defendant and put him in possession. Having gone into possession of the land, what the defendant did on the land was, in his own words:-

“I then began to build houses and shops on the land. I built about five shops with two or more rooms on the land. I built a two-storey house where I live with my family on the land. I built altogether eight structures including shops and houses on the land it dispute. I completed the two storey house where I now live on the land about three years ago. I spent roughly the sum of N100,00.00 in completing the two-storey building. There was nobody disturbing (sic) me while erecting all these structures on the land.

The warning letter of the plaintiffs’ solicitor dated 30/9/82 was received by me on the very day I was having the formal opening ceremony of the two-storey houses built on the land by me.”

On this same point the P.W.1, a licenced surveyor, said:-

“The building where the defendant lives though not shown in Exhibit’ A’ is inside the land in dispute.”

P.W.2, the widow of Chief J. O. Laniyonu, deceased, said too in this regard:-

” This is the letter written by our solicitor to the defendant. The defendant has been the one on the land in dispute since we took action in this suit and up till now. My late husband did not put the defendant into possession of the land in dispute. The four of us as administrators of the estate of late Chief J.O. Laniyonu did not put the defendant into possession of the land in dispute. On realising the presence of the defendant on the land we did not consent that he be on the land. The defendant might have completed about eight buildings on the land as at 30th September, 1982, when I instructed my solicitor to write, I would not know, but I saw some structures being erected on the land at the time.” (italics mine)

I think that the following decision in Morayo v. Okiade 8 W.A.C.A. 46 at 47-48 is very much relevant to the point I am considering:-

“The general rule as to estoppel by silence or standing by was laid down in the case of Caincross v. Lorimer (1860) 3 L.T. 130. It is as follows “it is a rule of universal law that if a man” either by word or by conduct has intimated that he consents to “an act which has been done and that he will offer no opposition to it, although it could not have been lawfully done without his consent and he thereby induces others to do that from which they otherwise might have abstained he cannot question the legality of the act he had so sanctioned to the prejudice of those who have given faith to his word, or to the fair inference to be drawn from his conduct. In such cases proof of positive assent or concurrence is unnecessary; it is enough that the party had full notice of what was being done and the position of the other party is altered.

Again in Ramsden v. Dyson (1866) L.R. 1 H.L. 129 it was held that “if a stranger begins to build on land supposing it to be his own and the real owner perceiving his mistake abstains from setting him right and leaves him to persevere in his error a court of equity will not afterwards allow the real owner to assert his title to the land.”

Applying the facts in the case now under consideration to the law as I have just set it out above, it is clear that the third plaintiff led the defendant to believe the land in dispute is his. As far as he is concerned it will be most unconscionable to allow him to resile from that position after the defendant has altered his position to his detriment as a result of the conduct of the 3rd plaintiff. As regards the other three plaintiffs, having regard to the law and the facts and circumstances of this case, it is inescapable to hold that they too had notice of the presence of the defendant on the land and did nothing to warn him until he has finished his building on the land. I will discuss their case now.

As regards the doctrine of notice in the circumstances I am now considering, Williams, Mortimer and Sunnucks Executors, Administrators and Probate, 16th Edition says at page 466:-

“Doctrine of notice: The interest of a personal representative in the property of the deceased is not however so different from the interest of a beneficial owner that the normal doctrines of notice cease to apply. Thus where A, one of the executors of B, had notice of a transaction because of his partnership with one G, it was held that the executors of B were not bonafide holders for valuable consideration without notice because A could not sever his character of executor from his character as partner. The executors were therefore affected with notice. The converse is the position where an executor has notice derived from another executorship or trust.”

As regards the position, vis-a-vis the administration of the estate, where more than one executor or administrator is appointed, as it is in the case in hand, the same work says at page 466:-

“Joint representation: Where more than one executor or administrator is appointed the joint office is treated as that of an individual person. Each executor represents the estate for all purposes subject only to the statutory exceptions. They have a joint and entire interest in the estate (real and personal) of the restator or intestate, which is incapable of being divided; and in case of death such interest vests in the survivor without any new grant by the court.

Consequently, if one of two executors or administrators purports to grant or release his interest in the testator’s or intestate’s estate to the other, nothing passes; because each was possessed of the whole before. Similarly, the act of one in possessing himself of the effects is the act of the others, so as to entitle them to a joint interest in possession and a joint right of action if needed.

Statutory exceptions to this principle now apply on the sale of real estate and of stocks and shares. Actions between joint representatives are considered later.” (Italics mine)

It is because of the above legal propositions that I have come to the conclusion that the conduct of the 3rd plaintiff in the circumstances leading up to this case is a relevant fact with its attendant consequences in this case. It is also because of these same legal propositions that I am satisfied that all the plaintiffs, the administrators of the estate of the deceased, are affected by the conduct of the 3rd plaintiff in question and its attendant consequences.

Also on the point of notice it is instructive to bear in mind what was said in Ogunbambi v. Abowab 13 W.A.C.A. 222 at 225:-

“It is not enough for the appellant to show that he had no actual notice. If, as was said by Lord Cranworth in Ware v. Lord Egmount, the evidence discloses that he had knowledge of facts which “would enable the court to say that he ought to have acquired the notice with which it is sought to affect him that he could have acquired it but for his gross or culpable negligence” then he will be presumed to have had notice.”

In the case in hand, there is evidence that the defendant carried out extensive developments on the land in dispute. And the plaintiffs are on the evidence at all material times the proposed administrators of the estate of Chief J.O. Laniyonu, deceased, which included the land in dispute at Ibadan. The 1st, 2nd and 4th plaintiffs were all of them resident at Ibadan overseeing the estate. So, the evidence, in the words of Lord Cranworth in Ware v. Lord Egmount, discloses that they had knowledge of facts which would enable the court to say that they ought to have acquired the notice with which it is sought to affect them and that they could have acquired it but for their gross or culpable negligence. So they will be presumed to have had the notice. This is quite apart from what I have said earlier on that they in law will be said to be affected by the notice of the 3rd plaintiff.

I am at a loss to find any basis for the submission of counsel for the respondent Chief Ladosu Ladapo, S.A.N., in the respondent’s brief of argument and in oral arguments that nowhere in the pleadings in this case was the conduct of the 3rd plaintiff made an issue in this case. I say this because of paragraphs 3 and 4, of the statement of defence, which I have reproduced earlier on in this judgment, and paragraphs 6 and 12 of the same defence which say:-

“6. Further and with reference to paragraph 9 of the Statement of Claim it is averred that by 30th September, 1982, the defendant had already completely developed the land in dispute by erecting several permanent buildings about eight in number on the land in dispute, all to the value of about N300,000.00. The defendants last storey-building on the land in dispute was opened on the 30th September, 1982, where the defendant with his family members live ever since to the knowledge and acquiescence of this plaintiffs. This last storey building alone is to the value of well over N100,000.00.

12. The defendant will at the trial of this case also raise and rely on the equitable defence of laches, acquiescence, standing by, delay and waiver as against the plaintiffs.”

I am reinforced in this view by paragraphs 1, 2 and 3 of the plaintiffs reply to the defendants’s statement which I have earlier on reproduced in this judgment and which for emphasis I reproduce again below:-

“(1) With reference to paragraph 3 of the statement of defence the plaintiffs say that no one has been appointed head of late Chief J.O. Laniyonu’s family but that the plaintiffs are joint administrators/administratrices of the estate of Chief J.O. Laniyonu in which the land in dispute forms a part.

2. With further reference to paragraphs 3 and 6 of the statement of defence the plaintiffs never at anytime authorised any single administrator to sell the land in dispute to the defendant nor acquiesced in the illegal possession of the land in dispute by the defendant.
3. With reference to paragraph 4 of the statement of defence the plaintiffs say that the funeral and testamentary expenses of late Chief J.O. Laniyonu were borne by a relation, Chief Sobo Sowemimo, S.A.N., who was later reimbursed from estate account on the grant of letters of administration to the plaintiffs.”

The conclusion I reach therefore on issue (ii) arising for determination in this case is that because of the conduct of the 3rd plaintiff in the circumstances leading up to the present action by the plaintiffs against the defendant it will be unconscionable and inequitable to now allow the plaintiffs to assert their title to the land in dispute. I accordingly resolve issue (ii) in favour of the defendant.

So I am satisfied that the two courts below misdirected themselves, by misdirection or non-direction, on the point, which misdirection has resulted in a miscarriage of justice. So their concurrent findings of fact in favour of the plaintiff/respondent cannot be allowed to stand. See The Stool of Abinabina v. Enyimadu 12 W.A.C.A. 171.

In the result the defendant’s/appellant’s appeal is allowed by me. The judgment of the Ibadan High Court presided over by Sijuade, J., of 2/7/84 and that of the Court of Appeal, Ibadan Division of 27/1/87 are hereby set aside by me including the order as to costs. In their place, I hereby enter an order dismissing the plaintiffs/respondents’ claims against the defendant/appellant in their entirety. The defendant/appellant is entitled against the plaintiffs/respondents to his costs in this court and in the Court of Appeal and in the High Court which I assess at N500.00, N300.00 and N250.00 respectively.

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SC.168/1987