Henry I. Olowu V. Gertrude Desalu (1955)

LawGlobal Hub Judgment Report – West African Court of Appeal

Native Law and Custom—Family Property—Mortgage of share without concurrence of members.
Evidence—Copy of notice objected to as evidence but admittedfor identification—Service of original not proved.
Equity—Acquiescence—Offer to pay mortgage debt whether acquiescence in mortgage—Purchaser buying family property in spite of warning.

Facts

The appellant bought at a sale, in spite of a warning notice by the respondent, an undivided share in family property which her brother had mortgaged; he applied to have his purchase registered, to which the respondent objected.

At the hearing before the Registrar the appellant, who had not given notice to the
respondent to produce the original, tendered a copy of what purported to be a notice to the respondent from the mortgagees informing her of her brother’s intention to mortgage his share; her counsel objected to the copy being admitted in evidence but said that he would not object to the copy being marked for identification; the Registrar admitted the copy in evidence, and decided that the respondent was estopped by that notice from alleging that the property was family property and that her brother had no right to mortgage an undivided share in what was family property.

But there was no evidence of posting or delivery of the original, and the respondent denied receiving it.

On appeal to the Supreme Court the respondent won and the appellant appealed. The arguments turned on whether the respondent’s brother could have mortgaged an undivided share, and on whether the respondent was estopped from objecting on account of the alleged notice or of her having offered to pay her brother’s mortgage debt upon transfer of the mortgage to a nominee of hers— a proposal which failed as her brother would not agree to it.

Held

The property had devolved upon the respondent and her brother as family property under customary law upon the death of their mother, and the brother had no right to mortgage his share without her concurrence.

Held also: The respondent’s counsel had objected to the admission in evidence of a copy of an alleged notice to her; his not objecting to the copy being marked for identification implied that he would insist upon proof that the original had been delivered to her; but no such proof was given; and the respondent denied receiving the original; therefore the inference that she had received it could not have been drawn.

Held further: (1) The respondent’s offer to pay the mortgage debt was equally consistent with a desire on her part to purchase peace without admitting or acquiescing in her brother’s act of mortgage.

(2) The appellant was not led by the respondent’s conduct to alter his position, for he had read her warning notice prior to the sale

Appeal dismissed.