ADEYINKA OYEKAN V. MUSENDIK ADELE

Verity. C.J., Nigeria. In this case the appellants sought a declaration of title, and order for possession and damages for trespass in respect of premises at 26 Upper King Street. Lagos, known as the Iga Idunganran.

They based their claim upon averments that the premises in question are the property of the descendants of King Docemo of Lagos of whose family the appellants are members and rely upon the Treaty of 1861 entered into between King Docemo and the representatives of Her late Majesty Queen Victoria whereby King Docemo transferred to Her Majesty-

“the port and island of Lagos with all the rights, profits territories and appurtenances whatsoever thereunto belonging and as well the profits and revenue as the direct full and absolute dominion and sovereignty of the said port, island and premises with all the royalties thereof” .

They rely also upon a Crown Grant made subsequently thereto to King Docemo, his heirs, executors, administrators and assigns for ever of the said premises. The respondent, who is the duly recognised Oba of Lagos, although he was office of Oba of Lagos.

sued personally and not in that capacity, contended that the premises are not the absolute property of the plaintiffs or of the descendants of King Docemo but are the traditional residence of the Oba of Lagos, that the appellants are ^{*Page 211}not therefore entitled to a declaration of title, nor to possession of the premises nor can they recover damages as against the respondent for his entry thereupon in exercise of his right to occupation as Oba of Lagos.

A great deal of evidence was considered by the learned trial Judge both oral and documentary and in a careful and exhaustive judgment he came to the conclusion that the premises were in fact the traditional residence of the Obas or Kings of Lagos, that the Crown Grant of 1870 is not to be construed as an absolute grant to King Docemo and his heirs but in trust to the use of the Obas of Lagos; that the appellants were not therefore entitled to the declaration which they sought, nor to possession, nor to damages for the entry of the respondent thereupon.

I do not propose in this judgment to narrate or attempt to analyse the vast body of evidence direct, traditional or historical adduced at the trial for although one of the grounds of this appeal is that the judgment is against the weight of the evidence counsel for the appellant at the hearing of the appeal took but little exception to the learned Judge’s findings of fact but rested his argument almost entirely upon those parts of the judgment which relate to the inferences drawn by the learned Judge from the facts found by him and the conclusions reached by him as to the legal consequences flowing therefrom. I propose therefore to consider the case upon the facts found by the learned trial Judge from which upon the evidence I see no reason to differ.

The history of the premises in question in so far as is essential to this case has been found by the Court below to be as follows (I do not quote the precise words of the judgment) ;-

The Iga Idunganran originated in a gift of land by Chief Aromire to King Ado, who was the Oba of Lagos between 1630 and 1669. It ,vas not, however, till the time of King Gabaru (1669-1704) that buildings were erected on the land and occupied by the Oba. The buildings were completed by King Akisemoyin (1704-1749) save for one erected by King Akitoye (1841-45). From the time of King Gabaru the Iga has been the residence of the Obas of Lagos, save as it would appear for a brief period (1931-32) when Eleko Eshugbayi after a period of exile was permitted by the Government to reside in the Iga although not recognised as “the head of the House of Ado (sometimes known as the House of Docenio ,or Docemo-Oyekan) “or “as holding any position which might entitle him to official recognition from the Government” .

The position would appear to be, therefore, that in 1861 at the date of the Treaty of Cession the premises in question had for a period of over a century been d as the residence of the Oba of Lagos, who was, as indeed each has been to this day, a descendant of King Ado. King Docemo remained in occupation of the Iga, notwithstanding the Treaty, until 1870 when the Crown Grant to which I have referred purported to grant the premises to him and his heirs, executors, administrators and assigns for ever. Thereafter his successors as Oba have occupied the Iga in due course and save for a short period (1928-31 or perhaps 1932) the Oba has been a descendant of King Docemo until the time of the respondent who was recognised as Oba in 1949. Both Sanusi Olusi who was recognised as Oba in 1928 and the respondent are descendants of King Ado but Not of King Docemo.

Upon these facts the learned trial Judge reached the conclusion that the premises in dispute are not the absolute property of King Docemo’s descendants and that the proper construction to be placed upon the Crown Grant of 1870 is that the land was given to King Docemo as trustee for his successors in the office of Oba of Lagos.

Mr. Taylor, on behalf of the appellants, contended that in reaching this conclusion the learned Judge erred in that he failed to apply the provisions of sections 3 and 5 of the Crown Grants (Township of Lagos) Ordinance (Cap. 44)^{*Page 212}and in the first place therefore I would consider the former of these sections by which it is enacted that all grants of the category of which that in question is admittedly one “shall be deem to have been validly made and” which proceeds.-

“each of such grants shall be deemed to have vested in the grantee an estate free from competing interests and restrictions save only such interests and restrictions recognised by native law and custom as at the date of the grant affected such estate”.

The purpose of this enactment as disclosed by the preamble thereto is that “doubts should be removed and that the effect of all the grants of land made by or on behalf of the Crown should be declared and confirmed”.

There can be no question that in the course of time doubts had arisen as to the effect of these Crown Grants which by their terms purported to vest in the grantees an estate which in England would amount to the fee simple or as it is described in the previous paragraph of the preamble “an absolute title to the land”. It hardly seems open to question that the view was widely held that appeal which referred to section 5 of Cap. 44 and p this was indeed the effect of such grants and that the right of the Crown to make grants of this nature rested upon the terms of the Treaty of Cession. A contrary view was also held, however, and it would appear that this prevailed.

In Amodu Tijani v. Secretary of Southern Nigeria (1) the Judicial Committee of the Privy Council observed:- “No doubt there was a cession to the British Crown, along with the Sovereignty, of the radical or ultimate title to the land in the new Colony but this cession appears to have been made on the footing that the rights of property of the inhabitants were to be fully respected. Where the cession passed any proprietary rights they were rights which the ceding King possessed beneficially and free from the usufructuary qualification of his title in favour of his subjects”.

Further in Idenft Inasa v. Oshodi (2) Lord Blanesburgh in delivering the judgment of the Board observed in relation to the issue of grants by the Governor of Lagos:- It cannot be doubted that this act of Government was a source of misunderstanding as each grant, on its face, purported to be a disposition in absolute terms in favour of the grantee. But it was at an early stage settled although apparently not always accepted, that these grants were only in trust and that they left the interest in the properties, whether those of the occupiers or those of the Chief, exactly where they had been.”

Again in Oshodi v. Dakolo and Others (3), Lord Dunedm said in reference to similar grants:-

“It has, however, been decided, and their Lordships have no intention of interfering with this decision, that grants given in such circumstances were really only grants in trust and indeed left the property exactly as it was.”

It appears to me to be clear from these decisions that the position immediately prior to the enactment of the Crown Grants Ordinance (Cap. 44) was that while the grants themselves purported to vest in the grantee an absolute title the Courts had held that in fact each was no more than a grant in trust leaving what I may describe as the beneficial or usufructuary interest as it had been before issue of the grant.

Mr. Taylor sought to draw a distinction between grants made to Head Slaves, to which the Oshodi cases specifically referred, and Crown Grants such as the present: He referred in support of his argument to the Epetedo Lands Ordinance (Cap. 60) in which provisions different from those in Cap. 44, were enacted in ^{*Page 213}relation to grants made by the Crown of certain lands in a district of Lagos known as Epetedo. While in my view the incidence and occasion of those grants may differ from such grants as are dealt with in the Crown Grants Ordinance (Cap. 44), I am unable to perceive any difference in the principle whereby grants purporting to convey an absolute title are subjected by the Ordinance to limitations not contained in the grant, and in my view the reasons for the decisions of the Courts in the Oshodi cases are of equal application to all grants purported to have been made by the Crown of lands in Lagos in pursuance of or in right of the terms of the Treaty of Cession. I do not consider that it is possible to draw any vital distinction in principle nor is it apparent, if it were attempted to draw such a distinction, what construction could be placed upon the last sentence of section 3 of Cap. 44, which will fall for consideration at a later stage.

It may be convenient at this point to deal briefly with a further submission of counsel before passing to consider what I think to be the major argument for the appellant, Counsel contended, in relation to those parts of the grounds of appeal which referred to section 5 of Cap. 44 and paragraph 6 of the statement of claim, that if by section 3 any restrictions were imposed upon the terms of the grant to King Docemo the land had been freed from any such restriction by the operation of section 5. It appeared from his argument that counsel contended that even if the grant to King Docemo were held to be subject to a right of occupation vested in the Oba of Lagos while holding that office to right had been extinguished by the permission granted to Eleko Eshugbayi to occupy the Iga at a time when he was not recognised by the Government as Oba. With this contention I find myself also unable to agree, for it does not appear to me that it can be justifiably concluded that the pre-existing rights of the Obas of Lagos if such rights continued to exist after the Treaty of 1861 and the Grant of 1870) can have been extinguished by the act of the Government in permitting one who was no longer recognised as Oba to occupy the traditional residence.

I do not think, however, that Mr. Taylor laid great stress upon this contention and his main argument I understood to be that by the Treaty of 1861 all rights of the Oba of Lagos were transferred to the Crown and that the grant to King Docemo in 1870 was therefore at the date of the grant subject to no such "interests and restrictions recognised by native law and custom as are preserved by section 3 of the Crown Grants Ordinance (Cap. 44).

In order to determine whether this contention is well founded it is necessary to consider what were the rights vested in King Docemo as Oba of Lagos in relation to those premises at the date of the Treaty. The learned trial Judge found, and I think rightly upon the evidence before him, that the land upon which the Iga was subsequently built, was as long ago as the middle of the seventeenth century granted to King Ado by Chief Aromire. The nature of the estate or interest then created is to be determined by reference to native law and custom. When one considers the user of this land during the past three hundred years it appears to be beyond doubt that it falls within that class of Estates which has been variously described as “Stool land” (a term more commonly used in the Gold Coast than in Nigeria) or “royal estates” and the nature of the interest vested in the King or Oba has been the subject of judicial pronouncement. In Quarm v. Yankah II (4) Deane, C.J., referring to Stool lands the Gold Coast said:- “the conception of the Stool that is and has always been accepted in the courts of this Colony is that it is an entity which never dies, a corporation sole, and while the occupants of the Stool may come and go, the Stool goes on for ever”. From this it may be deduced that land vested in the ruler as such is not vested him beneficially or as absolute owner but solely in him in his office, and indeed, prior to Sir George Deane’s observation to which I have referred, Lord^{*Page 214}Haldane in Amodu Tijani v. Secretary of Southern Nigeria (1921) 2 A,C. 399 at p, 410, observed:-

“Their Lordships doubt whether any really definite distinction is connoted by the expression ‘stool lands’. It probably means little more than lands which the Chief holds in his representative or constitutional capacity as distinguished from land which he and his own family hold individually.

It would appear therefore that the estate or interest vested in the ruler in royal estates or stool land is to be distinguished on the one hand from land vested in him beneficially as absolute owner alienable by him at will and on the other hand land vested in himself and his family beneficially and of which the Chief or head of the family is sometimes referred to as a “ trustee”. This then appear to have been the nature of the estate or interest vested in the Oba of Lagos the date of the Treaty of 1861, and the effect of the Treaty upon land so he thus falls to be considered. The terms of the Treaty are such that, as I have already said, diverse views have been held as to their effect in relation to land but it is not open to question that the true effect of the Treaty was as laid down in Amodu Tijani v, Secretary of Southern ,Nigeria (1) :-.

When the cession passed any proprietary rights they were rights which the ceding King possessed beneficially and free from the usufructuary qualification of his title in favour of his subjects .”

The passing of the Crown Grants Ordinance (Cap. 44) in 1947 has in my view left unchanged and has indeed confirmed the interpretation placed upon the Treaty by the Courts. Indeed it may be gathered from the terms of the second paragraph of the preamble to that Statute that the legislature intended specifically to confirm the view of the Judicial Committee of the Privy Council to which I have last referred for there are used the precise words of Lord Haldane in delivering the Judgment of the Boar.

It is to be observed, moreover, that the intention of the legislature was, in the words of the last paragraph of the preamble, that the effect and not the terms of the grants to which it applies was to be declared and confirmed. This intention has been carried out by section 3 of the Ordinance by which each grant shall be deemed to vest an estate free from competing interests and restrictions save those recognised by native law and custom which affected the estate at the date of the grant.

I would advert therefore to the effect of the Treaty upon the premises in question in this action, and.1 think the matter to be decided is whether or not the interest of the Oba of Lagos as such was transferred to the Crown by the Treaty.

In view of the decision in Amodu Tijanis case (1) and of the confirmatory effect of the Ordinance, this question may be stated alternatively: were the rights of the Oba in these premises proprietory rights possessed by him beneficially and free from the usufructuary qualification of his title in favour of his subjects?

If so then such rights were transferred to the Crown but if not then the estate granted to King Docemo and his heirs remains subject to the pre-existing right of occupation by the Oba recognised by native law and custom, for such right continued to the date of the grant not having been extinguished or transferred by the terms of the Treaty.

The answer to this question will I think determine the present issue and will depend upon whether or not a “royal estate” in the sense in which I have used it earlier in this judgment, falls within the Treaty, for I have no doubt that the whole history of the premises in question from the time of King Ado to the date of the Treaty and, indeed, until the death of the Oba Falolu can lead to no other conclusion than that the Iga and the land whereon it is erected were intended to be vested and were indeed vested in King Ado and his successors in a “representative or constitutional capacity”.^{*Page 215}The sole question is therefore whether land so vested falls within the Treaty, the terms of which are to be interpreted in accordance with judicial decision. I do not consider that it can so be held, for as I have said earlier whatever may be the precise extent or limitation of such an estate it is to be distinguished both from absolute beneficial ownership and from what is known as “family land” held by a Chief in trust for himself and his family. It is I think clear that at no time prior to the date of the Treaty were the premises held by the Oba beneficially, an estate which connotes absolute ownership and the right of alienation, nor I think can it be said that it was held by him free from the usufructuary qualification of his title in favour of his subjects, for while the usufruct may not have begin of the nature to which the term is ordinarily applied still his holding in a representative capacity as Oba implies a limitation or restriction of his user in favour of the state which he represents and which is in effect the aggregate of his subjects. Be "this last proposition as it may, it is to be observed that the phrase used by Lord Haldane and repeated in the preamble to the Ordinance is “beneficially and free from the usufructuary qualification” and, therefore, whatever may be the interpretation to be placed upon the term “ usufructuary qualification” if he did riot hold the land beneficially it did not pass to the Crown.

In my view, therefore, the grant of 1870 vested in King Docemo and his heirs an estate subject to the interest and restriction imposed thereon by the native law and custom relating to what I have described as “ royal estates” that is to say subject to the right of the Oba of Lagos during his term of office to hold the same in a representative and constitutional capacity as his official residence.

For these reasons I think the learned judge was right when he held that the appellants were not entitled to a declaration of title in the sense in which they claimed under the Grant of 1870 on behalf of themselves and other members of the House of Docemo as absolute owners free from competing interests and restrictions, nor entitled to possession as against the respondent nor to damages for trespass in respect of his entry thereupon in exercise of his right of occupation as duly appointed and recognised Oba of Lagos.

I would therefore dismiss the appeal with costs.

Foster-Sutton, P. I have had an opportunity of reading my brother the Chief Justice’s judgment, I entirely agree with it and have nothing to add.

Coussey, I.A. I concur. I have nothing to add.

Appeal dismissed.