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(1948) JELR 87077 (WACA)

West Africa Court of Appeal  •  18 Nov 1948  •  West Africa [For WACA cases]



Verity, C.J. This is an appeal by the plaintiff from a judgment in the Supreme Court dismissing his claim for damages for trespass upon certain land situate at Ebute Metta.

Both Parties to the action set up title, the appellant claiming under conveyance dated the 6th July, 1946, and respondent under conveyance dated 2nd March, 1946. The root of title in each case goes back, however, to the original owner of the land Chief Oloto. The appellant claims through a sale of execution the certificate of purchase being dated 23rd February, 1945, in the name of Albert Olande John , who subsequently conveyed to the appellant. The respondent claims under an allege sale to Karimu Durodola, evidenced by a receipt dated 16th August, 1928. By the conveyance of March, 1946, Durodola purported to convey to the respondent, and chief Oloto joined in the conveyance.

The learned trial Judge held that the alleged sale of 16th August, 1928 was a valid transaction according to native law and custom, conferring on the purchaser an indefeasible title to the land, and that this title being prior to the date of the execution sale, the appellant’s claim failed.

On behalf of the appellant it is submitted that the sale of 1928 was not a transaction known to native law and custom, that it constituted no more than an agreement for sale and that no legal title then passed. Before the execution of the conveyance to the respondent in March, 1946, the legal title has passed to the appellant’s predecessor in title by reason of the sale at execution so there remained no estate to be conveyed to the respondent.

The first point at issue is, therefore, whether the transaction of 1928 was one in which the respondent can claim the benefit of native law and custom by virtue of section 17 of the Supreme Court Ordinance, the first sub-section of which provides that:-

“Nothing in this Ordinance shall deprive the Supreme Court of the right to observe and enforce the observance, or shall deprive any person of the benefit of any existing native law or custom, such law or custom not being repugnant to natural justice, equity and good conscience, nor incompatible either directly or by necessary implication with any law for the time being in force”.

Sub-section (2) provides that such laws and custom shall be deemed applicable in cases where both parties are natives, or , in certain circumstances where one party only is native:

Sub –section (3) provides, however, that:-

“ No party shall be entitled to claim the benefit of any local law or custom, if it shall appear either from express contract or from the nature of the transactions out of which any suit o question may have arisen, that such party agreed that his obligations in connection with such transaction should be regulated exclusively by English Law or that such transactions are unknown to native law or custom”.

It is to be assumed that “ local law or custom” means “native law or custom” as referred to elsewhere in the section.

It is submitted on behalf of the appellant that although both parties to the transaction of 1928 were natives , the nature of the transaction is such that it is one unknown to native law and custom, and so falls within the provisions of sub-section( 3)

It is necessary, therefore, to look at the document which evidences this transaction in order to determine its nature. The document, which was prepared by the personal clerk to Chief Oloto and is signed by the chief and four others, takes the form of a receipt for the sum of fifty pounds in full payment on a piece or parcel of land as therein described. The second paragraph of the document is as follows:-

“That we shall be ready to convey unto the said purchaser the land aforesaid at any time that we may be called upon so to do and without delay”.

We can attach to this document no other meaning than that it is an agreement for sale coupled with a receipt for the purchase money and a covenant to execute a conveyance when called upon. It is not seriously contended on behalf of the respondent that a transaction of this nature is known to native law or custom, but it was submitted that the parties to the transaction being natives and illiterate were unaware of the effect of the document and intended that the sale should be in accordance with native law and custom. Not only would it be dangerous to assume, in the absence of any evidence to that effect, that because a party to a transaction is a native and illiterate he is unable to appreciate the meaning and effect of a document to which he subscribes by making his mark, but also it must be borne in mind that the conveyance of the 2nd March, 1946, executed by the two principal parties to the original transaction is further evidence of the nature of the original transaction. After reciting the sale of 1928, it acknowledges that no formal conveyance was drawn up in pursuance thereof, and Chief Oloto joins in the conveyance as “beneficial owner”.

Had the parties thereto intended that the original transaction was to be one governed by native law and custom, completed upon payment of the purchase money and delivery of possession, there would have been no necessity for Chief Oloto to join in the subsequent conveyance as a vendor, nor would he have been described as a “beneficial” owner had he divested himself of all interest in the land some sixteen years previously.

It is possible for us to brush aside the terms of these two documents. They clearly evidence a transaction the nature of which is unknown to native law and custom, which are concerned neither with covenants to convey nor with the execution of formal conveyances. The Respondent is not therefore entitled to claim the benefit of any “local law or custom” by virtue of section 17 of the Supreme Court Ordinance and the transaction must be deemed to be regulated by English law. The alleged purchase in 1928 created no more than an equitable interest in land, the legal title remaining in the vendor. By purchase in 1945 the Appellant predecessor in title, being a purchaser for value without notice, acquired the legal title. The conveyance to the respondent by Chief Oloto who was not the legal owner at the date thereof and Durodola in whom the legal title had never been vested was, therefore of no effect.

It is unnecessary to consider that would have been the position of the respondent had there been evidence that Durodola, having paid the purchase money in 1928, entered into possession at any time, save and except the inconclusive statement of the respondent that “the Vendor took me to the place”. Indeed the absence of any more satisfactory evidence of possession over so long a period would rather negative the probability of any such possession.

In our opinion, therefore, the learned judge erred in holding that “the defendant had proved a prior title to the land or portion thereof” and should have entered judgment for the plaintiff. The judgment of the lower Court is therefore set aside and judgment entered therein for the plaintiff. There is no evidence of special damage but the plaintiff is entitled to general damages which we assess at 10 pounds. He is also entitled to his costs of suit in the Court below which we fix at 20 guineas and to the costs of this appeal fixed at E35 14s. 3d.

Appeal allowed.

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