ODUNSI LASISI AJIBOLA VS AMINU AKINDELE AJANI OJORA
In the Supreme Court of Nigeria
June 8, 1961
Case Number: : FSC. 115/1959
BRETT, JUSTICE, SUPREME COURT
TAYLOR, JUSTICE, SUPREME COURT
BAIRAMIAN, JUSTICE, SUPREME COURT
LASISI AJIBOLA ODUNSI (Chief Ojora of Lagos)for himself and on behalf of the Ojora Chieftaincy Family
AJANI OJORA AKINWUNMI
OKE ESUROMBI ARO
BURDEN OF PROOF
“The burden of proving that there may be simultaneously in one family a Chief who has been capped but has no rights of management over the family property, and another Chief with the same title who has not been capped but manages the family property, was on those who asserted it.” Per Brett F.J.
This is an appeal by the plaintiff from the decision of Bennett, J., in the High Court of Lagos, dismissing his claim for an injunction to restrain the defendants from alienating any portion of the family lands and properties without his consent and for an account.
One of the grounds of appeal filed was that the judgment was against the weight of evidence, but this ground was not argued before us and it is possible to consider the points of law involved on the basis of the facts as found by Bennett, J. except so far as native law and custom is a question of fact. The parties are all members of the Ojora family of Lagos, a land-own-ing family having the right to nominate its head to the Oba of Lagos for cap-ping as an Idej o White Cap Chief with the title of Chief Ojora. The appellant has admittedly been capped as Chief Ojora on the instructions of the Oba, and was recognised by the Governor-General in 1956 as a Chief for the pur-poses of the Lagos Local Government Law, 1953. The point at issue is whether the traditional powers of a Chief or family.head in the management of the family property are vested in him, so as to enable him to maintain this action. The respondents rest their case for disputing this on two grounds: first, they say that although the appellant has been capped the first respon-dent and not he is the person elected by the family to manage its property, and that it is possible under native law and custom to have two persons with the title of Chief Ojora, one of whom enjoys the social and other privileges which capping brings, and the other of whom has the management of the family property. Secondly, they say that in consequence of the terms of set-tlement agreed to by all parties and made an order of the court in an action between Bakare Faro, the last undisputed holder of the office of Chief Ojora, and other members of the family, the holder of the office for the time being, whoever he may be, is obliged to act in conjunction with the other members of a family council consisting of Chief Ojora and twenty others, and that since the second and third respondents are members of the family council the action cannot succeed against them.
Bennett, J. upheld the first of the respondents’ submissions. He found as a fact that the plaintiff was the choice only of a small minority of the fam-ily, and that the Oba, on the advice of the White Cap Chiefs, authorised his capping in the face of a protest by a number of the leading members of the family. He also found as a fact that the first respondent was the choice of the majority of the family, and that it was in accordance with native law and cus-tom for him to act as head of the family in managing the family property and use the title Chief Ojora. On these findings the interpretation of the settle-ment did not arise for decision, but Bennett, J. expressed the view that it had already been authoritatively interpreted in favour of the respondents’ sub-mission in the judgment of this Court in another suit between Bakare Faro, Chief Ojora, and members of the family: Appeal No. W.A.C.A. 242/1955.
In the Court below the respondents took the opportunity of canvassing the whole of the circumstances leading up to the capping of the appellant as Chief Ojora, and, having secured from the Oba the admission that he has no power to force a Chief on a family if they do not want him, what they were re-ally endeavouring to do was to discredit the appellant as Chief Ojora for any purpose. The appellant submits that once he has established that he has been capped on the authority of the Oba and recognised by the Governor General the Court is debarred from inquiring further into the matter by the Chieftaincy Disputes (Preclusion of Courts) Ordinance, 1948 (No. 30 of 1948), which was held to apply to Lagos in the judgment of this Court in Onitolo v. Bello (1958) 3 F.S.C. 53. Section 3 (a) of that Ordinance (which was repealed and replaced as far as Lagos is concerned by the Oba and Chiefs of Lagos Ordinance, 1959: No. 22 of 1959) read as follows:-
Notwithstanding anything in any written law contained whereby or whereunder jurisdiction is conferred upon a Court, whether such jurisdiction is original, appellate or by way of transfer, a Court shall not have jurisdiction to entertain any civil cause or matter instituted for –
(a) the determination of any question relating to the selection, ap-pointment, installation, deposition or abdication of a Chief.
As the case was contested in the High Court, it may have been material to consider how far this restriction on the jurisdiction of the Court extended, but in this Court the respondents have not disputed the submission made on behalf of the appellant, that the issues are –
what is the effect of capping
(ii) what is the effect of recognition by the Governor-General?
(iii) what is the effect of the settlement?
All these issues can be settled without entering into any question relating to the selection, appointment, installation, deposition or abdication of a Chief, and it is unnecessary to consider the scope of the Ordinance, or the effect of its omission from the Revised edition of the Laws of the Federation and Lagos, 1958.
I would go further and say that I do not regard it as necessary in any event to consider the effect of the settlement. If the appellant is entitled to exercise the usual powers of the Chief or family head in the management of the family property, he is also entitled to the relief he asks for, since it is not pretended that the settlement enables the respondents, or the family council less the Chief, to dispose of the family property without the consent of the Chief. If, on the other hand, the appellant is not entitled to exercise any powers of management over the family property then he cannot obtain any relief, whatever the effect of the settlement may be. If this view is correct, the only question which the Court has to decide is whether the appellant has the usual powers of the Chief or family head.
As regards the effect of capping, the appellant relies on the judgment of Petrides, J., in Akodu v. Omodiji (1927) 8 N.L.R. 55, and Graham Paul, J., in Aiyedun v. Oresanya (1938) 14 N.L.R. 116, as showing the powers posses-sed by a White Cap Chief as such, and as explaining the circumstances in which, if for any reason no member of the family has been capped as a White Cap Chief, there may be a head of the family exercising powers of manage-ment over the family property. Native law and custom being a question of fact in an action in the High Court, it is true that the findings in these cases are not binding as precedents, and it is also true, as has been pointed out by Mr Oseni on behalf of the respondents, that however learned and experienced the Judges whose judgments are relied on may have been, they could only act on the evidence which the parties in the cases concerned chose to call before them. Nevertheless, both on the authority of those decisions, and as a matter of probability I would say that the burden of proving that there may be simultaneously in one family a Chief who has been capped but has no rights of management over the family property, and another Chief with the same title who has not been capped but manages the family property, was on those who asserted it, and I am unable to agree with Bennett, J., that the respondents discharged that burden. It is one thing to show that a person may have the powers of management of a family head without having been cap-ped, and quite another thing to show that capping confers nothing but social status.
The respondents have been able to point to no precedent for the state of affairs which they contend is permitted by native law and custom, al-though family disagreements of this kind have not been uncommon, and the novelty of the submission tells strongly against it. I have already said that the respondents introduced a number of matters which were not strictly relev-ant, and although Bennett, J., did his best to define the issues and restrict the parties to them I think, with respect, that after a trial in which the evidence took up fifteen days, spread over four and a half months, and addresses of counsel six days, he may have allowed his feeling that appellant had no right to have been capped to influence his decision as to the effect of capping.
If it is correct that the other White Cap Chiefs were over-hasty in advis-ing the Oba to approve the capping of the appellant, that is not a matter which the Court can correct, and for the reasons which I have given I am not satisfied that it alters the effect of capping. Mr Oseni drew attention to a pas-sage in the judgment in Aiyedun v. Oresanya where reference was made to natural justice, but I do not think the learned Judge was using the expression in its technical sense, and as far as what I may call public policy is concerned it is just as important that members of the public should know that they may safely deal with a White Cap Chief as the person empowered, subject to the usual consents, to dispose of the family land, as that the interests of the fam-ily should be secured.
The Courts have always been ready to preserve the legitimate interests of land-owing families, as many reported cases show, and I should regret it if it were necessary now to introduce a new ground of uncertainty into a matter in which sufficient