Fact of the case
Chief Mabinuori died in 1874, leaving a family of twelve children, the eldest of who was a daughter. He was possessed of three piece of land: on one, the family compound, he lived with his wives and some of his children and domestics; on another he built houses for his eldest daughter and two of his sons; whilst the third was dedicated to the worship of the family fetish. In 1905 an action was brought by certain of Mabinuori’s grandchildren, including the issue of the children for whom separate houses were built, against certain of the occupants of the family compound who were daughters of Mabinuori and children of a deceased younger son.
Issues
The claim was for a declaration
(1) that the plaintiffs were entitled, as grandchildren of Mabinuori, in conjunction with the defendants, to the family compound, and
(2) that the family compound was the family property of Mabinuori deceased.
Ratio Decidendi
Application of customary law
It is clear therefore that this is a case in which the Court is entitled if not actually directed to observe and enforce the observance of native law and custom and it must not be forgotten that the native law and custom which the Court is empowered or directed to observe must have two essential elements: it must be existing native law or custom and not the native law or custom of ancient times, and it must not be repugnant to natural justice, equity or good conscience.
The trial court held in favor of the defendants. The plaintiff upon their dissatisfaction with the judgement, appealed to the court of appeal. The court of appeal also refused to apply native law on the ground that it is inequitable and held in favor of the defendants. On further appeal to the Supreme Court, the court held in favor of the plaintiff/respondent.
By: RESOLUTION LAW FIRM
info@resolutionlawng.com
