CASE SUMMARY OF:
D.W Lewis & Ors v. Bankole & Ors (1909) - SC
D.W Lewis & Ors
Bankole & Ors
LEAD JUDGEMENT DELIVERED BY:
Sir Willoughby Osborne. C.J.
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LAWYERS WHO ADVOCATED
FOR THE APPELLANT
- Williams Ajasa
FOR THE RESPONDENT
- Shyngle and Foresythe
Chief Mabinuori died in 1874, leaving a family of twelve children, the eldest of whom 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.
(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
The Court answered issue one in the affirmative. - That in accordance with the custom of the land the grandchildren have rights to the family land.
On Issue two, It also held that the family land is the property of Mabinuouri.
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The end of this brief.
It is of course well known that the Colony of Southern Nigeria is under the sovereignty of the British Crown, and the law applicable to the Colony and in force within the jurisdiction of this Court is the Common Law of England, the Doctrines of Equity, and the Statutes of General Application which were in force in England on the 1st day of January, 1900. This is enacted by the 14th section of the Supreme Court Ordinance.
Under native law the plaintiffs have joint interests on the land with the defendants. I can find no reason, based upon any law or the principle of equity, why native law should not be applicable in this cases. The defendants have the right to occupy the land in dispute subject to and in accordance with native law but they cannot alienate the land without the consent of the chief member. In my opinion the judgment of the court below should be reversed and judgment entered for the plaintiffs. - Winkfield, J
Now native customary law is always a difficult law to apply in this Court; it is unwritten, and so-called experts are usually forthcoming to bear testimony that it corresponds exactly with the views put forward by the side on whose behalf they appear. Real experts are few, and fewer are those who have made it special study, and it is not as a rule until some matter arises in which the facts are either somewhat peculiar or involved, and one of the parties is dissatisfied with the ruling of the native authorities on the facts, that the intervention of this Court is asked. - Packard, JSC
Indeed, one of the most striking features of West African native custom, to my mind, is its flexibility; it appears to have been always subject to motives of expediency, and it shows unquestionable adaptability to altered circumstances without entirely losing its individual characteristics. - Packard, JSC
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