➥ CASE SUMMARY OF:
Chief Saliu Agara & Ors. v. Chief Yinusa Agunbiade & Ors. (2012) – CA
by PipAr Chima
Court of Appeal – CA/L/304/2009
➥ JUDGEMENT DELIVERED ON:
On Wednesday, the 22nd day of February, 2012
➥ AREA(S) OF LAW
Removal of family head;
➥ NOTABLE DICTA
⦿ CUSTOMARY LAW IS LAW, AND NOT ARBITRARILY
The importance of customary law vis-a-vis Customary Courts to adjudication process or administration of justice system in Nigeria cannot be over-emphasized. The sui generis nature of Customary Courts vis-a-vis the practice and procedure thereof have also been alluded to above. Regrettably, ever since the emergence of the sociological ideas of Roscoe Pound, with particular regard to the modern concept of law in a developing society, the most unreasonable and highly misplaced criticism about African law (customary and nature is that it is merely custom, and not law. However, most cherishingly, concerted efforts have so far been made to sweep away the cobwebs, the myths, prejudices, and philosophical doubts of those who hove all along denied that there was any such thing as African law, customary or native low. Professor Allott, formerly of the School of Oriental And African Studies, University of London, was most pertinent when he wrote, inter alia, thus: ‘African law (customary law) is, in short, reasoned, it is not arbitrary savage or non-existent. The difference between African and Western law is one of degree, not of kind.’ – I.M.M. Saulawa JCA.
⦿ WAYS A PERSON MAY BE A FAMILY HEAD UNDER YORUBA CUSTOM
It is indeed a wise and well established principle, that there are three ways by which a person can be validly recognized as a head of a family under Yoruba customary law. (i) by operation of law; (ii) by election by members of the family concerned; and (iii) by direct appointment by the founder of the family. Invariably, the most senior member of a family is the head of each branch of the family thereof. In most cases, he is the eldest child of each wife. – I.M.M. Saulawa JCA.
⦿ SOME PRINCIPLES OF SUCCESSION UNDER YORUBA CUSTOM
The principle regarding succession under Yoruba native law and custom has long been settled in a plethora of authorities. In LEWIS VS. BANKOLE (supra), most especially, the findings of the privy council are to the effect that- (i) when the founder of a family dies, the eldest son called the “Dawodu” succeeds to the headship of the family with all that that implies, including residence and the given of orders in his father’s house or compound; (ii) on the death of the eldest surviving son, the next Eldest surviving child of the founder, whether male or female, is the proper person to succeed as head of the family; (iii) if there is going to be any important dealing with family property all branches of the family must be consulted, and representation on the family council is also per strip according as there are wives with children. (iv) the division is into equal shares between the respective branches; regard being had to any property already received by any of the founder’s children during his lifetime; (v) the founder’s grandchildren only succeed to such Rights as their immediate parents had in the family property; s (vi) the founder’s compound or house is usually regarded as the “family house’ which must be preserved for posterity. – I.M.M. Saulawa JCA.
⦿ WHERE FAMILY HEAD MISAPPROPRIATES PROPERTY, ONLY REMEDY IS TO REMOVE HIM
There’s no doubt, that the principle has been settled, to the effect that where the family finds the head thereof misappropriating the family possession or property and squandering them, the only remedy is to remove him and appoint another fit and trust worthy person acceptable to the family’. see NELSON VS. NELSON (supra) at 216 per Mitchelin J. See also AKANDE VS. AKANDE (1967) 1 ALL NLR 102; EYNN VS. GARDNER (1953) 14 WACA 260. – I.M.M. Saulawa JCA.
Chief Saliu Agara & Ors.
Chief Yinusa Agunbiade & Ors.
➥ LEAD JUDGEMENT DELIVERED BY:
I.M.M. Saulawa, JCA.
⦿ FOR THE APPELLANT
Gbenga Ojo Esq. and Joe Opute Esq.
⦿ FOR THE RESPONDENT
Shakiru Omolaja Esq. and Bolatito Babasola.
➥ CASE HISTORY
On November 18, 2005 the Respondents filed both a writ of summons (registered as Suit No. IK/73/05) and a statement of claim in the court below seeking various reliefs against the Appellants.
By the statement of claim thereof, the relief sought by the Respondents’ against the Appellants are to the following effects, inter alia: (A) A declaration that the installation of the 2nd Defendant as the Head of Olofin Chieftaincy family, by the 1st Defendant, with the connivance of the 3rd, 4th, 5th and 6th Defendants is null and void and of no effect whatsoever’.
The present appeal is against the judgment of the Lagos State High Court, Ikeja Judicial Division which was delivered on January 26, 2009 by the Hon. Justice H.A.O. Abiru. By the said judgment, the lower court granted all the reliefs sought by the Respondents in Suit No. IKD/73/05, and accordingly dismissed the Appellants’ counter-claim in the entirety thereof.
➥ ISSUE(S) & RESOLUTION
I. Whether the removal of the 1st Respondent as the head of Ofin Ile chieftaincy family while the 1st Respondent was still alive is valid under Yoruba native law and custom, applicable to Ofin Ile.
RULING: IN RESPONDENT’S FAVOUR.
A. As painstakingly alluded to above, it is so obvious that the Appellants have failed to discharge their onerous obligation of proving before the lower court that there was any valid charge or allegation of corruption, mismanagement or misappropriation against the 1st Respondent, to justify his removal as the head of the family in question. Thus, the answers to both issues 1 & 2 are in the negative, they are accordingly hereby resolved against the Appellants’.
II. Whether the 1st Respondent as the head of Ofin Ile Chieftaincy family has satisfactorily rendered account of proceeds of income and expenditure of monies realized from the sale of family land, or whether the Respondents are estopped from seeking account of the proceedings from the 1st Respondent as head of their family.
RULING: IN RESPONDENT’S FAVOUR.
A. I think I would rather uphold the Respondents’ learned counsel’s contention, to the effect that the legal remedy available to the Appellants to get the Respondents to render accounts to the family was to institute an action to render the said accounts, or to seek to declare void all sales or transactions regarding, the family land by the head of the family without requisite authority. This, I believe is the most civilized and legal option which the Appellants ought to have taken advantage of, rather than the criminal and most uncivilized private self help they had shamelessly embarked upon. Undoubtedly, as rightly postulated by the Respondents’ learned counsel in the brief thereof, the procedure of seeking to compel a head of a family to give an account of the family property has long been settled by a plethora of authorities. See EKPENDU VS. ERIKA (1959) 4 FSC 79: ESAN VS. FARO 12 WACA 135: ALLI VS. IKUSEBIALA (1985) 1 NWLR (Pt. 4) 630: ADEJUMO VS. AYANTEGBE (1989) 3 NWLR (Pt. 110) 417, et al.
B. It is evident from the record of appeal, that the lower court made some specific findings against the Appellants regarding their claim for accounts of the family property or fund. The court’s findings were predicated upon the strength of the unchallenged evidence of the Respondents that the 1st and 4th Appellants were members of the land committee under the chair of the 1st Respondent. It was indeed in evidence, that 1st and 4th Appellants executed land sale agreements in conjunction with the 1st and 2nd Respondents, as duly established by exhibits D3 & D9. Most ironically, the Appellants have come to equity with soiled hands. Yet, it is a settled fundamental principle, that he who comes to equity, must come with clean hands.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)