E.J. JOHNSON AND Others v 1. H.I. MACAULAY 2. IBIJOKE ADU (Suit No. LD/46/61) [1961] NGHC 27 (13 November 1961)

**E.J.** **JOHNSO****N** **AN****D** **OR****S** **(PLAINTIFFS****)** **_v._** **1.** **H.I.** **M****ACAULAY** **2.** **IBIJOKE** **ADU** **(DEFENDANTS)** **(1961)** **All** **N.L.R.** **773** **Div****i****si****o****n:** High Court of Lagos **D****at****e** **o****f** **Judgment:** 13th November, 1961 **C****as****e** **Num****b****er:** Suit No. LD/46/61 **Before:** Lambo, J. Action for a Declaration of Title to land. Helena Rocha, who returned to this country from Brazil in the 19th century, brought with her four adopted children; one of whom was Quirina da Costa. When Helena Rocha died she was possessed of the property known as No. 2 Ajele Street, Lagos, and was survived by her four adopted children as her next-of-kin. Quirina da Costa had six children, including Keyinde Doherty, who, herself, had four children, including the second-named defendant. In 1923, when the property was still being used as family property, Quirina da Costa executed a Will purporting to devise her share of the property to two of her children (the first named defendant and one other) and to the second named defendant (one of the children of Keyinde Doherty). She died in the same year, but the property continued to be used as family property until 1956, when the defendants objected to any further participation by the plaintiffs in the rents collected from the property. The plaintiffs are two of the four children of the testatrix who were not named in the Will and the remaining three children of Keyinde Doherty who were also omitted. The defendants based their objection to the plaintiffs' participation in the rents upon the ground that under the Will of Quirina da Costa the plaintiffs were not entitled to the share they had hitherto been receiving. The plaintiffs contended that the purported devise of this property was void; because the property being family property and subject to Yoruba Native Law and Custom could not be devised by Quirina da Costa unless partitioned prior to her death. She therefore, had no interest disposable by Will. **_HELD_**** _:_** (1) The property of a Yoruba woman devolves on Intestacy upon her children in common under Native Law and Custom. (2) Descendants of pre-deceased children of a deceased intestate Yoruba woman share in the deceased's customary lands _per_ _s_ _tirpes._ (3) A person who holds an undivided share in lands derived by descent from a Yoruba woman under Yoruba Customary Law has no disposable interest in such lands unless and until they are partitioned. (4) A devise purporting to bequeath an undivided share in lands, which share was derived by descent under Yoruba Customary Law, is void. _D_ _eclara_ _t_ _io_ _n_ _g_ _r_ _anted_ _._ _C_ _a_ _s_ _e_ _s_ _re_ _f_ _e_ _r_ _r_ _e_ _d_ _t_ _o_ _:__-_ _Ebun_ _Ogunmefun_ _v._ _Oluremi_ _Ogunmefun_ _and_ _others,_ 6 _N.L.R._ 82. Taylor v. Williams, 12 N.L.R. 67. ACTION for a Declaration of Title to Land. _Oseni_ for the Plaintiffs. _Lardne_ _r_ for the Defendants. Lambo, J.:-Helena Rocha, a Yoruba woman who returned from Brazil to this country in the 19th century, died intestate in Lagos many years ago possessed of the property known as No. 2 Ajele Street, Lagos. She had returned to Lagos with four adopted children who survived her as her next-of-kin. They were: 1\. Rosa Munis-who died intestate in Lagos on or about 25th August, 1950 and was survived by two children. 2\. Francisca Pereira-who died 18th April, 1940 intestate and without issue. 3\. Antonio da Costa who also died in 1926 intestate and without issue. 4\. Quirina da Costa who died on or about 22nd May, 1923 leaving her surviving six children, namely: (1) Augusta Cruz (2) Keyinde Doherty (3) Idowu Macaulay (first defendant herein) (4) Tomori Fashola (5) E.J. Johnson (first plaintiff herein) (6) Mrs B. Smith (second plaintiff herein) Kehinde Doherty was survived by four children, namely: (1) Alphonso Reis (third plaintiff herein) (2) Ayoola Whesu (fourth plaintiff herein) (3) Richard Whesu (fifth plaintiff herein) (4) Miss Ibijoke Adu (second defendant herein) By her Will dated 29th April 1923, Quirina da Costa made the following devises:- Paragraphs (3) I give to my daughter Augusta Cruz now residing at 120 Bamgbose Street three-sevenths (3/7ths) of my share of all rents and profits issuing out of the family premises at Ajele Street No. 2 and known as Ile Onikunla. Paragraph 7. I give to my daughter Ibijoke now residing with her sister Francisca Pereira at Lafiaji Lagos (2/7ths) two sevenths of my share of rents profits and monies issuing out of the family property at Ajele Street above mentioned. Paragraph 9. I give to my son Idowu now residing at 120 Bamgbose Street Lagos two-sevenths (2/7ths) of my share of rents, profits and monies issuing out of the family property at Ajele Street above mentioned.... Paragraph 10. I further direct that in the event of the death of either Augusta or Idowu or Ibijoke without issue the interest of the one or those so dying in the property at Ajele Street, Lagos should accrue to the survivors or survivor. There is evidence that since the death of Quirina da Costa in 1923 the property at 2 Ajele Street was used as family property. Quirina predeceased her three other sisters-Rosa Munis who died in 1950, Francisca Pereira who died in 1940 and Antonio da Costa who died in 1926. In 1923 when Quirina da Costa made the devises in her Will the property was being jointly used by her and her three other sisters as family property. It continued to be so used after her death and up to the time that the defendants in 1956 objected to any further participation by the plaintiffs in the rents collected from tenants to whom the premises had been let. The defendants had objected to Phillip Aina Munis, son of Rosa Munis, giving the plaintiffs any further share of the rents because under the Will of their mother (Quirina da Costa) they, the plaintiffs were not so entitled. The contention of the plaintiffs is that the property was not partitioned and consequently the testatrix had no separate interest which she could devise by Will. In this connection it is pertinent to refer to the decision in _Ebun_ _Ogunmefun_ _v._ _Oluremi_ _Ogunmefun_ _and_ _others_ 10 N.L.R. at 82 where the head note reads as follows:- The grandfather of the parties died intestate leaving behind him certain real property of which he was seised in fee. Only two of his children survived with issue. One was the father of the four defendants and the other was the mother of the plaintiff and the first defendant. This woman outlived her brother, and at the time of her death was the sole surviving child of her father. On her death it was found that she had by Will bequeathed to certain of her relatives her share in her father's land. **_HELD_**** _:_** That the grandfather's fee on his death intestate become an estate under Native Customary tenure, and that therefore the testator had no separate and alienable interest which she could devise. _W_ _ebbe_ _r_ _J_. at 83 states as follows:- It has been decided in these courts _v_ _i_ _de_ _:_ _Me_ _l_ _lo_ _r_ _Br_ _o_ _th_ _e_ _r_ _s_ _L_ _im_ _i_ _te_ _d_ _v_ _._ _A_ _bu_ _d_ _u_ _A_ _y_ _en_ _i_ _,_ _r_ _e_ _So_ _n_ _n_ _i_ _A_ _ye_ _n_ _i_ _a_ _n_ _d_ _o_ _t_ _he_ _r_ _s_ , and _Caulcrick_ _v._ _Harding_ _and_ _others_ , that even where property had originally been acquired under a Conveyance according to English Law, yet after the owner's death as an intestate, the property vested in the family under native law and custom and that the members of the family were not tenants in common under English Law but held in common under Native customary tenure, which tenure does not recognise the right of an individual member of the family to alienate his interest without the consent of the family. It follows therefore that the bequest in the Will of Quirina da Costa is null and void and of no effect whatsoever-see also _Taylor_ _v._ _W_ _illiams_ Vol. 12 N.L.R. 67 where it was also held that a party cannot dispose of an undivided share in family property. Paragraph 4 of the Statement of Defence reads as follows:- The defendants aver that the said property is not family property under native Law and custom and that the plaintiffs have no right, title and or interest therein. Since there is no evidence before me that Helena Rocha died testate I am bound to hold that, being a Yoruba woman, her property devolved on intestacy as family property on the four adopted children in common under Native Customary tenure. It follows therefore that until there was partition of the property Quirina da Costa one of the said four adopted children had no disposable interest in the said property which she could alienate by Will. I therefore hold that the property is family property. For these reasons I am of opinion that this particular devise by Quirina da Costa is null and void and I make the declaration accordingly. I further declare that both the plaintiffs and the defendants who are the descendants of the said Quirina da Costa are equally entitled under native law and custom to the enjoyment of the said property at No. 2 Ajele Street, Lagos. The defendants will pay the costs of these proceedings which I fix at 70 guineas. _D_ _eclara_ _t_ _io_ _n_ _g_ _r_ _anted_ _._