TO ASSIST AND TO DEFEND
The court considered the terms of the cession treaty of 6 August 1861 and in particular as stated in its recital the main expectation of the ‘cession’:
In order that the Queen of England may be better enabled to assist, defend and protect the inhabitants of Lagos and to put an end to the slave trade… I do hereby with the consent and advice of my council give and transfer and by these presents grant and confirm unto the Queen of Great Britain(sic), her heirs and successors forever the port and island of Lagos with all rights, profits, territories and appurtenance whatsoever thereunto belonging and as well as profits and revenue.
The court also considered the Crown grant of 15 July 1870, which purported to assign as follows:
Known all men by these presents that I, John Hawley Glover, commander in Her Majesty’s Royal Navy and Administrator of the government of the Island and territory of Lagos, having duly investigated the claims set forth by King Docemo to a piece of Land situated at Great Bridge Street Idumagbo and measuring 110 ft East Public Street with angle of 108 ft space by 335 ft to land 486 ft West in Great Bridge street 347 ft north to Marina and 270 South Public Street Do HEREBY grant and assign to the King Docemo his Heirs, executors, administrators and assigns forever the above specified piece of Land AS WITNESS my hand under the Great Seal of the Colony this day 15 day of July 1870.
The court observed that in respect of the Ordinance this law provided that:
The effect of the treaty was that while the private rights of property of inhabitants were to be fully respected, there passes to the Crown whatever rights the Oba possessed including whatever proprietary rights the Oba possessed beneficially and free from the usufructuary qualification of his title in favour of his subjects.
During argument on appeal at the West African Court of Appeal, John Idowu Conrad Taylor, counsel for the Oyekan appellants attempted to draw a distinction between previous Privy Council decided cases such as Idenu Inasa v Oshodi And Oshodi v Dakolo & Ors that held that grants made by the governor were made subject to the rights held by the natives prior to the issue of the grant and the case at hand. The distinction he alleged was that grants made to head slaves as in Oshodi cases were different from Crown grants as in the present case. Sir John Verity, (Chief Justice) speaking for the court easily disagreed with the distinction and held:
In my view therefore the grant of 1870 vested in King Docemo and his heirs, an estate subject to the interest and restriction imposed thereon by the native law and custom relating to what I have described as royal estates, that is to say subject to the right of the Oba of Lagos during his term of office to hold the same in a representative and constitutional capacity as his official residence.
This should have been the end of the matter except that Oyekan then appealed to the Judicial Committee of the Privy Council at the House of Lords in England, the final stop for appeals from the colony.
By the time the matter reached the Privy Council – hearing was fixed for between 6 May and 26 June – the issue was even further narrowed down, given that it was a last ditch effort by the losing and litigation weary Dosunmu camp.
Lord Justices of Appeal Earl Jowitt and Lord Cohen gave Lord Denning the responsibility to deliver the opinion of the council. ‘Who owns 26 Upper King Street? If the 1861 treaty gave some title to the crown and the crown gave a grant to Dosunmu – what if anything was saved by the ordinance for the family?’
Denning in his characteristic fashion cut through the issues; the recital in the ordinance was an authoritative statement by the British Crown on the effect of the treaty. Therefore the only rights of the Oba which passed under the treaty were the rights he had in his official capacity. One such right was the right to occupy the Iga as the Oba. The Oba as at the time of the treaty did not possess the Iga beneficially and free of the rights of others. Therefore the Crown could only make a grant to Dosunmu in 1852 subject to those interests and restrictions that exist under customary law. Denning declared: ‘The inhabitants of Lagos in 1870 approached land in a different fashion. No one man was entitled to own a piece of land absolutely. It belonged to the family for their use’.
Of course Denning was no newcomer to these sorts of decisions; they required the pursuit of an avowed objective and locating a legal route to serve that objective. Without doubt the objective of the British colonial government in Lagos was its peaceful occupation at the expense of the natives. However on a larger and broader view the concept of family ownership helped support consistent British policy over the years of ruling indirectly through local authority rather than individuals. There could not have been a better judge to drive this desired point home for the colonial government. By 1952, Denning was already known as a bold innovative judge who disliked the restrictions placed on the judicial system by precedent, some have described it as his ‘priority to do justice’ while others disagreed with his approach to Law. Denning concluded the decision with the following,
Whatsoever estate passed to King Dosunmu it was subject to the right of his successor to occupy the Iga. This right was an interest and restriction recognised by native law and custom. It was recognised at that time and has been recognised ever since. The grant to the King Dosunmu took effect only subject to that right. Neither he nor his successors took a title to the fee simple or to the free hold (to use English conceptions). He took an estate which was more like the estate of a corporation sole than anything else. It was vested in the holder of office for the time being. It was not an estate like that of a trustee in trust for the holder of an office. This means that the present Oba is entitled to occupy the Iga that he was entitled to enter it as he did on October 1st 1949 and that the family of Dosunmu were wrong to resist him.
And with that, the appeal was dismissed but not without having settled an important recognition of law and custom within the modern society.