3PLR – MARTIN LAWANI KOSOKO V. MOMODU OTENIYA KOSOKO & OTHERS

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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MARTIN LAWANI KOSOKO

V.

MOMODU OTENIYA KOSOKO & OTHERS

DIVISIONAL COURT, COLONY AND PROTECTORATE, LAGOS

9TH APRIL, 1937

3PLR/1937/1 (DC-CPL)

 

CITATIONS

 

 

BEFORE: CAREY, J.

 

REPRESENTATION

  1. Johnson for plaintiff.

Hagley for defendants.

 

MAIN ISSUES

REAL ESTATE/LAND LAW:- Family property- Claim by individual member of family against the representatives of family for an account of rents and mesne profits of the family property – How treated

ESTATE ADMINISTRATION/MANAGEMENT:- Family property –  Whether a member has right to demand for account of rent after a lengthy period of time away – Relevant considerations

CUSTOMARY LAW:- Family estate – Right of single member to demand from Head of family account for rent without support of the family– How treated

 

 

 

MAIN JUDGMENT

The judgment of the Divisional Court (Carey, J.) was delivered at Lagos on 9th April, 1937.

 

CAREY, J.

The plaintiff’s claim in for an account of the rents and mesne profits of the family property of the late Kosoko of Lagos under the control and management of the defendants as Trustees for all the members of the Kosoko family of Lagos.

 

And payment over to the plaintiff of what is found due upon the taking of such account.

 

Oba Kosoko died many years ago. The plaintiff gives the year of his death as being 1872. Anyhow it was over forty years ago when certain ceremonies in relation to his death were performed. This was the occasion of the last visit to Lagos of Lawani Kosoko, the plaintiff’s father, who had settled in Porto Novo some years earlier.

 

With regard to his claim for an account of the rents and mesne profits of all the family property of the late Oba Kosoko, this presumably is for the period from the Oba’s death until the date of the writ, the 11th January, 1937. Apart from any question of plaintiff’s right to claim such an account, the futility of ordering such is obvious. For over thirty years the plaintiff’s father never received anything from Oba Kosoko’s property, but instead sent money to the family, and, since the death of plaintiff’s father in 1926, the plaintiff made no claim until within the last six months. It is proved also that no accounts were kept until quite recently. It was not customary to keep accounts of family property. It would be ridiculous for this Court to make an order which it is impossible for the defendants to comply with.

 

Undoubtedly Lawani Kosoko as a son of Oba Kosoko was entitled to share in his father’s estate, but having apparently with deliberation elected to forego the enforcement of his right up to the time of his death I cannot now see bow his son can come forward after the lapse of another eleven years to assert a claim which his father was aware of and did not choose to make.

 

I accept as Mr. Taylor suggested that the proper course was for the plaintiff as a direct descendant of Oba Kosoko to approach the Head of the family for a share of the family funds or property.

 

In my view where a member of the family goes away from his country and dissociates himself from the family, and its affairs, it would be most unreasonable if he or his representative were to return after the lapse of about fifty years and demand as of right an account for that period. Furthermore I am not satisfied that the plaintiff, who apparently is not supported by his brothers and sisters, has any right in the circumstances disclosed, as a solitary individual to demand from the Head of a large family who has the support of the family behind him, except for one other member, an account of the family’s dealings with the family property, unless he can point to a definite delinquency amounting in effect to a breach of trust by the family representatives. To put it shortly, where a member of a family leaves his country and deliberately absents himself from the family meetings over a lengthy period of years, he cannot on his return demand an account for that period from the family for their concerted actions.

 

The plaintiff’s claim must be dismissed with costs.

 

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