876 THE WEEKLY LAW EEPOETS JULY 19, 1957

1957 him. On t h e other hand education in a particular aptitude is

CHARTERED primarily designed for t h e acquisition of some professional advan-
INSURANCE tage. This distinction is made manifest in t h e passage from t h e
INSTITUTE
o. speech of Lord Macnaghten in Inland Revenue Commissioners v .
LONDON Forrest2 which m y Lord has cited. I think it follows t h a t if t h e
CORPORATION.
true view of t h e objects and work of this institute is t h a t , although
Devlin J. it is engaged mainly in tuition and examination activities, those
tuition and examination activities are designed for t h e benefit of
the members of a particular profession in order to enable t h e m to
practise their profession to greater advantage, then t h e institute
is not concerned with t h e advancement of education.
I t u r n again to t h e facts in t h e case. The conclusion which
quarter sessions h a s reached, having set out all t h e evidence, is
t h a t t h e main object of t h e tuition and examination activities is
t h a t set out as t h e first object in t h e charter. There appears to m e
to be ample evidence to justify t h a t conclusion. I t seems to m e to
be plain when t h e first object of t h e charter is read t h a t it falls
upon t h a t side of t h e distinction drawn by Lord M a c n a g h t e n 2
which is concerned with t h e benefit of t h e members of t h e profes-
sion themselves in order to enable t h e m to practise their profession
to greater advantage. For t h a t reason I think t h a t t h e conclu-
sion of quarter sessions was right, and t h e appeal should be
dismissed.
Appeal dismissed.
Leave to appeal.

Solicitors:—Linklaters & Paines; Comptroller & Solicitor,

Corporation of London.
E. M. W .

[PRIVY COUNCIL.]

J. 0.+ * A D E Y I N K A OYEKAN AND OTHERS . . APPELLANTS;

AND
1957
June 26. MUSENDIKU, ADELE . . . . . . EESPONDENT.

ON APPEAL FROM THE W E S T . AFRICAN COURT OF APPEAL

(LAGOS JUDICIAL DIVISION).

West Africa (Nigeria)—Land—Treaty of cession—Lagos—Grant of Iga

Idunganran (royal palace) to Oba Docemo, his heirs, etc., for ever
—Nature of estate granted—English conceptions of absolute title
inapplicable—Iga the official residence of reigning Oba—Grant
subject to right of succeeding Oba under native law and custom to
occupy the Iga—Crown Grants (Township of Lagos) Ordinance,
No. 18 of 1947 (Laws of Nigeria, 1948, c. 44), recital; s. 3.
By a treaty of cession in 1861 Docemo, the then Oba or " King "
of Lagos, a descendant of Ado, the first Oba, ceded absolutely to the

+ Present: EARL JOWITT, LORD COHEN, LORD DENNING.

 [1957] 1 W.L.E. 877

British Crown the port and island of Lagos. The British authori- J- C.
ties thereafter allowed Oba Docemo to continue to occupy the Iga 10t._
Idunganran, or royal palace, at Lagos, and in 1870 they made a
Crown grant of the land on which the Iga stood " to the said King ADBYINKA
" Docemo, his heirs, executors, administrators and assigns for ever." OYEKAN
The last of Docemo's line to be Oba died in 1949, and on his death M *•
the chiefs selected as his successor, '' in accordance with customary AJDHLB.
"law and tradition," the respondent, who was also descended from
the first Oba Ado but by a different line from that of Docemo.
Immediately thereafter the respondent and his followers forcibly
entered and occupied the Iga in the face of opposition by the family
of Docemo, who thereupon, resting their case on the Crown grant of
1870, began the present proceedings against the respondent claiming
a declaration of title to the Iga, damages for trespass, and recovery
of possession. The respondent's defence was that he had been duly
" capped" as Oba and occupied the Iga as his official residence in
accordance with ancient native custom : —
Held, (1) that the evidence established that before the treaty of
cession the Oba of Lagos by native custom had by virtue of his office
a right to live in the Iga, and that on his death the Iga did not
pass to his heirs or to his family but to his successor in office. I t
was the traditional home of the Obas where each of them lived.
(2) That the right to occupy the Iga was a right which the Oba
possessed as Oba and, accordingly, the property in the Iga had, as
provided by the Crown Grants (Township of Lagos) Ordinance, 1947,
passed to the British Crown under the treaty of cession of 1861.
(3) That, approaching the case on that basis—that the Iga had
passed to the Crown under the treaty—the Crown grant of 1870
did not transfer the property to the family of Docemo absolutely.
Government grants did not convey English titles or English rights
of ownership, and the words " his heirs, executors, administrators
" and assigns for ever " in the grant of 1870 were to be rejected as
meaningless and inapplicable in their African setting. The effect
of a Government grant was only to ascertain and denote the chief or
headman who had charge of the land for the time being—it being
family land; it left the interests of the family or occupiers intact,
to be determined as theretofore by the local law. While the cases
which established this (Sunmonu v. Disu Raphael [1927] A.C. 881;
Idewu Inasa v. Oshodi [1934] A.C. 99; 50 T.L.R. 168) were
concerned only with the rights of the family or occupiers, whereas
the present case concerned the rights of the Oba, those cases were
confirmed and made of general application by section 3 of the
Ordinance of 1947, which provided that " All grants of land . . .
'' within . . . Lagos . . . shall be deemed to have vested in the
" grantee an estate free from competing interests and restrictions,
"save only such interests and restrictions, recognized by native law
" and custom, as at the date of the grant affected such estate."
(4) That, applying section 3 of the Ordinance of 1947, the grant
of 1870 vested in Docemo an estate which was subject to "such
" interests and restrictions, recognized by native law and custom "
as affected it at that date. Accordingly, whatsoever estate passed to
Docemo, it was subject to the right of his successor to occupy the
Iga—this right being an interest and restriction recognized by
native law and custom. The grant took effect only subject to that
right.
(5) That the respondent, the present Oba, was accordingly
entitled to occupy the Iga, was entitled to enter it as he did, and
the Docemo family were wrong to resist him. No cause for action
in damages lay: section 292 of the Criminal Code (Laws of Nigeria,
c. 42).
878 THE WEEKLY LAW KEPOBTS JULY 19, 1957

J- C. Hemmings v. Stoke Poges Golf Club [1920] 1 K.B. 720; 36

1957 T.L.R. 77 applied.
Judgment and order of the West African Court of Appeal
ADEYIKKA affirmed.
OJEKAN
, °- APPEAL (NO. 39 of 1953) from a judgment and order of the
W.U8ENDIKU o -
ADELB. West African Court of Appeal (November 17, 1952) affirming a
judgment of the Supreme Court of Nigeria (January 18, 1951).
The following facts are taken from the judgment of the
Judicial Committee: The principal question on this appeal was to
whom did the royal palace at Lagos belong? Its modern
description was No. 26, Upper King Street, Lagos, but it had
been known for over 200 years as the Iga Idunganran. I t was
claimed by the present Oba of Lagos as his official residence, but
it was claimed by the descendants of a previous Oba as their
own property. The Oba had sometimes been described as the
King of Lagos, but this was hardly a correct rendering. His
position had no exact parallel in English institutions. He was a
very influential person whose standing was shown by the fact that
he was ex officio President of the Lagos Town Council.
The dispute was a family one. The first Oba or King from
whom all others had descended was named Ado. He ruled from
1630 to 1689 A.D. One important branch of his descendants was
the family of Docemo who was Oba or King from 1853 to 1885:
From Docemo's accession in 1853 down to 1949 every Oba (save
one for three years) was a member of Docemo's family. The
last of Docemo's line to be Oba was Falolu, who was Oba from
1932 to 1949 and died on September 2, 1949.
On the death of Falolu the chiefs met together to select his
successor. Various names were submitted to them. The family
of Docemo presented one of their men as a worthy successor but
the chiefs did not select him. They selected Adeniji Adele who
was not a member of the family of Docemo. He was descended
from the first Oba Ado but by a different line from that of
Docemo. The announcement of his succession was made public
in these words: " I t is officially announced that Adeniji Adele,
" having been properly selected in accordance with customary
" law and tradition, is recognized by the Government as Head
"of the House of Ado."
The new Oba Adele claimed to occupy the Iga Idunganran:
but the members of the family of Docemo resisted the claim.
The supporters of Adele put up notices on the verandah of the
Iga saying that he was coming. They also put them outside on
the walls. At about 6 o'clock in the afternoon of October 1,
1949, Adele came in a car followed by the chiefs and many others
and sought to enter the Iga. The family of Docemo opposed
them. They pushed them back and locked the gates. Adele's
brothers got a crowbar and a hammer and forced a way in.
Adele's car was then driven into the compound followed by the
chiefs and many people. They went to the shrine in the Iga.
The family of Docemo slipped out and got away in cars.
 [1957] 1 W . L . E . 879

Twelve days later, on October 13, 1949, the family of Docemo J. C,

brought this action against Adele in the Supreme Court of Nigeria 1957
in which they claimed a declaration of title to the Iga, £2,000
ADETINKA
damages for trespass, and recovery of possession. The defence OYEKAN
was that Adele was duly " capped " on October 1, 1949, as the V.
MUSENMKD
Oba of Lagos by the chiefs entitled to do so and occupied the ADETJB.
Iga in accordance with ancient custom/ The action was tried by
Eeece J., who dismissed the claim. The family of Docemo
appealed to the West African Court of Appeal (Foster Sutton P.,
Verity C.J. and Coussey J.A.), who dismissed the appeal. The
family of Docemo now appealed to Her Majesty in Council. The
family of Docemo rested their claim on a Crown grant. They
said that in 1861 Docemo made a treaty of cession with Britain
whereby the territory of Lagos, including the Iga, passed to the
British Crown, and that in 1870 the Crown granted the Iga to
the Docemo and his family for ever. They said that since the
treaty of cession, 1861, there had been no Oba of Lagos except
as a courtesy title, and that no rights had attached to it.

1957. May 6, 7, 8. Dingle Foot Q.G., Ralph Millner and

T. 0. 8. Benson for the appellants.
B. J. M. MacKenna Q.G. and Arthur Bagnall for the
respondent.

The following cases, not referred to in the judgment, were

cited in argument: Oduntan Onisiwo v. Attorney-General1;
Attorney-General of Southern Nigeria v. John Holt & Co. (Liver-
pool) Ltd.2; Sakariyawo Oshodi v. Balogun3; Eshugbayi Eleko v.
Government of Nigeria (Officer Administering).4,

June 26. The judgment of their Lordships was delivered by

LORD DENNING, who stated the facts set out above and continued:
The contest is therefore between the family of Docemo who claim
by grant from the Crown of England, and the defendant Adele
who claims by native custom as Oba of Lagos.
Their Lordships find it fully established by the evidence and
by the concurrent findings of the courts below that, before the
treaty of cession, the Oba of Lagos by native custom had a right
to live in the Iga. He had this right by virtue of his office. On
his death the Iga did not pass to his heirs or to his family but to
his successor in office. I t was the traditional home of the Obas
where each one of them lived. But the chiefs were also entitled
to make proper use of it. For instance, the weekly meeting of
chiefs was held there and other ceremonies.
What, then, was the effect of the treaty of cession in 1861?
Did it pass the property in the Iga to the British Crown? The
treaty was made " in order that the Queen of England may be
" the better enabled to assist defend and protect the inhabitants
3
i (1912) 2 Nig.L.B. 77. [1936] 2 All E.E. 1632.
2 [1915] A.C. 599. * [1928] A.C. 459; U T.L.B. 632.
880 T H E W E E K L Y LAW EEPOBTS JULY 19, 1957

J . C. '' of Lagos and to put an end to the slave trade " : by article 1
1957 Docemo King of Lagos on the part of himself and chiefs made
this cession: " I do with the consent and advice of my Council
ADEYINXA
OYEKAN " give, transfer and by these presents grant and confirm unto the
0. " Queen of Great Britain her heirs and successors for ever the
MUSENDIKU
ADEI.H. '' port and Island of Lagos with all the rights profits territories
" and appurtenances whatsoever thereunto belonging and as well
" the profits and revenue as the direct full and absolute dominion
" and sovereignty of the said port island and premises with all
" the royalties thereof freely fully entirely and absolutely." By
article 2 Docemo was allowed the use of the title of King in its
usual African signification. By article 3 Docemo was during his
lifetime to receive a pension of 1,200 bags of cowries a year.
Their Lordships desire to point out that the treaty of cession
was an Act of State by which the British Crown acquired full
rights of sovereignty over Lagos. In these circumstances the
courts of law will not take it upon themselves to construe the
treaty. The effect of the Act of State is to give to the British
Crown sovereign power to make laws and to enforce them, and
therefore the power to recognize existing rights or extinguish
them or to create new ones. In order to ascertain what rights
pass to the Crown or are retained by the inhabitants, the courts
of law look, not to the treaty, but to the conduct of the British
Crown. It has been laid down by their Lordships' Board that
" Any inhabitant of the territory can make good in the municipal
" courts established by the new sovereign only such rights as that
" sovereign has, through his officers, recognized. Such rights as
" he had under the rule of his predecessors avail him nothing."
See Vajesingji Joravarsingi v. Secretary of State for India,1 by
Lord Dunedin, Hoani Te Hcuheu Tukino v. Aotca District Moari
Land Board.2 In inquiring, however, what rights are recognized,
there is one guiding principle. It is this: The courts will assume
that the British Crown intends that the rights of property of the
inhabitants are to be fully respected. Whilst, therefore, the
British Crown, as Sovereign, can make laws enabling it com-
pulsorily to acquire land for public purposes, it will see that
proper compensation is awarded to every one of the inhabitants
who has by native law an interest in it: and the courts will
declare the inhabitants entitled to compensation according to
their interests, even though those interests are of a kind unknown
to English law, see Amodu Tijani v. Secretary, Southern Nigeria,3
Sakariyawo Oslwdi v. Moriamo Dakolo.4, Furthermore, if a dis-
pute arises between the inhabitants as to the right to occupy a
piece of land, it will be determined according to native law and
custom, without importing English conceptions of property law,
see Sunmonu v. Disu Raphael,5 Idewu Inasa v. Oshodi,* except,

i (1924) L.R. 51 I.A. 357, 360. i [1930] A.C. 667; 46 T.L.E. 599.
2 [1941] A.C. 308, 324-325; 57 s [1927] A.C. 881.
T.L.K. 419; [1941] 2 All E.R. 93. « [1934] A.C. 99; 50 T.L.E. 168.
s [1921] 2 A.C. 399.
 [1957] 1 W.L.E. 881

of course, in those cases, now growing in number, where English J . C.

conceptions of individual ownership have superseded previous 1957
conceptions.
ADBYINKA
The present case sets their Lordships a new problem. I t OYEKAN
V.
concerns, not the rights of the inhabitants, but the rights of the MUSBNDIKCT
previous ruler himself. I t concerns his official residence. Did ADBLB.
this pass to the British Crown or not? Mr. Dingle Foot says that
it did. This is an essential preliminary to his contention that the
British Crown afterwards granted it to the family of Docemo. In
order to get the title in the British Crown, he relies particularly
on a recital in the Crown Grants (Township of Lagos) Ordinance,
No. 18 of 1947, which says " the effect of the treaty was that,
" while the private rights of property of the inhabitants were to
" be fully respected, there passed 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."
Their Lordships regard that recital as an authoritative state-
ment by the British Crown of the effect of the treaty. It is,
however, not easy to interpret. Their Lordships are inclined to
think that the only rights of the Oba which passed to the Crown
were the rights which he possessed in his official capacity as Oba,
and not those which he possessed in his private capacity.
Suppose, for instance, he had personal property of his own, such
as silks, or bags of cowries which are used as money. Their
Lordships do not think that these would pass to the Crown, and
this view is supported by the fact that the British Consul on
February 11, 1862, received King Docemo and his chiefs and
explained to them that far from depriving them of their private
property, the " cession will render it more valuable " to them.
Accepting, however, that the only rights which passed to the
Crown were the rights which the Oba possessed as Oba, . the
question is what were those rights? They would clearly compre-
hend any right which he had to exact tribute and revenue, to issue
land certificates, and so forth. But was the right to occupy the
Iga a right which he possessed as Oba? Their Lordships are
inclined to think that it was. It was his official residence. I t
was, so to speak, public property occupied by him by virtue of his
office. Their Lordships see no valid distinction in law between
the official residence of the Oba and any other public property
which he possessed in his capacity of Oba. I t all passed to the
British Crown. It is true that he did not possess the Iga
'' beneficially and free '' from the rights of others. The chiefs
had the right to use it for meetings and ceremonies. But that
does not mean it did not pass to the Crown. The words
" beneficially, etc.," in the Ordinance are taken from the judg-
ment of Viscount Haldane in Amodu Tijani,7 and appear to be
inserted so as to protect the rights of the subjects, not to limit the

7 [1921] 2 A.C. 399, 407.

VOL. 1 62 (1)
882 THE WEEKLY LAW EEPOETS JULY 19, 1957

J- C. n a t u r e of t h e property which passed t o t h e Crown. Their Lord-

1957 ships are therefore disposed to approach t h e case on t h e basis t h a t
t h e I g a passed t o t h e British Crown under t h e treaty of cession.
OYBKAN Even so, it is quite plain that the British authorities did not
v
r - take possession of the Iga. They allowed the Oba Docemo to
ADELE. occupy it after the cession just as he did before. And in due
—— course in 1870 they made a Crown grant of it to him. This
brings their Lordships to the root question in the case. What
was the effect of this Crown grant? Did the British Crown
transfer the property to the family of Docemo absolutely? Their
Lordships draw attention to the very English form of the Crown
grant. The administrator grants or assigns " to the said King
" Docemo, his heirs, executors, administrators and assigns for
"ever the above specified piece of land." Those words are
familiar in English law. They would fit well into a society which
had the same legal structure as England: but they do not fit at
all well into the structure of Lagos. The grant is drawn up
according to the English conception whereby one man is able to
have the entire ownership of land himself, with power to sell
it to another absolutely, power to transfer it by his will to anyone
he likes on his death, or, if he leaves it undisposed of on his
death, it passed by law to his heir and now to his personal
representatives. The inhabitants of Lagos in 1870 approached
land in a very different fashion. No one man was entitled to own
a piece of land absolutely. I t belonged to the family for their
use. The chief had charge of it on behalf of the family but he
could not sell it. The idea of sale did not come into the scheme
of things at all. The chief had control of the land, and any
member of the family who wanted to make use of it had to go
to him for it, but even the chief could not make any important
disposition of it without consulting the elders of the family. On
his death the new chief took over the rights and duties of control
on behalf of the family. I t was family land and always
recognized as such. This all appears from the Eeport on Land
Tenure in West Africa made in 1898 by Eayner C.J., and on
Land Tenure in Lagos by Mr. Healy, the Land Commissioner.
Many of those Crown grants were made in the English form:
and much misunderstanding has arisen on that account. People
have claimed rights under the grants in English fashion as though
thereby they gained a title superior to the rights of the rest of
the family under the local law. Several of these cases have
reached their Lordships and it has been uniformly held that these
Government grants do not convey English titles or English rights
of ownership. The words " h i s heirs, executors, administrators
" and assigns forever " are to be rejected as meaningless and
inapplicable in their African setting. The effect of a Government
grant is only to ascertain and denote the chief or headman who
has charge of the land for the time being. I t leaves the interests
of the family or occupiers intact, to be determined, as theretofore,
by the local law. The cases already cited make this quite clear,
 [1957] 1 W . L . E . 883

for in all of them Crown grants had been issued. Their Lordships J . C,
realize that those cases were concerned only with the rights of the 1957
family or occupiers: whereas the present case concerns the rights
ADEYINKA
of the Oba. But there is an Ordinance which confirms those OYBKAN*
decisions and makes them of general application. It is section 3 V.
MUSENDIKU
of the Crown Grants (Township of Lagos) Ordinance, which says ADELB. •
that " All grants of land situate within the township of Lagos
" . . . shall be deemed to have been validly made; and each of
" such grants shall be deemed to have vested in the grantee an
" estate free from competing interests and restrictions, save only
" such interests and restrictions, recognized by native law and
" custom, as at the date of the grant affected such estate."
Applying the Ordinance, it appears to their Lordships that the
Crown grant to King Docemo in 1870 of 26, Upper King Street (on
which the Iga stands), vested in him an estate which was subject
to " such interests and restrictions, recognized by native law and
" custom " as affected it at that date. Their Lordships are clearly
of opinion that, whatsoever estate passed to King Docemo, it was
subject to the right of his successor to occupy the Iga. This right
was an interest and restriction recognized by native law and
custom. It was recognized at that time and has been recognized
ever since. The grant to King Docemo took effect only subject to
that right. Neither he nor his successors took a title to the fee
simple or to the freehold (to use English conceptions). He took
an estate which was more like the estate of a corporation sole than
anything else. It vested in the holder of the 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 1, 1949; and
that the family of Docemo were wrong to resist him.
It was argued, however, that even if the Oba was entitled to
occupy the Iga, nevertheless the legal title was still in the family
of Docemo and they were entitled to a declaration to that effect:
that the Oba was not entitled to take possession by force; that he
had only an equitable interest and ought to have sought his
remedy in the courts; and that his action in turning out the legal
owner was a trespass. The fallacy in this argument is that it
seeks to apply the English concepts of legal owner and equitable
beneficiary to cases where they are quite inapplicable. The simple
fact is that by native law and custom the duly appointed Oba was
entitled to occupy the Iga and did so. It is clear that no cause
for action in damages lies on that account, see section 292 of the
Criminal Code and Hemmings v. Stoke Poges Golf Club.8
Their Lordships are aware that in several parts of Lagos the
native law has been superseded by English conceptions of indi-
vidual ownership. Nothing "their Lordships have said here affects
those parts. Suffice it to say that the Iga Idunganran is still
8 [1920] 1 K.B. 720; 36 T.L.K. 77.
VOL. 1 62 (2)
 THE WEEKLY LAW EEPOETS JULY 19, 1957

subject to the native law and custom which gives t h e Oba of Lagos
the right to occupy it during his life.
Accordingly, their Lordships will humbly advise H e r Majesty
ADEYINKA
OYEKAN that the appeal should be dismissed. The appellants m u s t p a y
v. the costs of this appeal.
ADELB.
MtJSENDIKU
Solicitors: A. L. Bryden & Williams; Hatchctt Jones & Co..

C. C.

[COURT OF APPEAL.]

C. A. * In re W H I T E I C K , DECD.
1957 S U T C L I F F B v. S U T C L I F F E AND OTIIEBS.
May 17.
Jenkins, [1956 W. 2456.]
Romer and
Sellers L.JJ.
Will—Construction—Omission—Will showing words omitted by accident
or mistake—Possibility of literal construction—Missing words
supplied by court.
The testatrix by her will left her entire estate to her husband,
but provided that '' in the event of my husband . . . and myself both
" dying at the same time," her estate should be held upon trust for
three named persons. The husband predeceased the testatrix,
having made a will in similar terms to that made by the testatrix,
under which she succeeded to the whole of his estate. On a summons
to determine whether the court should read words into the will of
the testatrix to enable the trust in favour of the three named
persons to take effect: —
Held, that the whole contingency for which the testatrix intended
to provide was not expressed by the words " in the event of my
"husband . . . and myself both dying at the same time," since it
was clear that she had intended to provide for the disposition of her
estate if the husband predeceased her, or if both her husband and
herself should die at the same time; in these circumstances, the
court should supply words giving effect to the testatrix's manifest
intention.
In re Smith [1948] Ch. 49; 63 T.L.R. 608; [1947] 2 All E.R.
708 applied.
Decision of Harman J. reversed.

APPEAL from H a r m a n J .
The plaintiff, who was administratrix of the will, appealed
against the decision of H a r m a n J . t h a t the testatrix, A m a n d a
Whitrick deceased, died wholly intestate. The facts appear fully
in the judgment of Jenkins L . J .

W. S. Wigglesworth for the plaintiff administratrix.

The defendants did not appear and were not represented.

[Reported by M. B. KELLY; Esq., Barrister-at-Law.]