Abbott, J. This is an appeal by Akanbi Dosunmu against the judgment of the Lagos Supreme Court whereby it was ordered (1) that the appellant should file account of rents received by him from four rooms at No.2 Dosunmu Court, Lagos, and pay over to the respondent the amount found due to him on such aunt and (2) that the appellant should be restrained from further collecting rents from the four rooms.
The facts of the case are sufficiently set out in the judgment of the Court below, it is unnecessary to repeat them here. Mr. Moore, for the appellant, dealt first with grounds (1) (a), (b), (d), (e), and of the grounds of appeal and later in his argument with ground (3). It is this latter ground, which I regard as the most important, that I propose to first is ground reads as follows:-
“The learned trial Judge erred in law by failing to give effect to Native Law and Custom relating to devolution of property as proved and as already established in this Honourable Court.”
Mr. Moore first directed the attention of the Court to paragraphs 6, 7 and 1of the statement of claim. Of these paragraph 6 is the most material and it reads as follows:-
“The plaintiff says that Nos; 2 and 2A are one and the same house and was allotted to Tonoba a domestic and wife of Dosunmu Ajiwe in accordance with Native Law and Custom.”
Native Law and Custom is thus said to be, in effect, the respondent’s root of Mr. Moore contends that the respondent did not, in the Court below, prove existence of any such Native Law and Custom.
The only case in which proof of such a root of title is unnecessary is when that of title (in this instance, the particular Native Law and Custom whose existence is averred) has been already accepted by the Courts.*Page 528Respondent’s counsel relies, on this important point, on exhibit A, which is the record of Suit 161/47, and contends that this amounts to an acceptance by the Courts of the root of title he now seeks to set up.
I do not find it possible to agree with this contention. The Native Law and Custom alleged here is, briefly, that property can be allotted and descend not through a child but through a wife. If such Native Law and Custom existed, it would mean that, on the death of a childless wife, not of the same family as her husband, property vested in her would pass away from the husband's family, from whom the wife became entitled to it, to the wife's family. I can find nothing either in exhibit A or anywhere else to show that such a method of devolution has ever been accepted by the Courts. It cannot be suggested that there is any evidence affording proof of the Native Law and Custom averred in paragraph 6 of the statement of claim.
Moreover, so far as concerns the first set of grounds of appeal argued by Mr. Moore, it is clear from his judgment that the learned trial Judge placed a great deal of weight on the evidence of Hector Oshodi Glover (a witness for the respondent). “I entirely agree that this witness was one whose evidence should receive much more attention and weight than the evidence of some of the other witnesses, but, in my view, his answers at the beginning of his cross-examination by appellant's counsel not only destroy what support his evidence-in-chief may have given to the respondent, but also lend active support to the case for the appellant. Here are those answers: “Efforts were made to settle this case out of Court. We all met at Oshodi Palace to settle the matter. We went to identify the rooms. Four rooms belong to Dosunmu Chieftaincy Palace. They are at the back of the front house, general family property.” That evidence, in my view, very materially damages the respondent's case.
On all grounds, therefore, I would allow this appeal, reverse the judgment of the Court below, and enter judgment for the appellant who must have the costs of this appeal, assessed at £39 1s. 0d. and £36 15s. 0d. for costs in the Court below.
At the trial some question was raised as to whether the respondent was a member of the Dosunmu Family. I think it quite clearly established that this question is resolved in favour of the respondent.
Foster-Sutton, P.. I concur. Coussey, J.A. I concur.
Appeal allowed.