The case of D.W. Lewis & Others v. Bankole & Others remains one of the most foundational decisions on family property, succession, native law, and the evolution of customary rules under the equitable jurisdiction of the Supreme Court of Lagos (as it then was). Decided in the early 20th century, this case is a remarkable legal landmark because it forced the colonial court to confront, interpret, and either preserve or reject aspects of Lagos customary law in light of English common law, equity, social evolution, and modern property relations.
The dispute in Lewis v. Bankole emerged from a deeply rooted Lagos family arrangement, reflecting the tension between entrenched native customs of communal property ownership and the rising influence of individual landholding shaped by commerce, colonial administration, and social modernization. The case presented a rare and significant opportunity for the Court to make an authoritative pronouncement on the nature, limitations, and continuing validity of family property under Lagos customary law, especially as society rapidly evolved away from ancient communal structures
This judgment, delivered first by Acting Chief Justice Speed and later reviewed on appeal by Chief Justice Osborne, reveals the struggle between traditional native law, which emphasized collective ownership, and equitable principles, which emphasized fairness, acquiescence, and expectation.
For the first time, the Court was called upon not merely to apply customary law mechanistically, but to determine whether certain aspects of that law had become obsolete, repugnant, or incompatible with equity and natural justice. The result was a decision that shaped the entire legal framework relating to family headship, participation in family councils, rights to build, rights of occupation, alienation, leases, and distribution of rents.
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The Case: Facts, Issues, and Historical Background LEWIS V. BANKOLE 1909
At the centre of the dispute was Chief Mabinuori, a wealthy Lagosian who died in 1874, leaving behind a large family of twelve children. He owned three major properties:
The family compound at Bishop Street the property now in dispute
A second compound (“Fatola’s Compound”) south of Broad Street
Oke Popo property, portions of which were used for different family branches
A third parcel dedicated to family religious worship
During his lifetime, Mabinuori allocated accommodation on these properties to different branches of his family. After his death, the eldest surviving son, Fagbemi, became Dawodu (head of the family).
The plaintiffs—grandchildren of Mabinuori from different branches—claimed joint rights to the Bishop Street compound. The defendants—occupants of the compound who were daughters of Mabinuori and children of a deceased younger son—asserted that longstanding occupation gave them superior rights, especially since other branches had allegedly been “settled” elsewhere by Mabinuori during his lifetime.
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Thus, the core questions arose:
Is the Bishop Street compound family property?
Are all descendants entitled to share in it?Had some branches already received their shares?
Can decades-long acquiescence bar the plaintiffs’ claim?
What is the correct structure of family headship under Lagos customary law?
Speed Ag. C.J.: A Historic Pronouncement on the Future of Family Property
Justice Speed’s judgment is famous for its sweeping, bold, and controversial statements about the decline of customary land tenure.
His decision questioned whether ancient customs on property ownership still constituted “existing native law” under the Supreme Court Ordinance, stressing that only customs consistent with modern developments and equity should be enforced.
His most famous dictum appears here:
“Any attempt to revive an obviously stale claim, to constitute a state of affairs which has been openly or tacitly abandoned by all concerned… is repugnant to the fundamental rules of equity and should not be countenanced by this Court.”
He emphasized that communal ownership was a “dying institution”, unsuitable for the needs of a progressive Lagos society heavily influenced by European commerce.
Speed C.J.’s Reasoning: A Summary in LEWIS V. BANKOLE 1909
Native law applied only if it was “existing,” not ancient or obsolete.Communal and family ownership had gradually declined due to commerce and individual acquisition.
Long-term occupation and tacit family arrangements should not be disturbed.Applying strict customary succession rules after 30 years would be inequitable.
The property had been treated as separate branches’ property through decades of acquiescence.
The Appeal: Osborne C.J. Reasserts the True Nature of Family Property.
On appeal, Chief Justice Osborne took a broader and more balanced view. He acknowledged the evolution of customary practices but disagreed with Speed C.J.’s factual conclusions.
Most significantly, Osborne rejected the idea that the Bishop Street compound had ever been treated as separate property belonging only to the defendants.
He pointed to multiple facts demonstrating continued recognition of the land as family property:
Various branches continued to live thereStores on the compound were used by successive family heads
Rent was previously collected by the family head, not defendants.
No exclusive ownership had ever been openly claimed.
Separate occupation did not equal separate ownership
These factual elements led to an important dictum:
“Possession of a branch of a family is not possession adverse to the family of whom they form part.”
Thus, Osborne C.J. held that the property remained family property.
He also offered clarification on the correct principles of Lagos customary family structure
Key Rules of Law Established in This Case LEWIS V. BANKOLE 1909
1. Succession to Headship (Dawodu)
Under Lagos customary law:
“The ‘Dawodu’, or eldest surviving son, succeeds to headship; upon his death the eldest surviving child male or female of the founder is next in succession.”
2. Representation Per Stirpes
Branches are represented in the family council per stirpes, not per capita:
“Each branch has one vote, regardless of its number of descendants.”
3. Leasing and Alienation of Family Property
Family property may be leased, but cannot be sold under strict customary law.However, the court may approve a sale if necessary or advantageous.
4. Rights of Branches to Rent
All branches must be consulted before leases, and rents are shared equitably:
“Rents shall be divided in equal shares between the respective branches, subject to adjustments where a founder made prior advances to certain children.”
5. No Automatic Right of Grandchildren to Build
Grandchildren cannot build in the family compound without permission:
“The consent of the family council is required before any grandchild of the founder builds on family land.”
6. Rights of Ingress and Egress
Family members living elsewhere do not have unrestricted access:
“Non-resident members have no general right of ingress and egress, except for family meetings and inspection, and even then must not disturb occupants.”
D.W. Lewis v. Bankole is now recognized as one of the most important cases in West African legal history.
It balanced:The preservation of meaningful native customsThe demands of modern societyThe equitable rights of family membersProtection against stale or oppressive claims
LEWIS V. BANKOLE 1909 stands today as a guiding authority for:
Native law of succession ,Family land tenureLand-use rights,Division of rents,Representation in family councils,Limitation through acquiescence
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