A Grant of Land That Was Never the Grantor's to Give: Romaine v. Romaine

A Grant of Land That Was Never the Grantor's to Give: Romaine v. Romaine

Case: Romaine v. Romaine [1992] 4 NWLR 650 (SC) Court: Supreme Court of Nigeria

Two men, both claiming descent from the same 19th-century patriarch, fighting over a single property in Onitsha. One side says the other's ancestor was merely a servant, not a son. The other side counters with a foreign tribal custom nobody had ever proven in a Nigerian court before. And in the middle of it all, a landlord family hands out the same piece of land twice, decades apart, to two different people. This 1992 Supreme Court decision untangles all of it — and along the way delivers one of the clearest illustrations you'll find of why you can't give away something you've already given away.

One Grandfather, Two Rival Grandsons

The land at the centre of the dispute — No. 20 Emejulu Street, Onitsha — was originally owned outright by the Mgbelekeke family, who had granted it out under a customary arrangement called a kola tenancy to a man named Tom Elo Romaine, long since deceased. Both sides in this case agreed on that much. What they didn't agree on was who, among Tom Elo Romaine's descendants, was entitled to inherit the tenancy.

The plaintiff sued as head of "George Romaine's family," claiming the property as communal family land and seeking damages for trespass against the defendant, who he said had broken onto the land and begun interfering with tenants.

The defendant told a very different story. According to him, the man the plaintiff called "George Romaine" — supposedly Tom Elo Romaine's son — wasn't a son at all, but a servant named George Chukwuka who happened to share living quarters with the family out of Tom Elo Romaine's generosity. The defendant instead traced his own claim through his mother, Comfort, whom he said was Tom Elo Romaine's actual daughter. To bolster this, he invoked something called Kissy customary law — a tribal custom from Sierra Leone, where he said Tom Elo Romaine originally hailed from — under which children of unmarried mothers, and specifically female descendants, would inherit ahead of others. On top of all this, the defendant had also gone directly to the Mgbelekeke family in 1961 and obtained his own fresh grant of a kola tenancy over the same land, entirely independent of anything to do with the plaintiff's side of the family.

A Trial Judge Caught Between Two Contradictory Findings

The trial judge, faced with a genuinely difficult tangle of oral family history spanning generations, made two findings toward the end of the judgment that sat awkwardly against each other: first, that the plaintiff hadn't shown he was actually a son of George Romaine, or that George Romaine was actually a son of Tom Elo Romaine; and second, that both the plaintiff and the defendant were illegitimate children of the people they each claimed as their fathers.

Rather than resolving the underlying succession question head-on, the trial judge essentially treated the case as a deadlock and reached instead for the 1961 grant the defendant had separately obtained from the Mgbelekeke family — treating that document as decisive proof that the land had validly passed to him. On that basis, the plaintiff's claims were dismissed.

The plaintiff appealed, and the Court of Appeal reversed the outcome, finding the trial judge had placed far too much weight on that later grant and that the plaintiff had, in fact, established his entitlement to the property. The defendant then carried the fight to the Supreme Court.

What the Supreme Court Had to Work Through

The appeal raised several threads at once: had the Court of Appeal been right to override the trial judge's factual findings? Was the earlier grant to the defendant actually worth anything, given that the same landlord family had already given the land away once before? And could evidence from an entirely separate, earlier court case be relied upon here?

The Court's Reasoning

You Can't Grant the Same Land Twice

This is the centerpiece of the decision, and it's built on one of the oldest principles in property law. Once the Mgbelekeke family granted the kola tenancy over the disputed land to Tom Elo Romaine, what they retained afterward was only a reversionary interest — essentially, whatever residual claim would come back to them if the tenancy ever lapsed. They didn't retain the underlying interest itself, free to hand out again to someone else.

So when they turned around decades later and purported to grant the very same tenancy to the defendant, they were trying to give away something they no longer actually had. Applying the age-old rule that nobody can grant what they don't possess, the Supreme Court found that the 1961 document handed to the defendant was legally meaningless — a signature on a page that transferred nothing at all, however official it looked. That meant the trial judge's heavy reliance on it as the deciding factor in the case was simply misplaced from the outset. The real question the trial judge should have grappled with was always who was entitled, by inheritance, to succeed to Tom Elo Romaine's original tenancy — not whether a second, legally empty document existed.

Void Versus Voidable: A Distinction That Actually Mattered Here

The Court took the opportunity to clarify a distinction that trips people up surprisingly often. A voidable document — one that's flawed in some way but not fundamentally invalid — stays in full legal force until someone with standing (specifically, a party to the deed itself) takes active steps to have it set aside. A truly void document, by contrast, never had any legal effect in the first place; anyone affected by it can point that out, in court or otherwise, without needing to formally "cancel" anything, because there was never anything there to cancel. The 1961 grant to the defendant fell into the second category — a nullity from day one, not a flawed-but-standing document waiting to be challenged.

Kola Tenancies Don't Just End With the Tenant's Death

One point worth flagging for anyone unfamiliar with customary land tenure: a kola tenancy, like other customary tenancies, doesn't automatically terminate just because the original tenant dies. It can only be brought to an end through a proper forfeiture action. In the ordinary course, it's an interest that passes down to the tenant's successors — which is precisely why the real dispute here was always about who those successors were, not whether the tenancy had somehow expired on its own.

An Unproven Foreign Custom Doesn't Get a Free Pass

The defendant's reliance on Kissy customary law ran into a straightforward evidentiary problem: customs generally have to be proven like any other fact, unless they've become so well-established through repeated recognition by courts of equal or higher standing in the same area that they've effectively become common knowledge — at which point a court can simply take note of them without fresh proof each time. That threshold requires real notoriety; a single prior ruling on the point isn't nearly enough, but a string of consistent decisions can get there. Since nobody had ever previously established the existence of this particular custom in a Nigerian court, and the defendant led no evidence to prove it here either, it simply couldn't be relied upon. The plaintiff's side, by contrast, had called credible witnesses — including a respected traditional titleholder — to support the competing account of Onitsha custom regarding succession for the descendants of non-indigenes.

Evidence From an Earlier Case Doesn't Just Carry Over

A more technical, but practically important, point: testimony given in an earlier, separate proceeding can't simply be imported wholesale as evidence in a later case. Its use is much narrower — it can be deployed to challenge a witness's credibility (for instance, pointing out that they said something different last time), but it doesn't stand on its own as substantive proof of the facts in the new case.

A Trial Judge Has to Actually Resolve the Question in Front of Them

Perhaps the most instructive point of all, particularly for how a judgment ought to be structured: a court's decision needs to genuinely grapple with the issues the parties actually put before it, and its conclusion needs to flow logically from that engagement. Reaching for a document that, on proper legal analysis, had no effect at all — instead of resolving the real contest over inheritance that the parties were actually fighting about — fell short of that standard. It's part of why the Court of Appeal was justified in stepping in.

When Appellate Courts Can Step In on Findings of Fact

Normally, a trial judge who has seen and heard witnesses directly is given considerable deference on questions of fact. But that deference isn't unconditional. Where a trial judge produces genuinely conflicting findings on a crucial issue — as happened here, with the contradictory conclusions about paternity and legitimacy — an appellate court doesn't have to just throw up its hands. It can weigh the two versions against the trial record and go with whichever one the evidence actually backs up, rather than being stuck accepting a self-contradictory outcome. And where the evidence doesn't clearly support either version well enough for the appellate court to choose between them, the fallback is ordering a fresh trial altogether.

Final Verdict

The Supreme Court dismissed the appeal, upholding the Court of Appeal's decision in favour of the plaintiff and confirming the property as belonging to the descendants of George Romaine.

Key Takeaways

  • You cannot grant away an interest you've already granted to someone else. A landlord family that hands out land once has nothing left to hand out a second time — any later "grant" is legally empty from the start.
  • Void and voidable aren't the same thing, and the difference has real consequences. A void document can be disregarded by anyone affected by it; a voidable one stays binding until formally set aside by someone with standing to do so.
  • A customary tenancy generally survives the tenant's death and passes to successors — it doesn't just lapse.
  • An unfamiliar or foreign custom needs to be proven with real evidence, unless it's already achieved such consistent recognition in the courts that it no longer needs proving.
  • Testimony from a previous case isn't automatically evidence in a new one — its main use is testing a witness's consistency, not substituting for fresh proof.
  • Appellate courts will step in when a trial court's own findings contradict each other. Deference to the trial judge has limits, and self-contradictory conclusions on a central issue are exactly where those limits kick in.

Test
  1. What was the core legal issue in the case?
  2. What did the supreme court hold regarding the validity of the defendant's title ?
  3. What did the supreme court clarify regarding judicial notice of customary law?

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