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UDEAKPU EZE
V.
SAMUEL IGILIEGBE AND FIVE OTHERS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
24TH DAY OF APRIL, 1952
APPEAL NO. 3693
2PLR/1952/53 (WACA)
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OTHER CITATION(S)
2PLR/1952/53 (WACA)
(1952) XIV WACA PP. 61 – 63
LEX (1952) – XIV WACA 61 – 63
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
DE COMARMOND, Ag. C.J., NIGERIA
COUSSEY, J.A.
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BETWEEN:
UDEAKPU EZE – Appellant
AND
SAMUEL IGILIEGBE AND FIVE OTHERS – Respondents
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ORIGINATING COURT(S)
Appeal from the Supreme Court
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REPRESENTATION
G. C. M. Onyiuke — for Appellant
C. D. Onyeama — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Real property – Communal tenure in customary law Onus to prove that one section only of a town is owner.
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CASE SUMMARY
The plaintiffs below claimed an account of rents suing on behalf of two quarters and alleging that the land belonged to the people of the town as a whole, which the defendant denied. The plaintiffs proved that the land belonged as they alleged and that the whole town used to grant land to strangers and that the rents bad been collected for the community as a whole, until recently, when defendant cut out the plaintiffs. The defendant alleged that each quarter bad its own land and denied that his section had ever shared rents with the plaintiffs. The trial Judge accepted the evidence for the plaintiffs but not that for the defendant; be also postulated that land belongs to a community; and he gave judgment for the plaintiffs. The defendant appealed, and his argument was that his section could bold in common the major part of the land in dispute but it was impossible for the whole town to bold land in common-that there was no community of the town but each quarter was a community.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal) that:
1. It was right to presume as matter of customary law that the land belonged to the community as a whole.
2. The onus was on the defendant to establish that his section had a title to the exclusion of the community as a whole but be failed.
Case cited:-
(1) Amodu Tijani v. Secretary, Southern Provinces, Nigeria, 1921, 2 A.C. 399.
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MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J. A.
This suit was commenced in the Affa Native Court in September, 1949, and was transferred to the Supreme Court by an Order of the senior District Officer of the Udi Division, made under section 25 (1) (a) of the Native Courts Ordinance No. 44 of 1933. The plaintiffs claimed an account of all the rents and profits received by the defendant from Aku farmers on the communal farm land of Nze in the farming seasons of 1947, 1948 and 1949. In the alternative, the plaintiffs claimed £250 being their share of such rents and profits.
The plaintiffs averred that they sued on behalf of themselves and the people of Ihe and Ntugevo quarters of Ezi in Nze and averred further that the people of Ezi are the holders of the land in issue. The plaintiffs alleged that the defendant had been collecting rents and tribute from the Aku tenants who had been placed on the land by the community, that is to say the people of Nze.
In his defence the defendant denied that the land in issue was held communally by the people of the town of Nze and be alleged that each quarter bad its separate land. He did not allege the title of his section or quarter to the land but contented himself with the traverse of the plaintiffs’ claim.
Put shortly the plaintiffs proved that the land in question is owned by the people of Nze as a whole, that for many years and up to the events previous to this suit, Nze as a whole bad granted portions of the land to strangers, that the rents bad been collected for the community as a whole but that in latter years the defendant alone had placed Aku tenants on the land and received. rents and tribute from them and had not given such rent and tribute to the plaintiffs, and had failed to account therefor.
There are two main groups in Nze, namely, the lbite and Ezi sections. The Ezi section is subdivided into four quarters, the lhe, Ntugevo, Amutu and Agbala quarters. The other main section of Nze which is the defendant’s section is also subdivided into four quarters, namely, two sections of Ilule Nze, Okinigba and Ujuta quarters. As already stated the defendant, who is head of the Ibite section or group, contended that each quarter of Nze has the exclusive occupation of a defined portion of the Nze land and that no land is held in common by the community, and the defendant denied that he had ever shared rents received by him or his predecessor from tenants on the land with the other section, namely the Eze section of the Nze.
The learned trial Judge considered the two issues, firstly, whether the !bite section had the right to put tenants on the land and obtain rents to the exclusion of the Eze section, and secondly, if the !bite section were not so entitled, did the defendant in fact place Aku tenants on the land during the 1947, 1948 and 1949 fanning seasons, and if so, what rents or tribute had been received by him. The first issue involved the determination of the further issue whether the land was owned by the community of Nze, as the plaintiff alleged, or by the !bite section as the defendant said. The learned Judge on considering the evidence found that the land belonged to the whole community. He postulated that the customary tenure of the area where the land is situate is communal. In the well-known authoritative statement of Lord Haldane in Amodu Tijani v. Secretary, Southern Provinces, Nigeria (1), the relevant passage is as follows:-
“Land belongs to the community, the village or the family, never to the individual. All the members of the community, village or family have an equal right to the land,”
and later, the Lord Chancellor went on:-
“This is pure native custom along the whole length of this coast, and whenever we find, as in Lagos, individual ownership this is again due to the introduction of English ideas.”
There can be no quarrel with that statement of customary tenure. As a general principle it has been applied in numerous cases and in postulating, as the learned Judge did, that the land belongs to the community and then, in deciding on the evidence in this case, that it belonged to the Nze community, he was not departing from the principles of Native customary tenure.
The plaintiff in his evidence testified that in their lives, his father before him and the defendant’s father in turn had both placed Aku tenants on the land and that the rents were shared between the Ezi and Ibite sections and that the defendant after the death of their fathers had collected the rents up to the year 1937, when the Resident of the District stopped the introduction of Aku tenants to the land. That evidence was unshaken and was accepted by the Court and the finding that that evidence was true in fact settled the issue. This Court will not, on the evidence, interfere with that finding of fact.
The learned Judge found that the defendant’s documentary evidence did not support his contention and that his witnesses, three of whom had identified themselves with the defendant, could not be accepted. Those three witnesses were from the Amutu and Agbara quarters of Nze and the learned Judge took the view that owing to the influence of the defendant. they were prepared to say contrary to the fact that each quarter kept the rents received from tenants and, had the right to rent land while the Nze community as a whole had no such right.
The fallacy in the defendant-appellant’s case is that whilst his Ibite section could for some reason own in common the major part of the land in dispute, it is impossible for the whole community of Nze to bold land in common. In other words, whereas it is in accordance with Native customary tenure for a section of half of the town or community to hold land in common, it is against Native custom for the whole of the community to hold land in common. It seems to this Court that the very case which the defendant was setting up supports rather than destroys the case of the plaintiffs.
The learned Judge considered further, on a review of the evidence, that the defendant’s case was fabricated and that he was obliged to resort to various shifts to support his case. The learned Judge concluded that no satisfactory explanation had been given why the ordinary principles of land tenure should not apply and be remarked that it would be contrary to Native custom that stranger tenants should be let into land which he held to belong to the community as a whole by a quarter or section, and for that quarter or section to draw rents and tribute to the exclusion of the community.
As to the appellant’s contention in this Court that there is no community of Nze but that the quarters are each a community and therefore owns land to the exclusion of the people of Nze as a whole, I would say that the onus was upon the defendant to establish that his section or quarter had a title to the land to the exclusion of the Nze community as a whole as set up by the plaintiffs. The learned Judge held that he had failed to establish such a title.
That disposes of the appeal. It is clear that the learned Judge did not misdirect himself on any fundamental principle of land tenure and the appellant failed entirely to establish an exclusive right over the land which would entitle him to the rents as is set out in paragraph No. 3 of the additional grounds of appeal
For these reasons I would dismiss the appeal and it follows that the plaintiffs are entitled to the account which on the Referee’s report is agreed at £140 12s. 6d, for rent and one quarter of which will be £35 for the plaintiff.
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FOSTER-SUTTON, P.
I concur and have nothing to add.
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DE COMARMOND, AG. C. J.
I concur.
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The appeal is dismissed and the costs bed at £19 7s. 0d.
Appeal dismissed.
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