John Apoesho & Anor V. Chief Awodiya (1964)
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PER ADEMOLA JSC
This is an appeal from the judgement of the High Court, Western Region, in which judgement was entered in favour of the plaintiff in a claim for declaration of title to land and injunction. The plaintiff in the case is a sub-chief in Ilesha and the chieftaincy is known as the Odole Chieftaincy. He claimed-
(1) that the land in dispute (known as Iloba farmland) belongs to the Odole Chieftaincy Family and that he is the owner; and
(2) that the defendants are not members of that family.
The issues which, as stated by the learned Judge, came up for the consideration of the court were-
(a) Is the property in dispute stool property of the Odole of Ilesha or is it Odole Family property?
(b) Are the defendants members of the Odole Chieftaincy Family?
The learned Judge resolved the second question in favour of the defendants, and found that the point had been adjudicated upon in a previous action that the Apoesho Family, to which the defend ants belong, is a part of the Odole Chieftaincy Family. The plaintiff has not filed a cross appeal against this part of the judgement.
In his consideration of the first issue, the learned Judge resolved he matter in favour of the plaintiff and he declared as follows:-
‘In my view the plaintiff is entitled to succeed on the first part of his claim for a declaration of title under Native Law and Custom to the area shown in exhibit A and edged pink therein as the stool property of the Odole Chieftaincy and I so grant him such a declaration.
The second part of his claim in his writ reads ‘an injunction to restrain the defendants from trespassing into the land whereas the Statement of Claim reads just a bare injunction. In view of the pleadings in- this suit and the main body of the evidence on this point which was directed at the acts of the defendants in disturbing the tenants of the Odole on the land and placing their own tenants on the land, there will be an injunction to restrain the defendants, their servants and agents from disturbing in any way the tenants placed on land by the Odole without the latters permission or consent. The injunction will also be to restrain the defendants from putting tenants on the land or collecting isakole from tenants on the land or farming thereon without the consent and permission of the Odole.’
The defendants have complained that they are aggrieved by the declaration and injunction granted in favour of the plaintiff and asked that these be set aside or, in the alternative, that the injunction granted be modified so as to allow them to continue to farm on the land. It was urged on their behalf, at the trial and in this Court, that as either of them is entitled to succeed to the chieftaincy of Odole, they will be precluded from using the farmland.
The attitude of the learned trial Judge was that if either of the defendants succeeded to the chieftaincy, as the land belongs to the stool property of the Odole chieftaincy, he will become vested with the ownership of the property for life and the injunction made against him in another capacity ceases to have effect.
Counsel for the defendants/appellants attacked the judgement of the learned Judge on two points, namely-
(1) that the land in dispute has in a previous case been adjudged family land of the Odole Chieftaincy Family:
(2) that the learned Judge in his judgement found that the land is the stool land of Odole chieftaincy and not property of the Odole Chieftaincy Family, thus creating a distinction between stool land and the Chieftaincy Family land.
In considering the first ground, it appears from the evidence before the Court that there are seven farmlands which the plaintiff/ respondent contended do not belong to the Chieftaincy Family but are his own property as the Odole to be dealt with as he likes, and that he was not obliged to give any portion of any of them to any member of the family for farming purposes. He contended there is nothing like Odole family property but that the land and farmlands, including the land in dispute, are Odole stool land, and he is entitled to put tenants on them, collect rents for his own use with the only obligation of feasting members of the family during the festival.
The land in dispute, Iloba, was the Area Of Law of a dispute in 1953 when the present defendants/appellants put tenants on the land and sought to recover isakole or rents from them. The tenants took advantage of a dispute between the Chief (Odole) and the present appellants, took the side of the chief and refused to pay rents to the appellants. In the action which ensued, the Native Court of Osu, Ilesha, in case No. 27 of 1953 (Exh. B) gave judgement as follows:-
‘The defendants should pay the £25 being the cost of the isakole (rent) for last year, but it should be paid before the Chief Odole who, as a father, should know what to do with the amount with his children.’
This judgement was reversed by the District Officer, to whom the case went on appeal; the Resident later affirmed the decision of the District Officer, but on appeal to the Governors Court, the Native Court judgement was restored-see Exh. B 1. The effect of that judgement was that although Chief Odole, as the chief, has paramount interest in the rents accruing from the land (which was then referred to as chieftaincy land), he cannot neglect the individual interest of the present defendants/appellants who are members of the Chieftaincy Family.
It is difficult to say that the learned trial Judge has fallen into an error of terminology when he said that the first issue before him was whether the property in dispute was stool property of the Odole or was ‘Odole family property’, since this issue is made clear in paragraph 4 of the Statement of Claim and replied to in paragraphs 3 and 4 of the Statement of Defence. Paragraph 4 of the Statement of Claim reads:
‘4. The said farmland is the Chieftaincy property of Chief Odole and the ownership thereof is vested successively in every person installed as Chief Odole.’
Although the terminology stool property is hardly used in Nigeria, it is clear that what was meant by this paragraph are the words stool property used by the learned Judge.
Paragraphs 3 and 4 of the Statement of Defence are as follows:-
‘ 3. The defendants state that the land in dispute is Odole family land but the ownership of the land is never vested in any single person installed as Chief Odole.
4. The defendants further state the ownership of the said land is collective or joint and is vested in all members of Odole Chieftaincy Family.’
The terminology used by the learned Judge for the defendants description is ‘Odole family property’. We have no doubt that the Judge meant Odole Chieftaincy Family property which are the words used by the defendants themselves.
It seems clear, therefore, that the parties themselves have created a distinction between ‘stool land’ and ‘the chieftaincy family land’. We are in no doubt that the distinction exists as borne out by the evidence of witnesses in the Court below. The third witness for the plaintiff/respondent said: ‘ I know what is stool property and I know what is chieftaincy family property’ .
In Oyekan v. Adele 14 W.A.C.A. 209, Verity, C.J., after defining at p. 213 the nature of estate or interest vested under Native Law and Custom in a chief, at page 214 said- .
‘It would appear, therefore, that the estate or interest vested in the ruler in royal estates or stool land is to be distinguished on the one hand from land vested in him beneficially as absolute owner alienable by him at will, and on the other hand land vested in himself and his family beneficially and of which the Chief or head of the family is sometimes referred to as a trustee.’
It is difficult to say, therefore, that no distinction exists between ‘stool land’ and ‘Chieftaincy family land’.
We have referred earlier to some proceedings in the Native Court (Exh. B) and the Governors Court (Exh. B1) and the judgements in the case. The land litigated upon then is the land now in dispute, although the action was for rent. The land, however, was held by all Courts to be ‘chieftaincy land’; the isakole or rent was held due to the Odole (the present Respondent) as head of the family, but he was (in the judgement) reminded-of his obligations to the family, of which the present appellants are members.
It is to be observed that the respondent in his evidence in the High Court stated that the Chieftaincy Family has no land whatever and that the seven farmlands, which both sides admitted are in existence, belong to him as stool land, and that he alone is entitled to farm there or put tenants on the land and collect rents, with the only obligation of utilising a portion of the rent in feasting members of the family during two distinct festivals. The distinction, therefore, it would seem, between stool land and chieftaincy family land is that whilst the Chief has the complete use of stool land as he pleases, in the case of chieftaincy family land members of the family can farm on some portions of the land with the chief’s consent; and where family land is given out to tenants, members of the family are entitled to some portion of the rent collected. It may not be out of place to mention here that in Lagos, when chieftaincy family land is sold or acquired or leased out tenants, it is the practice, which has been accepted by the Courts, for one third of the purchase price, or the amount paid as compensation on acquisition or as rent, to go to the Chief, a third for the upkeep for the stool expenses and the remaining one third is distributed among members of the family.
Having set out the distinction stool land and chieftaincy family land, we now come to consider why the trial Judge held that the land in dispute is stool land. Having found that there is overwhelming evidence “that the Owa of Ilesha gave this property (land in dispute) to one of his subordinate Chiefs, the Odole, after the latter’s installation”, the learned Judge proceeded that as this is properly acquired after a chief’s installation, the property becomes “stool land”. Reference was made to Ghana customary law in this respect and qualification which have been made to this rule in Yamuah IV v. Sekyi 3 W.A.C.A 57. The learned Judge then proceeded to say as follows:-
“The qualification need not crave our attention here. I have no doubt that in Nigeria and in particular the Western Region of Nigeria with which we are here concerned properly acquired by a Chief while on stool, provided it is not acquired with funds from his own personal estate which should be ‘earmarked’ before he comes on the stool, is stool property. While he is on stool his title as Chief is in the forefront and his individual capacity is relegated with the result that property given to him while a Chief is so given to him because of the position he holds unless the contrary is specifically made clear.”
With respect to the learned Judge, we find it difficult to accept that this is the customary law of Western Nigeria without evidence of that effect. Native law and custom is a question of fact and has to fact and has to be proved. Also, it is a well known fact that in recent years customs have changed rapidly in Nigeria, and what was custom twenty years ago has ceased to be the Custom of the people. The existence of this particular custom cannot, in our view, be taken for granted. In former times when a chief was the effective ruler of the area of chieftaincy he obviously had to have the means of meeting the expenses of government, as well as looking after his family. There were no salaries then attached to the chieftaincies and all these expenses had to be borne from income derived from what is now known as “Stool Land”. But now the functions of a chief are mainly ceremonial and salaries are paid to them for the maintenance of the dignity of their office and for the care of their families, while local governments are responsible for the day to day expenses of administration. It is difficult therefore for the Courts to assume that property acquired by a chief while on the Stool from his own personal salary can be considered as Stool property without evidence that the custom to which the learned Judge referred is still in existence in Western Nigeria, if it ever existed. Indeed the Courts are not bound to regard the findings in such cases as binding or as a precedent, but nevertheless the courts derive some help from evidence given in such cases.
Although this was not argued before us or in the Court below, it may be a matter for consideration of the Court, possibly after hearing evidence on the point, whether the question of ‘Stool Land’ is applicable in the consideration of estates or interests of subordinate chiefs as in the present case.
For the aforesaid- reasons, we are of the view that this case must be sent back for a retrial on the issues raised. The appeal is therefore allowed. Judgement and order made in the Court below are hereby set aside and it is ordered that the case be heard de novo.
Costs of the appeal in favour of the appellant assessed at thirty-five guineas. Costs in the Court below to abide the determination of the case in that Court.
Other Citation: (1964) LCN/1171(SC)
