Julie Nezianya And Anor Vs Anthony Okagbue And 2 Others (1963)

LawGlobal-Hub Lead Judgment Report

ADEMOLA, C.J.N.

This is an appeal from the judgement of Reynolds, J., in the Onitsha Division of the High Court of Eastern Nigeria.
In that Court the plaintiffs/appellants claimed as against the defendants/ respondents that they are entitled to the exclusive possession of a piece of land at 9 James Street, Onitsha, and for an injunction to restrain the defendants/respondents, their agents, servants, heirs and successors from entering the land or interfering in any way with the plaintiffs’ possession.
The land is situated at Onitsha. It is not in dispute that the parties are natives of Onitsha and that they are bound by the customary law of Onitsha people in Eastern Nigeria.
The land originally belonged to one Ephraim Agha who in 1895 married one Mary Menkid under the Christian form of marriage. Ephraim had an uncle (a brother of his father) by the name Okagbue. The three defendants/respondents are descendants of Okagbue. Ephraim and Mary lived on a portion of the land in dispute. When Ephraim took to himself another woman, Mary left him and lived separately. There was a child of the marriage between Ephraim and Mary; she was called by the name Josephine. Josephine died leaving two children (both female) who are the present plaintiffs. On the death of Ephraim in 1909 Josephine was a child.
Mary had the care of her daughter Josephine. She did not move back to her husband (Ephraim’s) house on his death; she, however, went into possession by letting the house to tenants. She later sold a portion of the land to one Ude. It was said that she tried to sell more but the relatives of Ephraim (the respondents) protested and she desisted. Mary, however, with the proceeds of the sale, built two mud houses with grass roofs on some portion of the land and let them out to tenants collecting rents. No more than a month at any time was collected as rents on each of these two houses. Mary looked after Josephine and educated her. It would appear that when Mary tried to sell more land that a quarrel arose between her and members of Ephraim’s family who protested that she had no right of alienation. This resulted in a court action in the Native Court. Mary died during the pendency of the case and eventually the present action was instituted by Mary’s grand-daughters (the plaintiffs) against the defendants. Mary in her will devised the land in dispute to her two grand-daughters, the plaintiffs.
The defendants contested the case on the ground that under Onitsha Native Law and Custom Mary could not, at any time, have succeeded to the real properties of her husband Ephraim; that if Ephraim died without a male issue, his real properties descended to his family or relatives.
The learned Judge who heard the case found for the plaintiffs on the facts, but followed the Native Law and Custom of Onitsha and held that on the death of a husband “possession by a widow of the husband’s land can never be adverse to the rights of the husband’s family as to enable her to acquire an absolute right to possession of it against the family”. From that judgement Mary’s grandchildren (the plaintiffs) have appealed.
Mr Ikpeazu, for the appellants, it would seem does not seek to query the wisdom of the Native Law and Custom of Onitsha people on this point. In fact he admitted it; it was wrong, in the view of the people of Onitsha, that the real property of a man who died without a male issue should go to his female issue who, on her marriage, would carry the property to her husband’s family: it is right, the custom postulates, that the property should remain in the man’s family to the exclusion of the female issue. It is said the daughter in such a case has a right to live in the house with the consent of the father’s family.
For the appellants, it was strenuously argued before us that Mary (deceased) could in equity defeat the claim of her husband’s family to the property by the doctrine of long possession. At the time she went into possession, it was submitted, it was without the consent of the defendants or any member of the family: as such her possession was adverse. She continued to deal with the property for many years, as owner, without any interference by any member of her husband’s family. She therefore had acquired prescriptive right over the property and was in a position to defeat the family’s claim. In the circumstances Mary’s disposition of the property by will to the plaintiffs was valid and the property could not now be claimed by her husband’s family. Such were the arguments put to us by Counsel for the appellants. The argument raises two issues::-
(i) Whether under Native Law and Custom a prescriptive right can be acquired to land, and
(ii) Whether, under the Native Law and Custom of Onitsha, a wife could become the owner, by virtue of adverse long possession, of her deceased husband’s property.
In other words can Mary’s possession be an adverse one as against her husband’s family
The answer to the first question is to be found in the long line of cases decided in our Courts. On the first issue it was submitted that the Court should not give effect to the rules of Native Law and Custom since the family of the respondents have acquiesced in Mary’s possession of the land for so many years. Sec. 22 (1) of the High Court Law of Eastern Nigeria was referred to. This empowered the Court to administer and due effect to Native Law and Custom, especially in cases relating to tenure of land, but provided that such Native Law or Custom is not repugnant to the principles of natural justice, equity and good conscience. In the case of Akpan Awo v. Cookey Gam 2 N.L.R. 100 the Court refused to give effect to Native Law and Custom by allowing a claim of title to land as against possession which has been acquiesced in for an adequate period of time.
The same principle was enunciated in Sulernan and Anor. v. Johnson 13 W.A.c.A. 213: Verity, Ag. P., at p. 214 of the report in that case said:
“In these circumstances there can be no doubt, in my view, that neither the Oloto family nor anyone claiming through them would be enabled by this Court to recover possession on the principle established in Akpan Awo v. Cookey Gam, followed in many cases ever since and approved by the Judicial Committee of the Privy Council in Oshodi v. Balogun and others”
This principle has been followed in so many cases of which the following are but a few:
Fiscian v. Nelson and Anor. 12 W.A.C.A. 21.
Caroline Morayo v. Okiado and 4 Others 15 N.L.R. 131. Saidi v. Akinwunmi 1 FSC 107 at p. 110.
In Oshodi v. Balogun and Others 4 W.A.C.A. 1, however, a distinction was shown between acquiescence in occupation over a period which would bar the original overlord from bringing an action for ejection, and acquiescence as would serve to pass the original rights of the overlord to the occupier. It seems to us that this distinction is to be kept in mind when dealing with cases where rights of reversion are in question, or where, as in the present case as will be shown later, possession of family land was acquired by one qua member of the family and with the consent (actual or implied) of the family.
We now come to consider the second question, namely whether under Native Law and Custom of the Onitsha people a wife of the deceased member of a family could become the owner by virtue of long possession of the property of her deceased husband, which she occupied with the knowledge of the family, or by adverse possession
It would appear that the essence of possession of the wife in such a case is that she occupies the property or deals with it as a recognised member of her husband’s family and not as a stranger, nor does she need express consent or permission of the family to occupy the property so long as the family make no objection to her occupation. The Judge in the court below had the benefit of the evidence of a senior Chief in Onitsha who gave evidence as an expert on the Native Law and Custom of the Onitsha people. From the evidence of this witness it is abundantly clear that a married woman, after the death of her husband, can never under Native Law and Custom be a stranger to her deceased husband’s property; and she could not, at any time, acquire a distinct possession of her own to oust the families rights of ownership over the property. The Onitsha Native Law and Custom postulates that a married woman, on the death of her husband without a male issue, with the concurrence of her husband’s family, may deal with his (deceased’s) property; her dealings, of course, must receive the consent of the family. The consent, it would appear, may be actual or implied from the circumstances of the case, but she cannot assume ownership of the property or alienate it She cannot, by the effluxion of time, claim the property as her own. If the family does not give their consent, she cannot, it would appear, deal with the property. She has, however, a right to occupy the building or part of it, but this is subject to good behaviour.
In the present case, it is clear that the possession of Mary, the plaintiffs/ appellants’ ancestor, cannot be regarded as adverse. She occupied the land by virtue of her relationship (as a wife) to the family of the respondents, and her possession can never be adverse to the rights of her husband’s family and she cannot, however long she was in possession of the land, acquire an absolute right to possession of it as against her husband’s family. Her descendants therefore can make no claim to the land.
Counsel for the appellant does not dispute the Native Law and Custom which has been pleaded and proved in this case: he merely argued that the possession by Mary, the appellants’ predecessor in title, was adverse and was therefore not bound by the Native Law and Custom propounded. We share the views of the learned Judge that Mary’s possession can never be adverse to the rights of ha husband’s family, and those who claim through her are affected or bound by this. The claim against the family cannot, therefore, succeed.
This appeal must therefore fail and it is dismissed with costs assessed at 35 guineas.

OTHER CITATIONS: (1963) LCN/1033(SC)