Michael Chigbu Awgu V. Joseph Gladstone Nezianya For Himself And on Behalf Of The Children Of The Family Of Moses Adolphus Nezianya (1949)
LawGlobal Hub Judgment Report – West African Court of Appeal
Claim for cancellation or rectification of lease of alleged family land grantedby an individual—Native law and custom—Self-acquired property.
Where property is acquired by gift to an individual apart from the rest of the community he has an unfettered right to dispose of it during his lifetime or by will.
The weight of the evidence in this case pointed to the conclusion that the land in question was the absolute property of the donee who had the unfettered right of disposition during his lifetime or by will without the consent of the members of his family.
Case referred to:
(1) Codjoe S Others v. Kzvatchey 6, Others, 2 W.A.C.A. 371.
Appeal from the Supreme Court of Nigeria.
Mbanefo for Appellant (first defendant below).
Taylor for Respondent (plaintiff below).
The following judgment was delivered:
Verity, C.J. In this case the plaintiff on behalf of himself and the other children of M. A. Nezianya (second defendant below) claimed cancellation or rectification of a lease for ninety-nine years of certain land situate at Onitsha granted to the appellant by the second defendant on the ground that the land in question is family land and according to native law and custom cannot be alienated without the consent of the eldest son and other members of the family.
The learned trial Judge upheld the plaintiff’s contention and set aside the lease. The appellant (first defendant below) has appealed.
It appears that in the first instance the second defendant, with at least the tacit assent of the respondent (plaintiff below) let a portion of the land (marked yellow on a plan exhibited in evidence) to the appellant, but subsequently without the consent of the respondent or other members of the family signed a lease of the whole of the premises shown in the plan for a period of ninety-nine years, including in the lease an area (marked green on the plan) alleged previously to have been granted to a third party and another area occupied by members of the family.
Two questions were argued at the hearing of the appeal:—
- Did the second defendant acquire the land in the first place as an individual or on behalf of himself and his family?
- If he acquired the land as an individual was anything done subsequently to change the character of the holding?
As to the first question the learned trial Judge, in our view, misinterpreted the evidence of Ekwerekwu, who stated that ” my father and Agha gave it to second defendant for himself “. The words ” for himself ” are pregnant. It is true that under cross examination this witness added ” and after him his family will succeed “. But this is not inconsistent with the land being his personal property during his lifetime; it being a well established principle approved by this Court in-a number of cases that, as said by the learned author of Redwar’s Comments
on the Gold Coast Ordinances, where property is acquired by gift to an individual apart from the rest of the community he has an unfettered right to dispose of it during his lifetime or by will, although ” upon the individual owner’s death intestate it is held that the property then becomes impressed with the character of joint family property “. The second defendant himself states that the original owners gave the land to him, and although he adds ” I got the land purposely for my family “, it is to be remembered that by his defence he seeks to evade liability under the lease, and we do not consider that the purpose for which he now alleges he accepted the gift can affect the character of the original grant. • In our view, therefore, the land was originally given to the second defendant in his individual capacity and became thereupon property of which he was the absolute owner.
In regard to the second question there is the evidence of the respondent that the second defendant distributed the land in portions to members of the family, and the admission by the appellant that the second defendant told him he would consult his family and later said that he had done so. There is also evidence that members of the family settled upon the land and some built houses there. None of this evidence can be considered as conclusive, however, more especially bearing in mind the view of Deane, C.J., in Forster Okai v. Kwame A sari & Others referred to with approval by this Court in Codjoe & Others v. Kwatchey & Others (1): ” self acquired land is not turned into family land by the owner of the land being kind enough to allow some of his family to live on the land and enjoy the use of it “.
Although the principles of native law and custom to which we have referred are, in the specific instances cited, applicable expressly to the law and custom of the Gold Coast they are nevertheless equally applicable as general principles to the law and custom of Nigeria, a departure from which can only be justified if it is established by evidence that the native law and custom in any particular area differs from the general principle. Unless, therefore, the evidence in this case establishes such a variation it is clear not only that the land in question remained the absolute property of the second defendant but that his right of disposal during his lifetime is unfettered.
Counsel for the respondent argued that in this regard the native law and custom of Onitsha differs from the general rule in that, even in the case of self-acquired property as distinguished from family land, the consent of the eldest son and members of the family is essential to a valid transfer of interest therein to a stranger. In support of this contention he referred to the evidence at the trial of two expert witnesses. On the other hand, counsel for the appellant referred to the evidence of six other expert witnesses to the contrary. The learned trial Judge did not disbelieve these witnesses, although he referred to the fact that one of them could not be considered entirely disinterested. He did no more than hold from the weight of this evidence that family land in Onitsha cannot be transferred without the family’s consent, and in view of his finding that this is family land did not touch upon the position of self-acquired property, in regard to which the great majority of the expert witnesses expressed the view that such consent is not necessary, a proposition which is in accord with the general principles of native law and custom throughout West Africa to which we have referred.
The weight of the evidence in regard to both aspects of the matter leads us to the conclusion that the land in question was the absolute property of the second defendant over which he had the unfettered right of disposition during his life time or by will and that he had therefore the right to grant a lease thereof or of such part thereof as remained undisposed of, without the consent of the plaintiff or other members of his family.
This, however, does not dispose of the ease; for by paragraphs 6, 7, 8, 9 and 10 of the second defendant’s defence an issue of fraucris raised, an issue adopted by the respondent in paragraph 12 of his statement of claim. This issue was not decided by the Court below nor was it argued at the hearing of the appeal. Although there is on the record, an abundance of evidence on this issue, it raises issues of fact, the determination of which depends largely on the credibility of witnesses, and questions of law which were not fully argued before the trial Judge nor raiseti at all in the appeal. A further question arises, moreover, as to the alleged earlier disposition to one Aghadiuno of a certain portion of the land, which, if established, would- necessitate its exclusion from any subsequent lease.
It is not, we think, open to this Court to determine these issues of fact upon which there have been no findings by the Court below or the questions of law, which, in the absence of such findings, could not be argued before us. We are of opinion, therefore, that the case should be remitted to the Court below with directions that the learned Judge who heard the case should further consider the evidence taken by him, in the light of the decision of this Court as to the character of the land and the right of the second defendant to dispose thereof, with a view to determining the issues raised by the defence of the second defendant to which we have referred and which were adopted by the plaintiff: that to say, whether the execution of the lease of the whole property for a term ninety-nine years was secured’ by fraud, or if not whether the minds of the parties were ever ad idem as to the terms of the lease or whether the seconc, defendant executed the same under a bona fide mistake of fact as to the identity of the terms contained in the formal document with those to which he had agreed prior to its execution.
In accordance with his findings on these issues the learned Judge would enter judgment cancelling, affirming or rectifying the lease as the case may be, and in the event of non-cancellation thereof he would further determine whether or not there was such previous disposal of a part of the property to Aghadiuno as may require rectification of the lease in such event.
Appeal allowed and case remitted to the Supreme Court on issues not dealt with on the appeal.
