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Land-Grant under Native Customary Law-Subsequent leases by grantor to European firms----claim b;1f grantees to share of rents.

Plaintiffs, alleging that they were the grantees under Native Customary Law of certain lands extending to the beach at Atimbo on the Qua River, which had, subsequently to such grant, been leased by defendants to European firms, claimed two-thirds share of the rents from such leases. Defendants alleged (1) that such portions of the lands as were "beach lands" could not be the subject of such a grant, and (2) plaintiffs at most are entitled to £10 a year only by virtue of an agreement alleged to have been made by the Head of plaintiffs' family.

Held: (1) Defendants' contention that "Beach lands" could not be subject of grant overruled in view of judgment of Divisional Court in 1915 holding" permission to use the land extended to the beach."

(2) Defendants not entitled to grant leases, but plaintiffs having adopted the leases are entitled to an equitable share of the rent.!.

(3) Matter not affected by alleged agreement.

(4) Such share fixed at two-thirds.

C. W. Clinton (J. C. Zizer with him) for Appellants.

S. B. Rhodes (G. F. Dove-Edwin with him) for Respondents.

The following joint judgment was delivered:-

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND WEBB, C.J., SIERRA LEONE.

The plaintiffs and appellants, who sue on behalh of the family of Obong Egbo Archibong IV, say that certain lands at Atimbo on the left bank of the Qua River were granted in accordance with native law and custom to their predecessors in title by the predecessors in title of the first defendants, and the first defend­ants having leased one portion of the said lands to the defendants, Paterson Zochonis and Company, in 1919 and another portion to the defendants, the Nigerian Properties Company, in 1934, the plaintiffs as occupiers in possession claim to be entitled under native law and custom to two-thirds of the rents received by the first defendants from these lessees.

The first defendants, the respondents, admit that they made the leases mentioned but they say that the plots comprised therein do not form part of the lands g-ranted to the plaintiffs' predecessors, which, according to them, did not extend to the bank of the Qua River, and they say that by native law and custom it would not have been competent for their predecessors to have made a grant of " beach lands," i.e. lands having a water frontage. They now admit, however, that the plaintiffs are entitled to some share, to be determined by agreement, in the rents received by them, and, as regards the lease to Paterson Zochonis and Company, they say that all that the plaintiffs are entitled to is the sum of £10 a year in virtue of a document (Exhibit H) dated 25th October, 1915, signed by Eta Akpo on behaH of the Chiefs and people of Akim Town in favour of Chief Archibong Egbo Archibong IV, which sum is said to have been received by the latter annually up to his death in 1931. The learned Judge accepted the contentions of the respondents and gave judgment declaring that the appellants are entitled to £10 per annum in respect of the lease to Paterson Zochonis and Company (but without specifying from what date) and as regards their share of the rent paid by the Nigerian Properties Company, he said "what, if anything, the plaintiffs are entitled to I am unable to find: it is a matter for agreement between them, and they may still come to terms." From this judgment the plaintiffs have appealed.

The questions in issue were, in our opinion, firstly whether or not the lands comprised in the two leases formed part of those granted to the prede('essors of the appellants; secondly, whether the agreement made between Eta Akpo and Archibong Egbo Archibong was made by the latter on his own behalf or as trustee for his family; and, thirdly, if the appellants are entitled to a share in the rents, what that share should be.

In our opinion the first point is determined by the judgment of Webber, J. (as he then was) given in 1915 in an action brought by Eta Akpo, the predecessor of the respondents, against Archibong Egbo Archibong, the predecessor of the appellants, claiming, in consequence of lettings or agreements for lettings, made by the Archibongs, a declaration of title, damages and the cancellation of the agreements.

In his judgment Webber, J. said: "It is clear and beyond doubt that the land was given to the defendant and his people to farm on, and it" seems also clear that the permission to use the    land extended to the beach   and in the present case the learned Judge says: "I am unable to distinguish the land now in question from that which was in question before Webber, J. in 1915." The contention of the respondents that the lands comprised in the leases made by them do not form part of those granted to the predecessors of the appellants but are what they call " beach lands" therefore fails.

If so it follows that the respondents were not entitled to lease to Paterson Zochonis and Company and the Nigerian Properties Company portions of the land which had already been granted to the appellants. In the case of a letting by a grantee to a stranger, whilst the strict rule of native law and custom is that such a letting entails forfeiture, in practice the Courts grant relief against such forfeiture usually upon the terms that the letting shall hold good and the grantee shall pay over to the grantor a proportion of the rent received, usually though not necessarily one-third. But no instance has been brought to our notice of a letting like those in the present case by the grantor, or his successors in title, in derogation of the grant made by him, and it may well be that the grantee, or his successors, would be entitled to treat such a letting as absolutely void. However in the present case it is not necessary to give an opinion upon this point because the appellants, in effect, acquiesce in and adopt the leases but claim to receive an equitable share of the rents derived from them. We are of opinion that their claim cannot properly be based on native law and custom (as pleaded in paragraph 8 of the Statement of Claim), but that it should rather be regarded as one for money received by the respondents for the appellants' use.

The next point to be considered is the nature and effect of the agreement made with Archibong Egbo Archibong regarding the apportionment of the rent of the plot leased to Paterson Zochonis and Company. This agreement is not relied upon in the defence filed by the respondents, nor were the appellants' witnesses asked about it, although Mr. Clinton, in opening their case said: " After the death of Archibong, first plaintiffs' predecessor, we found a document to the effect that he had accepted a pension of £10 per annum conditionally on " Good Conduct. The plaintiff family were not privy to this." Two of the witnesses called by the respondents were cross-examined by Mr. Clinton on the subject: Ekon Nyong Ekong merely said "I don't know that Ntoe has paid £10 to Archibong" and Tom Agbo Eta said " I don't know that Ntoe paid Archibong .£10 per annum to stand out of the matter-if he did he did it without the knowledge of the township. During the late Ntoe's time At:chibong Egbo Archibong was paid .£10 per annum to keep him quiet: to be in peace with us," and thereupon a letter dated 14th January, 1936, from Ntoe Eteta Ita to Offiong Egbo Archibong, referring to this payment as " dash of .£10 " was put in evidence. After counsel on both sides had addressed the Court, and when the Judge was about to deliver judgment, counsel for the respondents produced a jud~ment, dated 18th November, 1919, in favour of Archibong Egbo Archibong for arrears of the .£10 payable to him. Mr. Clinton again argued that the agreement had been made by Archibong Egbo Archibong personally and asked to be allowed to call evidence on this point. The learned Judge refused to hear such evidence on the ground that" manifestly the plaintiffs are not taken by surprise, as they pretended to be, by A. E. Archibong's acceptance of £10." We consider that the learned Judge was wrong in refusing to hear this evidence: it is true that the appellants were not taken by surprise as to the fact of the £10 having been received, indeed it was their counsel who had mentioned it, but they were obviously taken by surprise when the agreement was relied upon, at the very end of the case, as one binding upon them, when the case throughout had been fought on the basis that they were entitled to nothing, because the plots leased formed no part of the lands granted to them; and were it not for the view we take as to the effect of the document relied upon by the respondents on this point, we should be compelled to send back the case for the evidence to be taken. These documents (Exhibits Hand J) are both signed by Ntoe Eta Akpo. The first dated 25th October, 1915, is as follows:- To take effect from .July 26, 1918 date of original Agreement " translated into English baring this date. To take effect from .July 26, 1918 date of original Agreement " translated into English baring this date.

" In consideration of the labour for Atimbo land plantation, which "I observed being performed, I the undersigned for myself, "Chiefs and people of Akim Town, in the Protectorate of "Nigeria, do hereby agreed to pay to Chief Archibong Egbo " Archibong IV, the sum of ten pounds (£10) annually during "the period that the firm of Messrs. Paterson Zochonis and "Company, Limited of Calabar, will carryon business at " Atimbo plantation. Should any of the successor of the said "Chief Archibong Egbo Archibong IV, do not recognise the " people through their representative as the owner of Atimbo "land, I shall or my successor exonerated from paying the " sum agreed upon to such successor of Chief Archibong Egbo " Archibong IV.

"IN WITNESS WHEREOF I have hereto set my hand this " 25th day of October, 19]f.i

                   His

                                                                         ETA AKPO                      X

                    Mark.

Head Ohief or Ntoi of Akim.

To take effect from .J lily 26, 1918 date of original Agreement " translated into English baring this date.

The second, dated 7th June 1918, states:­" Akim Qua Town, Calabar, 7th June, 1918.

" I, Chief Eta Akpo, on behalf of myself and others of Akim do " hereby authorise that out of the annual rent of (£40) forty " pounds payable by Messrs. Paterson Zochonis and Company  to us in respect of the Atimbo beach, the sum of (£10) ten ., pounds be paid each year by the firm direct to Archibong •. Egbo Archibong IV. This payment is to be made every year ,. direct to the said Archibong Egbo Archibong IV by the " firm of Messrs. Paterson Zochonis and Company so long as "they are occupying the Atimbo beach. The reason for "authorising this yearly payment of the rent of (£10) ten " pounds to the said Archibong Egbo Archibong IV is not that " he is entitled to it by right but on account of his bringing " the firm of Messrs. Paterson Zochonis and Company to the " Atimbo beach and also by reason of his good behaviour. In "the event of his death his successor will still be receiving "this rent yearly payment provided that he (the successor) •• behaves in a satisfactory manner as Archibong Egbo " Archibong is behaving but not otherwise .

.. The said Archibong Egbo Archibong IV will start getting thi. " sum of (£10) ten pounds from lst January, 1919.

His

                                                                NTOI ETA AKPO   X

Mark. on Id. postage stamp."

These two documents are relied upon as proving that out of the rents paid by Paterson Zochonis and Company the appellants are entitled to £10 per annum and no more, because Archibong Egbo Archibong, " as trustee to arrange with the landlords for the best terms he could get" (to quote the words of the judgment appealed from), had so agreed on their behalf. In our opinion the documents cannot be so construed. The respondents now say that they limit and define the extent of the appellant's rights, but in fact the one impliedly and the other expressly denies that they have any right at all: Exhibit H. says: "Should any successor of the said Chief Archibong Egbo Archibong IV do not recognise the people through their representative as the owner of Atimbo land, I shall or my successor exonerated from paying the sum agreed upon ............ ", and Exhibit J: "The reason for authorising this yearly payment .............. to the said Archibong Egbo Archibong IV is not that he is entitled to it by right .... " In our opinion the wording of these two documents, even if they were drafted by laymen, exactly confirms what the respondents' witness, Tom Agbo Eta, said: "During the late Ntoe's time, Archibong Egbo Archibong was paid £10 per annum to keep him quiet. "

The learned Judge also relied on the fact that" the agreement (Exhibit H) was witnessed by, among others, one Egbo Archibong, who, I am satisfied was a member of plaintiffs' family We can