Real
property-Communal tenure in
customary law-Onus to prove that
one section only of a town
is owner.
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 had been collected for
the community as a whole, until
recently, when defendantt cut
out the plaintiffs. The
defendant alleged that each
quarter had 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; he 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 hold in common the major
part of the land in dispute but
it was impossible for the whole
town to hold land in common-that
there was no community of the
town but each quarter was a
community.
Held: It was
right to presume as matter of
customary law that the land
belonged to the community as a
whole; the onus was on the
defendant to establish that his
section had a title to the
exclusion of the community as a
whole but he failed.
Case cited:-
(1) A modu
Tijani v. Secretary,
Southern Provinces, Nigeria,
1921, 2 A .C. 399.
Appeal by
defendant: No. 3693.
G. C. M.
Onyiuke for Appellant.
C. D.
Onyeama for Respondents.
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) (c) 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 Akufarmers 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 he alleged that
each quarter had its separate
land. He did not allege the
title of his section or quarter
to the land but contented
himself with the traver-OO of
the plaintiffs' claim.
Put shortly
the plaintiffs proved that the
land in questioa 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 had granted
portions of the land to
strangers, that the rents had
been collected for the community
as a whole but that in latter
years
[pg 61]
the defendant
<J/:::me 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
Ibite and Ezi sections. Th~ Ezi
section is subdivided into four
quarters, the Ihe, 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 occupatiou
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 receive{ by
him or his predecessor from
tenants on the land with the
other section, namel) the Eze
section of the Nze.
The learned
trial Judge considered the two
issues, firstly, whether the
Ibitl section had the right to
put tenants on the land and
obtain rents to the exclusion of
the Eze section, and secondly,
if the Ibite section were not so
entitled, die the defendant in
fact place Aku tenants on the
land during the 1947, 1948 and
1949 farming 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 this 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
A modu Tijani ' Secretary,
Southern Provinces, Nigeria
(1), the relevant passage is as
follows:-
" Land
belongs to the community, the
village or the family, never to
U individual. All the members of
the community, village or family
have a equal right to the land,"
and later,
the Lord Chancellor went on:-
" This is
pure native custom along the
whole length of this coast, a!
whenever w(' 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 gene!
principle it has been applied in
numerous cases and in
postulating, as the learn Judge
did, that the land belongs to
the community and then, in
deciding on t: evidence in this
case, that it belonged to the
Nze community, he was not
departed from the principles of
Native customary tenure.
The plaintiff
in his evidence testified that
in their lives, his father
before hi 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 t defendant after the death
of their fathers had collected
the rents up to the YE 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 al 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!
support his contention and that
his witnesses, three of whom had
identifi themselves with the
defendant, could not be
accepted. Those three witness:
were from. the Amutu and Agbara
quarters of Nze and the learned
Judge to the view that owing to
the influence of the lefendant,
they were prepared say contrary
to the fact that each quarter
kept the rents received from
tenant 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
sect
[pg62] could for some
reason own in common the major
f9trt of the land in
dispute, it is impossible for
the whole community of Nze to
hold 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 he 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.
