JONAH AGBO & ORS (APPELLANT)
GEORGE UGWU & ANOR (RESPONDENT)
(1977) All N.L.R. 287
Division: Supreme Court of Nigeria
Date of Judgment: 21st October, 1977
Case Number: SC. 72/76
Before: (Fatayi Williams, Bello, Obaseki, JJ.S.C)
The plaintiffs (herein the respondents) claimed in the High Court of the East Central State, now High Court of Anambra State for a declaration that the piece of land known as Achara Ukwu is the communal land of the respondents as well as the appellants who constitute Ishiagu Umuaniebo family. They also claimed an order of injunction against the appellants who were dealing with the land without the authority of the family.
The appellants while admitting that the land is the communal property of Ishiagu Umuaniebo family denied the claim of the respondents to membership of the family. They also denied their competence to sue as representative of that family. The main contention of the appellants was that they were Amadis (Freeborn and land owning class) while the respondents belong to the class known as Awbias (Strangers) and that by their custom the Awbias cannot own land in Awkunanaw.
The trial Judge held that the contention of the appellants were not established, he therefore granted the declaration and order of injunction claimed. The appellants were dissatisfied with this judgment; they therefore appealed to the Supreme Court.
(1) The finding of the trial Judge that the plaintiffs and the defendants are members of the main Ishiagu Umuaniebo family although they might belong to different sections of the family is perfectly justified in view of the symbiosis between the two and the pattern of growth resulting in the vesting, in part, of the control of, the use of, and the disposal of the land in a Nine-man committee, three of whom were Awbias, and the appointment of the 1st plaintiff by the family as one of the two trustees operating the Bank account opened for the proceeds of sale and other dealings with the said land in dispute.
(2) Even if in times past the Awbias were strangers, there is no evidence that they are still regarded as such. There can be no better evidence of their interest in the land than the position accorded them in the control of not only the land but also the funds of the family.
(3) The law is now well established that any member of the family can, if the head of the family fails in his duty to protect family land, institute an action on behalf of the family to protect family interest in land.
Chief F.R.A. Williams
(With him A.O. Mogbo Esq and G.C. Nzegwu Esq) for Appellants
Chike Ofodile Esq for Respondents
Case referred to:-
(1) Sogunle & Ors v Akerele & Ors (1967) N.M.L.R.68.
Obaseki, JSC:-the proceedings from which this appeal arose were commenced in the Enugu Judicial Division of the High Court of the East Central State now High Court of Anambra State on 31st December, 1971.
In that Court, the claim, in its final amended form as set out in paragraph 16 of the Statement of Claim, was for
(1) A declaration that the piece or parcel of land known as and called Achara Ukwu which is situate at Awkunanaw in this Judicial Division and verged pink in plan No. E/GA 140/72 is the communal property of the plaintiffs and the defendants.
(2) Perpetual Injunction to restrain the defendants, their agents and assignees from disposing of any portion of the said land either by sale, lease, mortgage or in any other manner without the written consent of the plaintiffs.
Pleadings were ordered and duly delivered, and after hearing evidence, the High Court (Phil Ebosie, J.) delivered a considered judgment in which he reviewed the evidence at length and found in favour of the plaintiffs as follows:
"In conclusion, I find as a fact that the plaintiffs and the defendants are members of the main Ishiagu Umuaniebo family although they might belong to a different section of that family. I also find as a fact that the parties communally own the land in dispute. It is my view that the defendants are disputing this joint ownership purely on ground of greed as land in and around Enugu is becoming of very high commercial value.
There still remains however the issue as to the authority of the plaintiffs to bring this action. I think that there is in this case a similar situation as in the 1959 case in the present one. Here the Ishiagu Umuaniebo family is again divided into two factions; the defendants and their followers, who now claim to the only land owning class on one side, and the plaintiffs and their followers now described as Awbias without any right to land on another side. The plaintiffs then did not as in this case represent the whole owners of the land. Palmer J. in his judgment of 1959, said that such a situation did not prevent the plaintiffs in that case from maintaining an action in respect of family land.
Onyeama, J.S.C. (as he then was) confirmed this view in the case of SOGUNLE AND OTHERS v. AKERELE AND OTHERS (1967) N.M.L.R. page 58.
As I am satisfied that the plaintiffs are the joint owners of the land in dispute, there will be judgment for the plaintiffs as per the amended writ. I make the following order:
(1) that the piece and parcel of land known as and called Achara Ukwu which is situate at Awkunanaw and verged pink in plan E/GA.140/72 is the communal property of the plaintiffs and the defendants in this case;
(2) the defendants, their agents and assigns are hereby restrained from disposing any of the portion of the said land either by sale, lease, mortgage or in any other manner without the written consent of the plaintiffs."
The defendants being dissatisfied with the judgment have appealed to this Court to set it aside and dismiss the plaintiffs' claim.
The only ground canvassed before us is the omnibus ground dealing mainly with the facts of the case and it reads:
"the judgment of the learned trial Judge is against the weight of evidence"
Chief F.R.A. Williams, learned Counsel for the appellants while conceding that there was no issue as to the land in dispute being the communal property of Ishiagu Umuaniebo family, contended that the issues raised in the pleadings and the evidence were, firstly, as to the membership of the named plaintiffs of Ishiagu Umuaniebo family and secondly, as to the authority of the plaintiffs to bring this action in a representative capacity i.e. on behalf of members of Umuaniebo family against the 6 defendants including the (4th defendant who is the head of Umuaniebo family).
It is therefore pertinent to examine the pleadings (and see the issues raised), and the facts found by the learned trial Judge. Accordingly, we pause at this stage to do so.
In this regard, paragraphs 1, 2, 3, 6, 7, 8, 9, 12, 15 and 16 of the statement of claim which we find relevant read as follows:
"(1) The plaintiffs are people of Ishiagu Umuaniebo family of Amechi Awkunanaw) and bring this action for themselves and on behalf of the said family.
(2) The defendants are also people of Ishiagu Umuaniebo family of Amechi Awkunanaw and are sued personally.
(3) The land in dispute which is known as and called Achara Ukwu Ishiagu Umuaniebo is the communal property of the plaintiffs and defendants.
(6) Grants of portions of the land in dispute were made to various people by the entire family through their representatives whose duties included the supervision of the land and conducting sales of portions of the land to members and non-members of the family.
(7) About the year 1956 these representatives or trustees were appointed from the three sub-divisions of Umuaniebo to represent the whole family in all the land transactions. They were as follows:
(a) Umu Nogo Family Orurus Oko
(b) Umu Nwokum Family Jonah Agbo
Chuku Ani Eke
(c) Umu Nengene Family Oma Ngene
(8) No one except the said trustees had power to sell or grant a lease of any portion of the land.
(9) Proceeds from the sales of the portion of the land were deposited into the A.C.B. Limited Enugu in the name of the whole family. Jonah Agbo and George Ugwu were the trustees of the bank account.
(12) About the year 1964, the defendants bound themselves together and sold out portions of the land to various people; without any reference to an authority from the family and without accounting for the proceeds of sale to the family.
(15) The old committee has not been dissolved and the 1st plaintiff on record is still a member of the said original committee.
(16) The plots which were sold without the authority of the family and because of which this action was brought were those as shown in our plan referred to in paragraph 4 of this statement of claim.
The defendants threaten to continue the sale unless restrained by Court."
To these averments, the defendants filed an amended statement of defence and joined issue with the plaintiffs/respondents on their claim to membership of Umuaniebo family and on their competence to file and prosecute the claims as representatives of and on behalf of Umuaniebo family. These were brought out more particularly in paragraphs 1, 2, 3, 4, 5, 6, 9, 10, 11, 14 and 15 (a) which read as follows:
"(1) The defendants deny paragraph 1 of the statement of claim and further emphatically deny that the plaintiffs represent the family of Ishiagu Umuaniebo or are authorised by the said family of Ishiagu Umuaiebo to sue and on their behalf;
(2) Further to paragraph 1 above, the defendants say that the family of the plaintiffs is different from the defendants. The plaintiffs come from Umugwuonyia family.
(3) The defendants admit paragraph 2 of the statement of claim except for the word 'also' therein. The defendants are members of the Umunwakum, Umunogo and Umunengene sub-families which make up Umuaniebo.
(4) The defendants deny paragraph 3 of the statement of claim. The defendants further say that the land in dispute is called Achara Ukwu Aniabor and that it is not the communal property of the plaintiffs defendants.
(5) Further to paragraph 4 above, the defendants say that they as Amadis (freeborn) cannot in the native law custom of Amechi own land jointly and with plaintiffs who are Awbias (strangers).
(6) They further say that as Awbias (strangers) the plaintiffs and their ancestors were subject to the House Rule System operating in Amechi Awkunanaw and in all Nkanu Division. Under the said system, each family unit of the Awbias was attached for services to a household of the Amabis (defendants and their ancestors) which gave it land to cultivate. The Awbias did not own property and land. After the emancipation of Awbias in 1923, the custom of Amechi remained that Awbias do not own land together with the Amadis or have share in lands belonging to Amadis.
(9) The plaintiffs did not move to Ugwuaji but remained at Ishiagu quarter. They do not own land jointly with the defendants but cultivate only such lands as defendants grant them.
(10) Further to paragraph 9 above, the defendants' families granted the plaintiffs' families Ishiagu and Ishiakani lands for farming. The plaintiffs have since laid out the said lands into plots and granted leases thereof registered in the Lands Registry Enugu as Instruments 16/16/407 and 43/43/407. The plaintiffs kept the proceeds of the said leases exclusively to themselves. The defendants will found on the said leases.
(11) As to paragraph 4 of the statement of claim, the defendants admit that the plan mentioned therein represents the land in dispute but the land therein is only a portion of the land known as Achara Layout. The land in dispute is also shown in defendants' plans No. E.T.P.A. 6/1A and GA.180/56 of 10/8/56 attached herewith and verged pink therein.
(14) As to paragraph 6 of the statement of claim, the defendants' families through their representatives gave portions of the land in dispute on lease to members of the public. The said defendants' families representatives were at first 1st defendant, and from 1971, attorneys as per Powers of Attorneys registered in the Lands Registry Enugu as Instruments 3/3/515 and 24/24/580. They account to the defendants' families.
(15) (a) In answer to paragraph 7, 8, and 9 of the statement of claim the defendants deny that the plaintiffs are co-owners of the land in dispute but admit that they allowed them in 1956 to be included in a Committee that was responsible for land transactions concerning the land in dispute and for dealing with the money realised therefrom which was deposited in the bank, due to their friendly relations." (Underlining ours).
As said earlier above, the learned trial Judge made a through and detailed review of the evidence led before him on the first issue formulated above, and, in the course of his judgment found as follows:
"On this fact the preponderance of probability is that the first plaintiff at least and possibly second as well are from Umuguonyia family. Is this family a different one from Ishiagu Umuaniebo family which the parties agreed consisted of three sub-families, namely Umunwaku sub-family, Umunogo sub-family and Umunwanegene sub-family? The first plaintiff in his evidence in chief said that the Umugwuonyia family is a section in Umunwaku sub-family. This testimony was denied by the defence but at the same time the defence admitted that there are other sub-families in the Umunwaku sub-family. In view of this admission, the possibility that Umugwuonyia is a section in Umunwaku cannot be ruled out especially when it is remembered that the plaintiffs who are from Umugwuonyia still lived in Umunwaku sub-family quarters
I find as a fact that the plaintiffs and the defendants are members of the main Ishiagu Umuaniebo family although they might belong to a different section of that family."
This finding was severely attacked on the ground that it is inconsistent with the learned trial Judge's definite finding that the plaintiffs belong to the class of citizens known as Awbias (strangers) in that area. They contended that not being Amadis (freeborn or land owning class) to which the defendants belong, the plaintiffs cannot enjoy communal ownership of the land with them.
We find ourselves unable to appreciate the point of this argument and in view of the symbiosis between the two and the pattern of growth resulting in the vesting, in part, of the control of, the use of, and disposal of the land in a 9-man committee, three of which were Awbias, and the appointment of the 1st plaintiff by the family as one of the two trustees operating the bank account opened for the proceeds of sale and other dealings with the said land in dispute, the finding is perfectly justified.
Even if in times past the Awbias were strangers, there is no evidence that they are still regarded as such. There can be no better evidence of their interest in the land than the position accorded them in the control of not only the land but also the funds of the family. The appellant unsuccessfully tried to prove provisions of native law and custom which deprives the Awbias of any right or interest in the land in dispute apart from those granted by the Amadis. On this point, the learned trial Judge observed:-
"It was submitted by the learned Counsel for the plaintiffs that the evidence before the Court was short of proof before the existence of such custom in Amechi Awkunanaw. His trump card was not only that the defendants have not led evidence of the custom but they have at previous occasion acknowledged the 1st plaintiff on record as a joint owner of the land in dispute even though he is not an Awbia. The defendant cannot now be heard to deny this admission."
The previous occasion referred to was at the trial of Suit No. E/24/59 taken out in the Enugu High Court against the 9-man committee appointed by the Ishiagu Umuaniebo family as a caretaker of the land in dispute by the 3rd and 4th defendants/appellants in these proceedings.
Exhibit 3 is the record of proceedings in that case E/24/59. The 1st defendant/appellant, 3rd defendant/appellant and 4th defendant/appellant in these proceedings gave evidence in that case. In that case the 3rd to 10th defendants included the 1st plaintiff and the 1st defendant in this case. After hearing evidence in that case, Palmer J. in his judgments said:
"The sixteen plaintiffs in this case claim to sue for themselves and on behalf of the people of the Umuaniebo family ... From the evidence in the case, it is clear that there is a clean division in the family. The 7th plaintiff has given evidence for defendants and he denied that he even consented to be a plaintiff. The 2nd plaintiff is an old man who claims to be head of the family, but admits he is not the oldest man. The defendants have produced a witness who also claims to be the head of the family-certainly he is older than the plaintiff's candidate. The 3rd, 4th, 5th, 6th, 7th, 8th, 9th, and 10th defendants are 'all' members of the family. There can be no doubt that there are two factions in the family and that the plaintiffs represent one of those factions, which is the larger and more important. I do not know-there is not enough evidence-but I do not think that either faction is insignificant. The plaintiffs then represent not the whole family but one of the factions in the family. But this does not prevent them from maintaining actions in respect of family land. The position therefore is this, the 3rd-10th defendants were agents, appointed by the whole family to lease the land to contenders. I doubt if the scope of their authority, which was given verbally, was ever exactly defined. They surveyed the land and leased it and the family accepted this as done on their behalf. How the mandate given to the 3rd-10th defendants was given by the whole family-that is not denied."
We Observe that the appellants failed to establish their contention and we are therefore unable to agree with Counsel's contention that because the respondents were once regarded as Awbias, they cannot be members of Umuaniebo family and (as such cannot) own land jointly with the Amadis. The burden was clearly on them to establish this fact but they failed woefully to do so.
This brings us to the second point raised by Counsel, that is, the absence of the mandate of the Umuaniebo family to bring the action against the defendants/respondents one of whom was the head of the family.
Chief F.R.A. Williams (learned Counsel for the appellants) dealt with this point from the point of view and on the basis of the finding that the plaintiffs/respondents were Awbias. He also drew our attention to the fact that the 4th defendant/appellant was the head of the family, a fact which the plaintiffs/respondents themselves have sworn to.
We observe that the plaintiffs/respondents in an exparte motion sought and were granted leave to sue on behalf of the people of Ishiagu Umuaniebo family of Amechi Awkunanaw, on the 14th day of February, 1972. On 14th July, 1972, the defendants filed their motion praying for (inter alia) an order striking out.
"For themselves and as representatives of Ishiagu Umuaniebo family of Awkunanaw as plaintiff in the above case or staying the above proceedings for want of authority to sue."
The learned trial Judge decided to hear evidence on the issue and since it was also an issue raised in the pleadings, he conveniently dealt with it along with the other issues dealt with in his judgment, the relevant portion of which reads:-
"There still remains however the issue as to the authority of the plaintiffs to bring this action. I think that there is in this case a similar situation as in the 1959 case ... Here the Ishiagu Umuaniebo family is again divided into two factions, the defendants and their followers, who now claim to be the only land owning class on one side and the plaintiffs and their followers now described as Awbias without any right to the land on another side. The plaintiffs then did not as in this case represent the whole owners of the land. Palmer J. in his judgment of 1959, said that such a situation did not prevent the plaintiffs in that case from maintaining an action in respect of family land."
The law is now well established that any member of the family can, if the head of the family fails in his duty to protect family land, institute an action on behalf of the family to protect family interest in the land.
In the case of Sogunle and others v. Akerele and others (1967) (N.M.L.R. 58 where a similar objection was raised, the Supreme Court said at page 60 (Onyeama, J.S.C. delivering the judgment of the Court):-
"We do not agree with this submission. The case in hand can be distinguished from Duke's case in which the claim was for a share of rents, here there is a claim for a declaration that the land in question is family land; there is authority for the view that a member of a family may take steps to protect family property or his interest in it; if he has not the authority of family to bring the action, the family would of course not be bound by the result unless for some reason the family was estopped from denying that the action was binding. In the present case, the appellants are claiming land which the respondents say belong to their family; it would be odd if as a result of an understanding between the appellants and certain members of the family, the respondents could not protect the family rights in the land because those members refused to authorise an action."
The learned trial Judge was, in our view, fully justified on the evidence before him which he accepted, to give the judgment and make the order he made in favour of the plaintiffs/respondents. The only ground of appeal argued is not made out and the appeal is hereby dismissed with costs to the respondents assessed at
(Sgd.) A. FATAYI-WILLIAMS,
JUSTICE, SUPREME COURT.
(Sgd.) M. BELLO,
JUSTICE, SUPREME COURT.
(Sgd.) A.O. OBASEKI,
JUSTICE, SUPREME COURT.