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3RD JUNE, 1959

F.S.C. 55/1959

3PLR/1959/94 (SC)




BEFORE THEIR LORDSHIPS                                         


LIONEL BRETT, F.J. (Read the Judgment of the Court)






  2. PHILLIP AKUNNE ANATOGU For themselves and on behalf of Ogbo (Umuasele) family.



[Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Eleanya Kalu, Eleanya Ugochi Vine]



APPEAL – Federal Supreme Court – Power to make formal order – Rule 36, Federal Supreme Court Rules.

EQUITY- Acquiescence by crown – Onus – How discharged.

LAND LAW – Claim for recovery of Possession – Acquiescence by crown – Effect.



  1. N. Gratiaen O.C. (with him G.C. Nonyelu) -for Appellant.
  2. Ikpeazu, (with him M. O. Balonwu) -for Respondent.



BRETT, F.J. (Delivering the Judgment of the Court):

This is an appeal by the defendant against the judgment of Dove-Edwin, J., in the Eastern Region High Court, awarding to the plaintiffs recovery of possession of por­tion of the plaintiff’s land in Ugborimili, situate in Onitsha in the Onitsha Di­vision, and an injunction restraining the defendant from “interfering with the plaintiffs’ land.” A claim for an order for the demolition of the defen­dant’s buildings on the land was refused.

Ugborimili is a large tract of land on the outskirts of Onitsha Town, part of it being within and part outside the present township boundary. By two documents entered into in 1882 and 1896, it passed into the ownership of the National African Company Limited (later the Royal Niger Company Char­tered and Limited) and by the Niger Lands Transfer Ordinance, enacted in 1916, (Laws, 1948, Cap. 149) into the ownership of the Crown. By an order dated the 11th December, 1948, made under section 10 of the Niger Lands Transfer Ordinance, the Governor of Nigeria abandoned all the right, title or interest vested in him by virtue of the Ordinance, and under section 14 of the Ordinance, the effect of the abandonment was that the ownership of the land fell to be determined as if the documents of 1882 and 1896 had never been made in relation to the land. Ownership of the land was thereupon claimed both by the Ogbo Umuasele family, respondents in the present ap­peal, and by the Obosi family, to which the appellant belongs, and litigation followed between representatives of the two families in which, as a result of a decision of the Judicial Committee of the Privy Council given in 1956 in Appeal No. 39 of 1951, and upholding the decision of the Supreme Court and the West African Court of Appeal, it was decided that the lawful owners were the Ogbo Umuasele family. The Judicial Committee were careful to emphasise, however, that it was only the ownership of the land that had been in issue, and to say that section 14 of the Niger Lands Transfer Ordinance “only deals with the title to ownership of the land and is not to be construed as compelling the Court to disregard all events which have happened in the period between 1882 and 1949 in so far as they may affect any rights of use and occupation in respect of such land as may have been acquired or have ac­crued by acquiescence or otherwise during those years.” In the present ap­peal the appellant claims that a right of occupation in perpetuity has accrued to him.


In 1952, between the date of the judgment of the West African Court of Appeal and that of the Judicial Committee in the litigation as to the owner­ship of the land, the Colonial Development Corporation entered into negotiations with a view to acquiring a lease over a portion of Ugborimili. The Corporation undertook to pay compensation to all owners of houses on the portion of the land to be covered by the lease, for the demolition of their houses, and it is not disputed that the appellant received £50 compensation for the demolition of a house, and gave a receipt for it in his own name. The significance of this will appear later. The two houses in respect of which the present action has been brought are situated about 500 yards from the nearest point of the area of the proposed lease, and just outside the township boundary.

The foregoing facts appear to be common ground, but for most of the rest there is a direct conflict of evidence. Much of the documentary evidence produced is, on the view which I take of the facts, not strictly material, but it will be as well to give a short summary of the evidence as a whole. In accor­dance with the generous ideas of those times, the National African Com­pany acquired in 1882 a far larger area than it needed for its own immediate occupation, and even up to 1949 most of Ugborimili was neither directly oc­cupied by the Government for its own purposes nor leased to Crown ten­ants. The consequence was, according to the evidence for the plaintiffs, that for many years after 1882 the Ogbo family continued to place tenants on the land for farming purposes, and to collect rents from them. It is agreed that members of the Obosi family had made certain use of the land, with the con­sent of the Ogbo family, even before 1882, indeed the grant of that year re­serves certain rights for the Obosi tenants, and the plaintiffs say that up to about 1928 the Obosi continued to obtain their consent for farming the land, and to pay rent to them. They say that only four Obosis were ever given per­mission by them to build on the land, and that the farming tenancies were in­variably only from year to year. In about 1928 the Obosis gave up seeking the permission of the Ogbo family for using the land, and started to claim the ownership of it, and this led to a number of suits in the native court. In 1934 the Government informed the Ogbo family that it did not recognise their right to collect rents or fees, and thereafter they gave up doing so. The docu­ments produced do not show how long after making this gesture of owner­ship it was that the Government started to consider abandoning such rights as it did not intend to exercise. It appears at least, that between 1934 and 1948 the Government would neither use the land itself and exercise the rights of ownership nor make up its mind to abandon the land to its former owners, and in spite of repeated protests made to the Government on behalf of the Ogbo family, Obosis continued to enter and build on the land and the Government took no effective steps to stop them. Actions to recover posses­sion were brought under section 29 of the Crown Lands Ordinance (Cap. 45) against a number of Obosis, including the appellant, in 1944, but were dis­continued in 1945.


The fact that the action for possession was brought by the Crown in 1944 is the least evidence that the appellant had a house on the land at that date. In his own evidence he said that he entered on the land, with the permission of the Obosi chiefs, in 1932, and built a mud and thatch house, which in 1942 he converted into a cement and pan house. He said that house was still there, and occupied by his family and tenants, and that it was not true that he had built in 1954. The submission made by Mr. Gratiaen, who appeared for the appellant in this Court, was that by the acquiescence of the Crown while the land was still Crown land, exemplified in particular by the discontinuance of the action for possession in 1945, the appellant had before 1949 acquired a right of occupation in perpetuity. As regards the £50 compensation received from the Colonial Development Corporation, the appellant said that it was not in respect of his own house, but in respect of two rooms of a house be­longing to a brother of his, and he explained his signature of a receipt in his own name by saying that when he wished to sign the receipt on behalf of his brother the Corporation told him that the money would not be paid if he did so. He added that part of his brother’s house had been outside the area of the lease and was still standing.


The prolonged delay in reaching a decision as to the future of the land, and the apparent unwillingness to enforce the rights of the Crown over the land when urged to do so by persons having a legitimate interest in the mat­ter, reflect little credit on the advisers and agents of the Crown, and if it were necessary to allow the appeal on the ground of the acquiescence of the Crown the respondents would have the strongest ground for complaint. Be­fore, however, the appellant can rely on the acquiescence of the Crown he must show not only that there was acquiescence but that the building which the Crown acquiesced in his putting up is the same as (or perhaps, at the very least, on the same site as) the buildings in respect of which the proceedings are brought, and the onus is on him. On this issue the learned Judge found against the appellant. He found that the houses now in question were built in 1954, as the plaintiffs said, not in 1932, or 1942, and that the house in respect of which the appellant was sued by the Government under the Crown Lands Ordinance was probably the one for which he received compensation from the Colonial Development Corporation and, therefore, situated, in part at least, within the area of the proposed lease and over a quarter of a mile from the houses now in question. In my opinion the Judge was amply justified in this fording. It is significant that the appellant does not claim to have built more than one house on the land, whereas the plans produced by the plain­tiffs’ surveyor show two houses belonging to the appellant, and both the sec­ond plaintiff and the surveyor gave verbal evidence to the same effect, which was not challenged. Nor were the plans challenged on the ground that they did not show the remaining portion of the house said to have belonged to the appellant’s brother. I therefore agree with the finding of Dove-Edwin, J, on this point, and as it is not suggested that the Ogbo family have shown any acquiescence that is enough to conclude the matter.


That makes it unnecessary to decide whether the conduct of the Crown was such as would have warranted a plea of acquiescence or not, and as the question may arise in a future case involving the Crown itself, which has not had the opportunity of being heard in this case, I wish to make it clear that I express no opinion either on the facts of this case or on any answer which the Crown might make under the law in force in Nigeria to a plea of acquies­cence in respect of Crown Lands. I would say this, however, that, from the appellant’s answers in cross-examination, I am not satisfied that he believed, in 1932, that the Obosi chiefs could authorise him to enter on the land, or that he was ignorant at any time of the respondents’ claims. I cannot, there­fore, entirely accept Mr. Gratiaen’s suggestion that this is a case in which one of two innocent parties must suffer, and I have some doubt whether the appellant’s conduct would, in any case, have entitled him to set up an equit­able defence.


Mr. Gratiaen submitted finally that the refusal of the Court below to order the demolition of the houses was intended in some way to operate in his client’s favour, and that combined with the slight variation in wording be­tween the injunction asked for and that granted it might have been intended to allow him the continued use of the houses, with a right of way of necessity. He agreed that if we dismiss the appeal we cannot vary the judgment, but he asked at least for clarification of it. Dove-Edwin, J., gave no reason for re­fusing an order for the demolition of the houses, but in view of the order for possession I do not see how his refusal can benefit the appellant, and the claim for demolition seems, in any case, to have been misconceived. As re­gards the injunction I am satisfied that Dove-Edwin, J., intended to grant what was asked for, and that the words used were merely what I may respect­fully call a lazy way of saying so. The respondent did not act on the advice contained in the judgment of the Judicial Committee in Appeal No. 39 of 1951 by asking for a formal order, but I think this Court should exercise its power under Rule 36 of the Federal Supreme Court Rules, and make such an order.


I would dismiss the appeal with costs assessed at 50 guineas, and in ad­dition make an order in the following terms:­


It is adjudged that the plaintiffs, for themselves and on behalf of the Ogbo (Umuasele) family, recover possession of that por­tion of the plaintiffs’ land in Ugborimili, situate at Onitsha in the Onitsha Division, on which the defendant has erected two houses; And it is further adjudged that the defendant by himself, his servants or agents, be and he is hereby restrained from inter­fering with the plaintiffs ownership and possession of the said portion of land.


Appeal Dismissed.



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