R. A. Erokwu And Ors V S. I. Bosah And Ors (1966)

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ONYEAMA, J.S.C.

This appeal is from the judgement of Betuel, J. sitting at Onitsha in the consolidated High Court Suits 0/107/59 and 0/108/59 ordering the cancellation of two leases of Isiokwe family land at Awada granted by the defendants No.1 and No.2 in the Suits, namely R. E. Melifonwu, the head, and R. A. Erokwu, a member of the Isiokwe family of Onitsha , respectively to C. C. Mojek- wu (the 3rd defendant in suit 107/59) and T. O. C.Ojiako (the 3rd defendant in suit 108/59). R. E. Melifonwu did not appeal; the other defendants did. T. O. C. Ojiako died later and Madam Ann Ojiako was substituted for him.

By a deed of lease of the 2nd of April, 1959 (registered as No. 15 at page 15 in Volume 189 of the Land Register at Enugu) R. E. Melifonwu and R. A. Erokwu purported to demise fifty acres of the family land at Awada to C. C. Mojekwu for ninety-nine years, and by a deed of the 11th of April, 1959 (registered as No. 15 at page 55 in Volume 189 of the Land Register) they purported to demise twenty acres of the family land for ninety-nine years to T. O. C. Ojiako.

The plaintiffs (above respondents) are members of the Isiokwe family, and their case is that contrary to native law and custom these leases were granted by the head of the family and some other members without their consent and were consequently voidable. They claim to be ‘important members’ of the family who had a right to be consulted and whose consent was necessary before dealings in family land can validly take place.

The case of the defendants at the trial was that the plaintiffs were not important members of the family: and, in any case, the lease to C. C. Mojekwu was agreed at a family meeting at which the plaintiff L. O. Uwaechia introduced C. C. Mojekwu as a prospective tenant. It was also their case that dealings affecting family land were conducted through a ‘land committee’ of the family. They contend that the consent which was necessary for dealings with family land was the consent of ‘sub-heads’ of the family: that is to say, the heads of the subordinate branches of the family.

The issue of what is the native law and custom on the consent required for a disposition of family land at Onitsha is an issue of fact on which the plaintiffs called a witness Chief Philip Anatogu whom the learned judge described as “a kind of Prince Regent of Onitsha “. This witness described in detail the structure of a typical Onitsha family starting from the Okpala and descending to the head of the most junior branch,  followed  ”by Ozos or titled men”  and by  “an amorphous mass of untitled, married men, ,householders and fathers, ”and ending up with unmarried or childless men who are not particularly distinguished in their own right. He testified that in Onitsha customary law, all important members of the family must be consulted in regard to all transactions relating to the alienation or leases of land, for any duration outside the customary annual tenure; and that to effect a valid transaction, their consent to the disposition must be obtained. He also testified that the plaintiffs are important members of the Isiokwe family.

The defendants gave evidence to the effect that sub-heads of the family could give the necessary authority for the disposition of family land and that the head of the family and the next in rank to him would dispose of the land in the presence of witnesses. It is the duty of the sub-heads, they said, to inform members of their branches of the family of what is decided. They called a witness Joseph Anarah Ekwerekwu, an old man of eighty years next in rank to the head of his family and older than the witness Anatogu called by the plaintiffs. This witness testified that the persons to decide on the disposition of family land were the elders of the family, and not its subordinate members.

Such then was the effect of the conflicting evidence before the learned trial judge on the crucial issue of whose consent was necessary for the valid disposition of land according to the native law and custom in Onitsha. After going through the evidence and considering the cases cited he accepted the evidence of Chief Anatogu that in Onitsha customary law all important members of the family must be consulted in regard to all transactions relating to the alienation or lease of land beyond the customary annual tenure, and that the plaintiffs were important members of the lsiokwe family, he therefore gave judgement for the plaintiffs. And the defendants, other than R. E. Melifonwu, have appealed.

The appellants have argued before us that sub-heads are the proper representatives of other members of their branches of the family, and can give valid consent to the disposition of family land. Mr. Umezinwa has drawn attention to various pages of a Minute Book showing meetings of members of the Isiokwe family at which the matter of the lease to C.C. Mojekwu was discussed.It is significant that at these meetings adult members of the family other than sub-heads of the branches of the family were present and took part in the discussion and decision. It was submitted that members of the family who were absent from Onitsha were bound by the decisions reached at these meetings of those at home. It was faintly suggested that the family acted by majority decisions.

We are firmly of the view that on the evidence before the learned trial judge his finding as to the governing native law is right. It was clearly proved that the plaintiffs are important members of the Isiokwe family, and it was also proved that they had not consented to the leases in question.

We were referred to a number of cases from other parts of Nigeria, for example, Mogaji v. Nuga 5 FSC. 107; Onwuka v. Abiriba Clan Council 1 E.N.L.R. 17, and Ekpendu v. Erika 4 FSC. 79 and asked to apply the principles to be extracted from them.

We think however that in matters of this kind where the question is to be resolved by reference to native custom, the applicable native custom must he proved by evidence if it is of such as can be judicially noticed: s.14 Evidence Act.

In the present case the plaintiffs proved the Onitsha custom they contended for, and decisions on customs in other areas appear to us to be beside the point.

The appeal fails and is dismissed. It is ordered that the judgement of the High Court at Onitsha (Betuel, J.) dated the 23rd of November, 1961 in the consolidated Suits 01107/1959 and 01108/1959 between

(1) F. N. Udu,

(2) C. E. Odogwu,

(3) S. T. Bosah,

(4) L. O. Uwechia,

(5) S. N. Okocha,

(6) A. O. Erokwu,

(7) N. Uwechia,

(8) L. Melifonwu and

(1) R. E. Melifonwu,

(2) R. A. Erokwu,

(3) C. C. Mojekwu or

(3) T. O. C. Ojiako be and is hereby affirmed.

The appellants – R. A. Erokwu, C. C. Mojekwu and Madam Ann Ojiako – will pay the respondents costs of appeal assessed at 75

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Other Citation: (1966) LCN/1318(SC)