⦿ CASE SUMMARY OF:
Julie Nezianya and Ors v. Anthony Okagbue and Anor. (1963) – SC
by PipAr Chima
⦿ LITE HOLDING
Long possession of a wife in her husband’s house, according to the Igbo custom, does not grant title to her. She cannot be deemed as an adverse possessor.
Julie Nezianya and Ors.
Anthony Okagbue and Anor.
(1963) JELR 41066 (SC)
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– Mr Ikpeazu.
* FOR THE RESPONDENT
The land originally belonged to one Ephraim Agha who in 1895 married one Mary Menkid under the Christian form of marriage. Ephraim had an uncle (a brother of his father) by the name Okagbue. The three defendants/respondents are descendants of Okagbue. Ephraim and Mary lived on a portion of the land in dispute. When Ephraim took to himself another woman, Mary left him and lived separately. There was a child of the marriage between Ephraim and Mary; she was called by the name Josephine. Josephine died leaving two children (both female) who are the present plaintiffs. On the death of Ephraim in 1909 Josephine was a child.
In that Court the plaintiffs/appellants claimed as against the defendants/respondents that they are entitled to the exclusive possession of a piece of land at 9 James Street, Onitsha, and for an injunction to restrain the defendants/respondents, their agents, servants, heirs and successors from entering the land or interfering in any way with the plaintiffs’ possession.
The land is situated at Onitsha. It is not in dispute that the parties are natives of Onitsha and that they are bound by the customary law of Onitsha people in Eastern Nigeria.
The learned Judge who heard the case found for the plaintiffs on the facts, but followed the Native Law and Custom of Onitsha and held that on the death of a husband “possession by a widow of the husband’s land can never be adverse to the rights of the husband’s family as to enable her to acquire an absolute right to possession of it against the family.” From that judgement Mary’s grandchildren (the plaintiffs) have appealed.
1. Whether, under the Native Law and Custom of Onitsha, a wife could become the owner, by virtue of adverse long possession, of her deceased husband’s property.
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. It would appear that the essence of possession of the wife in such a case is that she occupies the property or deals with it as a recognised member of her husband’s family and not as a stranger, nor does she need express consent or permission of the family to occupy the property so long as the family make no objection to her occupation. The Judge in the court below had the benefit of the evidence of a senior Chief in Onitsha who gave evidence as an expert on the Native Law and Custom of the Onitsha people. From the evidence of this witness it is abundantly clear that a married woman, after the death of her husband, can never under Native Law and Custom be a stranger to her deceased husband’s property; and she could not, at any time, acquire a distinct possession of her own to oust the families rights of ownership over the property.
⦿ ENDING NOTE BY LEAD JUSTICE – Per Ademola CJN
Counsel for the appellant does not dispute the Native Law and Custom which has been pleaded and proved in this case: he merely argued that the possession by Mary, the appellants’ predecessor in title, was adverse and was therefore not bound by the Native Law and Custom propounded. We share the views of the learned Judge that Mary’s possession can never be adverse to the rights of her husband’s family, and those who claim through her are affected or bound by this. The claim against the family cannot, therefore, succeed.
⦿ CONTRIBUTIONS OF OTHER JUSTICES TO ISSUE(S)
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
The Onitsha Native Law and Custom postulates that a married woman, on the death of her husband without a male issue, with the concurrence of her husband’s family, may deal with his (deceased’s) property; her dealings, of course, must receive the consent of the family. The consent, it would appear, may be actual or implied from the circumstances of the case, but she cannot assume ownership of the property or alienate it She cannot, by the effluxion of time, claim the property as her own. If the family does not give their consent, she cannot, it would appear, deal with the property. She has, however, a right to occupy the building or part of it, but this is subject to good behaviour. – Ademola CJN. Nezianya v. Okagbue (1963)
⦿ SIMILAR JUDGEMENTS