CHIEF OKOLI EKAWU v. MR. ACHI OJUGBO & ANOR
(2010)LCN/4215(CA)
In The Court of Appeal of Nigeria
On Monday, the 12th day of July, 2010
CA/C/145/2009
NATIVE LAW AND CUSTOM : WHETHER NATIVE LAW AND CUSTOM RELATING TO INHERITANCE ARE FACTS TO BE ESTABLISHED ON EVIDENCE
The native law and custom relating to inheritance are facts to be established on evidence as threshold matters. The custom was not proved to be of such notoriety and so frequently followed by the courts that judicial notice would have been taken of it without evidence. See GIWA v. ERINMILOKU (1961) 1 ALL NLR 294. PER NWALI SYLVESTER NGWUTA J.C.A.
NATIVE LAW AND CUSTOM : WHETHER ISSUES DEPENDING ON A CUSTOM CANNOT BE DETERMINED IN THE ABSENCE OF PROOF OF THE CUSTOM RELIED ON
Without proof of the custom relied on the issues depending on it cannot be determined. PER NWALI SYLVESTER NGWUTA J.C.A.
Before Their Lordships
KUMAI BAYANG AKAAHSJustice of The Court of Appeal of Nigeria
JA’AFARU MIKAILUJustice of The Court of Appeal of Nigeria
NWALE S. NGWUTAJustice of The Court of Appeal of Nigeria
Between
CHIEF OKOLI EKAWU (Deceased)
Substituted by Mr. Onah Ogidi (for Himself and on behalf of WONAH’S FAMILY OF OCHONGO VILLAGE, IJEGU-YACHE, YALA LGA)Appellant(s)
AND
1. MR. ACHI OJUGBO
2. MR. PAUL OCHADE
(for themselves and on behalf of the Late Ojugbo Abru Family of Imaje, Yala Local Government Area)Respondent(s)
KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment): Chief Okoli Ekawu was the 2nd Plaintiff in Suit No. HJ/32/99 and he with two others, namely, Mr. Fidelis Ukpor Ogar and Madam Ogeyi Ochelebe instituted the action in a representative capacity for themselves and on behalf of the late Wonah’s family of Ochongo Village, Ijegu-Yache, Yala Local Government Area of Cross River State against Mr. Achi Ojugbo and Mr. Paul Ochade (defendants) also in a representative capacity for themselves and on behalf of the late Ojugbo Abru’s family of Imaje, Yala Local Government Area. In paragraph 24 of the Statement of Claim, they claimed against the defendants jointly and severally as follows:
1. A declaration that the House No. 5, Idu Ishedu Street, Okuku in Yala Local Government Area built by late Madam Paulina Wonah is the exclusive property of the late Wonah’s family of Ochongo Village, Ijegu-Yache.
2. A declaration that the defendants are not members of the said Wonah’s family of Ochongo village of Ijegu-Yache.
3. Perpetual Injunction restraining the defendants and the late Ojugbo Abru, a member of the defendant’s family since the death of Paulina.
4. An account of all monies collected by the defendants and the late Ojugbo Abru, a member of the defendant’s family since the death of Paulina Wonah.
5. An order for the payment by the defendants to the plaintiffs of all the monies so collected by the defendants and the late Ojugbo Abru with interest at the present bank rate.
6. N500,000.00 damages for trespass.
Pleadings were filed and exchanged. The defendants filed a Joint Statement of Defence. Following the Reply which the Plaintiffs filed to the Joint Statement of Defence, the Defendants amended the Statement of Defence on 18th December 2000. The parties called witnesses who testified and tendered some exhibits before their counsel addressed the court. In a reserved judgment delivered on 3rd November, 2008, the learned trial Judge dismissed the plaintiffs’ claims with N5,000.00 costs in favour of the defendants. Dissatisfied with the verdict reached, the 2nd plaintiff instructed counsel for the plaintiffs to appeal on his behalf and on behalf of Wonah’s family. The Notice of Appeal dated 1st December, 2008 was filed on 12/1/2009.
After arguments in the appeal had been heard and the appeal adjourned for judgment, counsel for the appellant brought an application dated 5th June, 2010 but filed on 7/6/2010 seeking to substitute the appellant Chief Okoli Ekawu who was reported to have died on 25th May, 2010 with Mr. Onah Ogidi who is a member of Wonah’s family. The application was moved and granted. The appellant’s counsel distilled six issues from the 9 grounds of appeal filed which are:
“3.1 What is the main/real issue for determination in this case (Grounds 3 and 5).
3.2 Whether the court below properly evaluated the evidence before it (Ground 4).
3.3 Whether the court below was fair to both parties (Grounds 7 and 9).
3.4 Whether the court below was right in holding that the Defendants/Respondents are now in possession and are managers of the property in dispute (Ground 8).
3.5 Whether the court below misdirected itself with regard to the position of the plaintiff/appellant and his witnesses when it held that this case and the defendants/respondents was/were brought to court by the plaintiff and his witnesses. (Ground 6).
3.6 Whether the judgment of the court below accords with the evidence before it (Grounds 1 and 2).
The appellant also filed a Reply Brief in answer to the Preliminary Objection raised by the Respondents. The preliminary objection is that the appeal is incompetent because the issues for determination do not emanate from the grounds of appeal. According to the learned counsel for the Respondents, “the appellant donated one purported ground of appeal with 8 bogus issues for determination which he termed grounds of appeal.”
I cannot appreciate the complaint by the Respondent that the appellant donated only one ground of appeal. I have studied the Notice of Appeal and arrived at the conclusion that most of the grounds if not all are valid grounds of appeal since they contain the substance of the complaint against the judgment. Grounds 1, 2, 4, 6, 8 and 9 are reproduced to show that they are not only valid but clearly show why the appellant feels dissatisfied with the judgment of the lower court:
“1. The judgment is against the weight of evidence.
2. The learned trial Judge erred in law by dismissing the suit of the plaintiff/appellant on the grounds that paragraphs 10 and 21 of his statement of claim were not proved when:
(a) By the legal principle that what is not denied is deemed admitted and what is admitted need not be proved those paragraphs need not be specifically proved by the Plaintiff/Appellant.
(b) There is enough evidence before the court establishing what the document pleaded in paragraph 21 would have established if tendered. The said evidence enabled the court to find that “there is no dispute that the property in dispute belongs to Madam Paulina Wonah:
(c) The resolution of the real issue in contention between the parties which is who, as between them is/are members of the deceased’s (Madam Paulina Wonah) family would have settled the question of inheritance stated in paragraph 10 of the Statement of Claim.
4. The learned trial Judge did not properly evaluate the evidence before him and gave Exhibits 3 and 4 tendered by the Defendants/Respondents more value than they deserved.
6. The learned trial Judge misdirected himself in relation to the position of the plaintiff and his witnesses by treating them as standing in the same position thereby holding or stating that this case or the Defendants/Respondents was/were brought to court by the Plaintiff/Appellant and his witnesses.
8. The learned trial Judge erred in law in holding that the Defendants/Respondents are now in possession and are managers of the property in dispute when:
a) Exhibit 2 issued by the court and tendered by the Plaintiff/Appellant vested the administration and management of the said property on the Plaintiff/Appellant and three others (now deceased).
(b) The Defendants/Respondents are trespassers to the said property.
9. The learned trial Judge was bias (sic) against the Plaintiff/Appellant and in favour of the Defendants/Respondents.
PARTICULARS OF RTAS
Vital evidence of the Plaintiff/Appellant like the one that the 1st Defendant/Respondent’s father was only a friend to late Madam Paulina Wonah was not considered while all the evidence of the Defendants/Respondents were considered and accepted”.
From the grounds of appeal reproduced above it is obvious that the preliminary objection is baseless. It is accordingly overruled.
Learned Counsel for the Respondent proceeded to formulated the following three issues for determination:
4.1 Whether the Plaintiff/Appellant proved his case and was entitled to judgment.
4.2 Whether the evidence was not properly evaluated by the Lower Court before judgment was entered.
4.3 Whether the Lower Court was biased in favour of the Respondents.
I prefer the issues formulated by the Respondents and will consider the arguments in the appeal based on the respondents’ issues.
ISSUE 1
It is the contention of learned counsel for the appellant that from the pleadings and evidence of the parties, the issue at stake is to decide which among the two families is the paternal family of Madam Paulina Wonah that is entitled to inherit her estate. It is because the lower court ignored or rejected to determine this as an issue that gave rise to the wrong judgment which has occasioned a miscarriage of justice.
Learned counsel for the Respondents on the other hand argued that the appellant failed woefully to establish his claim before the trial court, which rightly entered judgment in favour of the Respondents.
In paragraphs 10 and 21 of the Statement of Claim, the plaintiffs averred that –
10. At the death of late Madam Paulina Wonah without a child and WILL, her property including the house at No. 5 Idu Isheda Street Okuku became the property of Wonah’s family of Yache by inheritance according to the custom and tradition of Yache and the people of Yala. The plaintiffs as leading members of Wonah’s family are entitled to administer the estate of late Madam Paulina Wonah.
21. In a counter affidavit made by the 1st defendant’s father to a motion on notice for interlocutory injunction by the plaintiffs while Suit No. HJ/30/95 was still pending in court the 1st defendant’s father admitted that the house belongs to late Madam Paulina Wonah. That he do (sic) not lay any claim to the house and will never do so. This was in paragraph 8 of the said affidavit. The said affidavit will be relied upon by the plaintiffs and is hereby pleaded.”
These averments were denied in paragraph 9 of the Amended Joint Statement of Defence dated 18th December 2000 wherein the Defendants pleaded as follows:
“9 The defendants deny paragraph (sic) 4 to 24 of the Statement of Claim and in reaction thereto aver as follows:
(a) That Madam Paulina Okpowu Wonah, the owner of property situate at No. 5 Ada Idu Street Okuku Yala Local Government was the first child of Pa Wonah Iku, but live (sic) with her aunt, Mama Ochuole Iku, mother of Chief Ojugbo Abru, father of the first defendant at Aye-gboda lineage of Imaje until she was given out in marriage.
(b) That Paulina Wonah had unsuccessful marriage and left to settle at Kaduna where she was doing business until she fell sick in 1988.
(c) That Paulina Wonah was older than Chief Ojugbo Abru father of the 1st defendant and she and Ojugbo Abru live (sic) with the latter’s mother as brother and sister. While Mama Paulina Wonah was of Ikpa age grade Ojugbo Abru was Ogor age grade with one age grade between them.
(d) That while she (Paulina) was in Kaduna, she invited Ojugbo Abru there, where she instructed him to acquire land and procure building plan to enable her build a house for the family. Chief Ojugbo Abru procured the land in his name as instructed and a building plan No.31/BP/72 for 18 rooms. The defendant (sic) shall rely on the said plan as well as all correspondence from Paulina Wonah towards constructions of the said house for their legal effects.
(e) That the 1st defendant’s father built the house with funds released by Madam Paulina Wonah at No. 5 Ada Idu Street Okuku, Yala in 1972.
(f) That shortly after the construction of the 18 rooms (sic) referred in paragraph 9(e) above, Madam Paulina Wonah instructed the construction of a further 4 room (sic) to fill the vacant space bringing the total numbers (sic) of rooms to 22 rooms.
(g) That after the completion of the house Chief Ojugbo Abru appointed one Mr. Eneji Alibi (deceased) caretaker in 1972 a position the said Eneji Alibi held till 1990 when he died.
(h) That on the death of Mr. Eneji Alibi, Chief Ojugbo Abru appointed one Onyebuche Nnaekwa, an old tenant in the property a care taker. The said Mr. Onyebuche Nnaekwa was joined in Suit No. HJ/30/95 instituted against Chief Ojugbo Abru by the plaintiffs.
(i) That on the death of Paulina Wonah on the 25th August 1988 contrary to the claim of 15th July, 1995 the Plaintiffs, as the oldest family member, seniority in the family naturally fell on the 1st defendant’s father who was next to her.”
Since the plaintiffs’ claim to the estate of Paulina Wonah was based on the custom and tradition of Yache and the people of Yala, such a custom needed to be established by calling oral evidence. On this point the learned trial Judge at page 11 of the judgment observed.
“With the traverse, the issues of inheritance and custom therefore remain a fact which must be proved. The additional call for its prove (sic) is the fact of this court not having been confronted with such custom and time to enable it take judicial notice of the same to obviate the mandatory requirement for a proof. The law is on its throne in ODU-CAMERON v. SAIDI (2005) ALL FWLR (Pt. 283) page 139.”
The learned trial Judge then found that –
“The Plaintiff failed, neglected and refused to call anybody preferably a community Chief or elder to settle the custom.”
(See page 11 lines 9-19 of the judgment).
The learned trial Judge cannot be faulted in this finding. It was necessary to first settle the issue of the custom on inheritance before deciding on who was paternally related to Paulina Wonah to enable them claim a better position to inherit the deceased who died without a child. The respondents’ counsel rightly submitted that the burden of proof lay on the appellants which they failed to discharge.
The other issues relating to evaluation of evidence and bias have become irrelevant since the all important issue on the appellants’ right to inherit Paulina Wonah has not been established. I therefore find that the appeal has no merit and it is hereby dismissed. I make no order on costs.
JAAFARU MIKA’ILU, J.C.A.: I have read in draft the lead judgment written by my learned brother Kumai Bayang Akaahs, J.C.A. I am therefore of the view that this appeal has no merit and it therefore dismissed. I make no order as to costs.
NWALI SYLVESTER NGWUTA J.C.A.: I read in draft the lead judgment just delivered by my learned brother Akaahs, JCA and I agree with the reasoning and conclusion therein.
The native law and custom relating to inheritance are facts to be established on evidence as threshold matters. The custom was not proved to be of such notoriety and so frequently followed by the courts that judicial notice would have been taken of it without evidence. See GIWA v. ERINMILOKU (1961) 1 ALL NLR 294.
Without proof of the custom relied on the issues depending on it cannot be determined.
For the above and the fuller reasons in the lead judgment I also dismiss the appeal for want of merit. I make no order on costs.
Appearances
Godwin O. AgabiFor Appellant
AND
J. E. OsibuFor Respondent
