CHUKWUMA IGBOZURUIKE & ANOR v. ISAAC ONUADOR
(2015)LCN/7982(CA)
In The Court of Appeal of Nigeria
On Friday, the 31st day of July, 2015
CA/PH/66/2008
RATIO
LAND LAW; GIFT OF LAND; WHETHER A PERSON HAS POWER OR COMPETENCE TO REVOKE A COMPLETELY CONSTITUTED GIFT OF LAND MADE INTER-VIVOS BY HIS ANCESTOR WHO LET THE DONEE INTO POSSESSION
The Supreme Court decision in the case of Ekpa Vs Utong (1991) 6 NWLR (pt.197) 258 at 284, appears very relevant here where Agu JSC said:
“I think it has to be conceded that a person is completely without power or competence to revoke a completely constituted gift of land made inter-vivos by his ancestor who let the donee into possession… unless perhaps, he can show that such a gift was null and void ab initio or that the gift was subject to a condition which has been broken… such a gift of land completed with delivery of possession according to custom is a transfer of ownership of the land to the donee and extinction of the rights of those who claim through or under the Donor. The Learned Chief Magistrate correctly summed it all up in his Judgment where he said “What is given is given…” See also (1991) LPELR – 1084 SC. per. ITA GEORGE MBABA, J.C.A.
LAND LAW: TENANCY; WHO IS A TENANT
A tenant is a person occupying premises whether on payment of rent or not, but does not include a person occupying premises under a bonafide claim to be the owner of the premises. See Rent Control and Recovery of Premises Law of Imo State as variously amended. The case of African Petroleum Ltd vs Owodunni (1991) 8 NWLR (pt. 210) 391. per. ITA GEORGE MBABA, J.C.A.
APPEAL: DUTY OF A PARTY COMPLAINING AGAINST A DECISION OF A COURT TO EXPLAIN AND DEMONSTRATE BY CREDIBLE ARGUMENT HOW OR WHAT MAKES THE DECISION WRONG
The rule is always that a party complaining against a decision of a Court, has a duty to explain and demonstrate by credible argument, how or what makes the decision wrong. He should not leave it to the appellate Court to speculate or conjecture. Ukachukwa and Ors Vs Ihejirika & Ors (2014) LPELR – 24102 (CA); Chidebelu & Anor Vs Probate Registrar High Court of Anambra State & Ors (2013) LPELR – 21215 (CA); Alaribe Vs Okwuonu (2015) LPELR – 24297 (CA), pages 19-20 thereof where we said:
“This Court is not expected to undertake assignment posed by speculation of the Respondent, to call up all the grounds of appeal and (records) study to determine which one conforms with the Respondent’s allegation and which one does not, if the Respondent failed to do his home work”. per. ITA GEORGE MBABA, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
1. CHUKWUMA IGBOZURUIKE
2. PHILIP IGBOZURUIKE
(Substituted in the spread of Joseph Thomas Njemanze, deceased) Appellant(s)
AND
ISAAC ONUADOR Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Imo State High Court in Suit No. HOW/174/2001, delivered by Hon Justice C.I. Ohakwe on 15/7/2005, wherein the trial Court dismissed the case of the Plaintiff and entered Judgment for the Defendant in terms of his Counter-claim, as follows:
“The Defendant is entitled to his mother’s share of the family building on the Plaintiff’s agreement with the Defendant’s mother, Awuchi and the custom of Owerri Nchi-lse which accepts a son born by Mgboto who returned to her maiden home and her bride price repaid. In the alternative:
(a) The Plaintiff is ordered to purchase land around Owerri and erect a building for the defendant to compensate for the house of his mother, Mgbala, knocked down by the Plaintiff upon which the family house was erected.
(b) The Plaintiff to pay N200,000.00 (Two Hundred Thousand Naira) as compensation to the Defendant for taking the grandmothers Mgbala given to the Defendant’s mother, Awuchi and passed on to the defendant. (Page 114 of the Records of Appeal)
Appellants filed notice of Appeal, with the leave of this Court, granted on 22/11/2006. They filed Amended Notice of Appeal on 9/3/15 and disclosed thirteen (13) grounds of Appeal, and followed it up with their Amended Brief of arguments, filed on the same 9/3/15, wherein 6 (six) issues were distilled for determination, namely:
(1) Whether the learned trial judge was not in error in granting the reliefs sought by the Defendant/Respondent in his counter-claim, even though the said reliefs were not proved as required by law (Ground 1).
(2) Was the trial court not in error in its findings that the Defendant/Respondent is entitled to inherit Mgbala Onyenachi given to his (Awuchi) by Onyenachi, and also that the gift inter vivos of Mgbala Onyenachi by Okpoko Igbozurike and Onyenachi, to Awuchi and her children and also letting them (Awuchi and her children) into possession, extinguished the rights of persons claiming through Okpoko Igbozurike, when neither the purported gift of the said Mgbala Onyenachi to Awuchi and her children nor the act of letting them into possession of the said Mgbala Onyenachi was pleaded nor proved by evidence. (Ground 2, 3 and 9).
(3) Whether it is the custom of the people of Owere Nchi Ise that a married daughter of a family who returned to her maiden home and accepted by her parents’ family with the authority to raise children, her bride price having been refunded to her husband by her parents, both the woman and the children raised thereby, become members of her maiden family? (Grounds 4, 6 and 8).
(4) Was the learned trial judge not in error in dismissing the Appellants’ claim against the Defendant/Respondent for possession of that one room with appurtenances situate at No. 12 Njemanze Street, Owerri, his reason being that the Defendant/Respondent is a member of Okpoko Igbozuruike family and that to drive a man out of his family, denying him right to shelter in his home-stead, or make alternative agreeable arrangement for him, is deprivation under Section 42(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (Grounds 10 and 11).
(5) Whether the Defendant/Respondent proved the alleged agreement between his mother (Awuchi) and Joseph Thomas Njemanze (the Plaintiff), that Awuchi should allow the Plaintiff demolish Onyenachi’s Kitchen and build his house thereon, whilst Joseph Thomas Njemanze would, in turn, give Awuchi and her children part of the building after completion? (Ground 12).
(6) Would the order of the trial court on the Plaintiff to Purchase Land around and Owerri and erect a building for the Defendant to compensate him (Defendant) for taking Mgbala Onyenachi and building a house thereon, and also pay to the Defendant compensation of the Sum of Two Hundred Thousand Naira (N200,000) in respect of the same Mgbala Onyenachi, not amount to double compensation, even when the reliefs sought by the Defendant are not proved by evidence? (Ground 13).
The Respondent filed his brief on 12/2/13 and the same was deemed duly filed on 13/5/13. He distilled three (3) issues for the determination of the Appeal, as follows:
“(a) Whether the claimants/Appellants proved their claim before the Court below against the defendant/Respondent that he was a tenant of their late father (late Joseph Njemanze) the original Plaintiff (claimant).
(b) Whether the Defendant/Respondent proved his counter-claim against the claimants/Appellants.
(c) If the answer to issue two is in the affirmative, whether the learned trial judge was right in granting the reliefs claimed by the Defendant/Respondent in his counter-claim and dismissing the suit of the Claimants/Appellants.”
The Respondent also raised a preliminary objection, in the brief, to the competence of the Appeal, on the grounds that:
(i) The Appellants were out of time to file appeal for over 9 months (15/7/2005 to 27/7/2006) when they had 90 days or 3 months to appeal.
(ii) The Appellants ought to have filed and prayed the Court of Appeal to grant them the trinity prayers i.e.:
(a) Extension of time within which to seek leave to appeal out of time.
(b) Leave to appeal out of time.
(c) Extension of time within which to appeal out of time.
The preliminary objection, was, however, abandoned as the Respondent did not argue it or call attention to it on 16/6/15, when this appeal was heard. He must have come to know that the objection was misplaced, Appellant having been granted extension of time by this Court on 22/11/2006 to appeal, and that even if Appellant did not approach this Court with trinity prayers at the time of seeking the extension of time to appeal, that the objection cannot be raised in this Court, again, after the grant of that relief, to stall the hearing of the appeal. See the case of Ndukwe Vs Ndukwe: CA/OW/118/2010 delivered by this Court on 17/6/15, page 4.
Arguing the Appeal, learned Counsel for the Appellants, Naths Epelle Esq, on issues 2 and 3 (which he argued together), submitted that the customary law of Owerri Nchi Ise, being a question of fact must be proved by evidence and he relied on Section 16(1), 18(1) and (2) of the Evidence Act, 2011; he said that in proving the said customary law, the party seeking to rely on it, must comply with Section 70 of Evidence Act, which provides for admissibility of opinion evidence in relation to the customary law and custom.
Counsel called our attention to the evidence of the parties in proof of the custom alleged and the findings of the Court thereto which he said ought to have been derived from the pleadings and evidence led at the trial; he said that the findings of fact made by the trial Court cannot be said to be backed by the facts pleaded by the parties, as there was nothing in the pleadings to sustain the evidence upon which such findings of fact were made by the trial Court. He referred us to the pleading by the parties – paragraphs 1,2,4 and 6 of the statement of claim of the Plaintiffs and 2,3,4,6,9,10,12,12b,13,14 and 15 of the Amended Reply to statement of defence and defence to Counter-Claim (Pages 5-6 and 50-54 of the Records), and for Defendant – paragraphs 2,6,7,9,10,11 and 12 of the statement of defence (pages 17-19 of the Records).
Counsel said that from the pleadings of the parties, it was common ground that:
(1) Igbozuruike, grandfather of the Plaintiff (Joseph Thomas Njemanze), was the original owner of the property, No. 12 Njemanze Street, Owerri.
(2) Late Okpoko Igbozuruike was the only son of Igbozuruike; Late Okpoko Joseph Thomas Njemanze (the Plaintiff at the Court below) was the only son of Okpoko Igbozuruike.
(3) Onyenachi was the mother of Okpoko Igbozuruike (father of the Plaintiff) and Awuchi, the mother of the Defendant/Respondent.
(4) Awuchi (the Respondent’s mother) was married to one Godwill Osuador of Ihiagwa, but later returned to her maiden home, No. 12 Njemanze Street, Owerri, where she begat the Defendant/Respondent (outside wedlock) shortly after her return to her maiden home.
(5) Having returned to her maiden home, Awuchi lived with her mother, Onyenachi, in Onyenachi’s kitchen (ordinarily referred to as Mgbala), until the death of Onyenachi. After the death of Onyenachi, Awuchi continued to live in Mgbala Onyenachi with her children.
(6) Onyenachi’s kitchen was situate somewhere within the property, No. 12 Njemanze Street, Owerri.
(7) The Appellants’ Late Father, Joseph Thomas Njemanze, whilst erecting his dwelling house on the property, No. 12 Njemanze Street, Owerri, pulled down the Mgbala Onyenachi and built his dwelling house covering the area where the said Mgbala once stood.
Counsel said the Respondent had a duty to prove that the land (encompassing the Mgbala) on which Appellants erected the building, belonged to his mother, Awuchi, which she purportedly inherited from her mother; that his mother inherited the land and building; that Onyenachi, before her death, and in the presence of witnesses asked Awuchi and her children to occupy her (Onyenachi) Mgbala that on the death of Onyenachi, in 1965, Awuchi (Respondent’s mother) buried Onyenachi and thus inherited Onyenachi’s Mgbala according to customary law of the people Owerri Nchi Ise, and that the Respondent is a member of Okpoko Igbozuruike family, having been born, fully accepted and assimilated into the said family, according to Owerri native law and custom. He relied on Ogbonnaya Vs A.G. Imo State (1992) NWLR (pt. 220) 647; Alhaji Yusuf Dan Hassan & Co. Ltd Vs Penatrade Ltd (1993) 7 SCNJ (pt.1) 100; Irekpita Vs Federal Mortgage Finance Ltd (2012) ALL FWLR (pt.647) 784.
Counsel reproduced the arguments he must have made at the trial court (by way of his address), and said that the trial court did not make any effort at reconciling the conflicting evidence led thereon, before making the findings of fact complained of in grounds 2, 3 and 9 of the appeal, which he said occasioned miscarriage of justice.
He said that neither the Appellant nor the Respondent pleaded the fact that under the customary law of the Owerri Nchi Ise, if a married daughter of a family returns to her maiden home, her bride price refunded and she is given Mgbala to live in, no person can retrieve the Mgbala from her; that even if the Plaintiff had so stated under cross examination, that evidence remained inadmissible; that it is not permissible to elicit evidence outside of pleadings, even under cross examination, as such evidence ought not to be admitted. He relied on Salaudeen Vs Mamman (2000) 4 NWLR (pt.686) 63; Tewogbade Vs Agbabiaka (2001) 5 NWLR (pt.705) 38 at 53.
Counsel argued that the Respondent had pleaded that Okpoko Igbozuruike brought Awuchi back to live in her mother’s Mgbala (page 18 of the Records), but in evidence said Okpoko Igbozuruike made a gift of the Mgbala to Awuchi; that there is a world of difference between “a gift of the Mgbala to Awuchi” and “bringing back Awuchi to live in her mother’s Mgbala” that the trial court was therefore wrong in its findings that Okpoko Igbozuruike and/or Onyenachi made a gift of Mgbala Onyenachi to Awuchi; that any such gift (if at all) made to Awuchi, surely will be contrary to the customary law of the people of Owerri Nchi Ise, and therefore void, as Mgbala (under customary law of the people of Owerri Nchi Ise) will naturally and ordinarily devolve on the last son of a deceased mother. He said that the evidence of DW3, to the effect that Gilbert Emeribe and Ozobia Onukwube were present when Onyenachi gave out her Mgbala to Awuchi and/or authorized Awuchi and her children to continue to occupy her (Onyenachi’s) Mgbala upon her demise, amounted to a violation of the customary law of the people of Owerri Nchi Ise, as Onyenachi could not have, and indeed had no right to give out her Mgbala, which upon her demise, would devolve on her last and only son (Okpoko Igbozuruike), in accordance with the customary law of the people of Owerri Nchi Ise. Counsel relied on the case of Buhari Vs INEC (2008) 19 NWLR (pt.1120) 334; Union Bank of Nigeria Vs Patrick Ajagu (1990) 1 NWLR (pt.126) 328 and Section 133(2) of the Evidence Act, 2011, to assert that the burden of proving the gift of the Mgbala by Okpoko Igbozuruike or Onyenachi to Awuchi remained that of the Respondent, who failed woefully to discharge it.
Counsel relied on the evidence of PW2 – Secretary of Oha Owerri Traditional Council of Elders, who said that Oha Owerri Nchi Ise was the custodian of the custom of Owerri Nchi Ise, that under the custom of Owerri Nchi Ise “Nwanwa” (a grandson) having been born by a daughter of the family, was inheritance where his mother has no inheritance; that Mgbala is a kitchen meant for the wives or wife of a man, and at the demise if the woman (wife) the last of the sons inherits the Mgbala, but if she had only one son, it is that son that inherits the Mgbala. See page 67 of the Records. Counsel further referred to the evidence by PW2, who said:
“Under the Owerri Native law and Custom, a married daughter cannot inherit land or property of the father, unless the one given to her by the father. Under our Custom Nwanwa (grandson) has inheritance on the family where the mother is married… Okpoko died leaving the Plaintiff as his only heir and the owner of No. 12, Njemanze Street, Owerri.” (Page 68 of the Records).
Counsel further founded on the evidence of PW2, under cross examination, when he said that when Awuchi came back to the father’s house, she was not sent back and was received; that she was living in her mother’s kitchen, not as of right, because a daughter has no inheritance in her father’s house; that if a married daughter comes back from the husband’s family to her maiden family and she is given the Mgbala to live in, nobody takes that from her, that under the Owerri Nchi Ise native law and custom, if a married woman who is sent away returns to her father’s compound and her dowry refunded to the husband, and if she gives birth to a male child, while in the father’s family, the child is not sent away but he has no inheritance in the family and if the mother of the said son dies, nobody sends the son away, but he has no inheritance in the family. (Page 68 and 69 of the Records). Counsel urged us to rely on the evidence of PW2, being one of the custodians of the customs of their people; he said that the opinion of DW1, DW2 and DW3 on the devolution and/or gift of family property to a married daughter of a family, who returned to her maiden family after the break down of her marriage, and children gotten by her, subsequently, in her maiden home, was useless, irrelevant, inadmissible and without any probative value.
He urged us to hold that the trial court was in grave error when it held:
(a) That the Respondent was entitled, as the only son of Awuchi born into the family of Igbozuruike Njemanze, to inherit the Mgbala Onyenachi, given to his mother by the Plaintiffs’ grandmother;
(b) That if a married daughter of a family returns to her maiden home after refund of her dowry, and she is given Mgbala to live in, no person can retrieve the said Mgbala from her.
(c) That the gift of Mgbala Onyenachi by Okpoko Igbozuruike and Onyenachi being a gift made inter vivos to Awuchi and her children and the act of letting them in possession, extinguished the rights of persons claiming through Okpoko Igbozuruike.
(d) He opposed those findings (according to him) on the ground that neither the pleading nor evidence adduced sustained these findings of fact by the trial Court.
He relied on the case of Elimare Vs Emhonyon (1985) 1 NWLR (pt.2) 177; Nsirim Vs Onuma Const. Co. Nig. Ltd (2001) FWLR (pt.44) 405; Gbedu Vs Itie (2011) ALL FWLR (pt.553) 1857; Tuah Vs Micheal (2011) ALL FWLR (pt.590) 1366, and said that, where a trial Court makes findings of facts predicated on facts not pleaded, even if the facts were pleaded but evidence not led on the facts so pleaded, leading to a wrong conclusion, that this Court (appellate Court) has power to rectify the erroneous findings and make proper findings.
Counsel further argued that even if the Respondent had pleaded those facts and led evidence to prove them, the trial Court would still be wrong to enforce them, having regards to Section 18(3) of the Evidence Act, 2011, which bars Court from giving effect to a custom, if it is contrary to Public Policy, or is not in accordance with natural justice, equity and good conscience. He said that the custom which Respondent relied upon was obviously contrary to public policy and, certainly, not in accordance with natural justice, equity and good conscience, as such custom, if allowed, would encourage promiscuity; spread HIV/AIDS, amoral and immoral conduct by women of Owerri Nchi Ise descent. He relied on Okonkwo vs Okagbuo (1994) 9 NWLR (pt.368) 301; Odock vs The State (2007) 7 NWLR (pt.1033) 369, and said that Respondent was/is not a member of Igbozuruike Njemanze family; that the trial Court was basing its decision on that on mere sentiments, speculations and extraneous matters, which have no role in adjudication.
On Issue 4, Counsel adopted his arguments on issues 2 and 3, that the title to the Mgbala Onyenachi and the entire land/property at 12 Njemanze Street Owerri, reside in Okpoko Igbozuruike, and that the Plaintiff, as the only son of his father, inherited the property. He said that DW2 (Defence) even acknowledged that fact, when he, under cross examination, said “Mgbala land and the place Igbozuruike lived belongs to Igbozuruike.” (Page 84 of the Records)
Counsel submitted that having conceded that Igbozuruike (Okpoko’s father) was the original owner of the property, 12 Njemanze Street, where the Mgbala once stood, it follows, therefore, that the property belonged to Appellants. He relied on Ekpechi Vs Owhonda (1998) 3 NWLR (pt.543) 618 at 634 to say that the law will award title to the party who is able to prove that he derived his title from the agreed former owner of the land. Thus, the Mgbala Onyenachi and/or the entire property, No. 12 Njemanze Street, Owerri, resides in the Appellants. He relied on Fasikun vs Oluronke (1999) 65 LRCN 114; Olohunde Vs Adeyoju (2000) FWLR (pt.24) 1355; Ogunleye Vs Oni (1990) 2 NWLR (pt.135) 745.
Counsel said that the trial Court was erroneous in its findings and conclusion when he held that the Respondent was not a tenant but a member of Igbozuruike Njemanze family after his mother’s (Awuchi’s) return to her maiden home (No. 12 Njemanze Street, Owerri) and her bride price refunded by her parents to her husband. (Page 111 of the Records). He insisted that Respondent did not prove he was member of Igbozuruike family or that the Mgbala was given to Awuchi (Respondent’s mother) by Onyenachi and/or his son, Okpoko Igbozuruike, in their life time; he said that Respondent’s case was that Awuchi inherited the Mgbala and this could not be; that there was no evidence of intervivos gift of the Mgbala to the mother of Respondent. He relied on case of Onobruchiere Vs Esegire (1986) 1 NWLR (pt.19) 799 to say that the trial Court misplaced where the burden of proof lay; that placing the burden of proof wrongly on a party will usually lead to miscarriage of justice, because the Judge’s opinion will normally be weighed unjustly on the relevant issues against such party. He relied on Psychiatric Hospital Management Board Vs Ejitagha (200 ) FWLR (pt.9) 1510; PFIZER Vs CHYZOB (2008) ALL FWLR (pt.414) 1455.
Counsel said that the trial Court rightly found on page 111 of the records, that “a tenant is a person occupying premises whether on payment of rent or not but does not include persons occupying premises under a bonafide claim to be owner of the premises.” Counsel added that by pleadings and evidence, the Respondent did not prove that he occupied the premises under a bonafide claim of right. He relied on his earlier arguments on issues 2 and 3, and said that the fact that Respondent was born at No. 12 Njemanze Street, did not, ipso facto, confer the status of membership of the said family on him, as the custom of Owerri Nchi Ise, which confers the status of family membership on a person born outside wedlock by a daughter of a family, who returned to her maiden home, and her bride price refunded, was neither pleaded nor proved by evidence. He urged us to reverse those findings of the trial Court, as well as the findings and holding on page 112 of the Records, when the trial Court said:
“To drive a man out of his family and deny him right to shelter in his homestead or make an agreeable or alternative arrangement for her (sic), amount to deprivation under Section 42(2) of the 1999 Constitution of the Federal Republic of Nigeria.”
Counsel said home-stead is the house, out-buildings and adjoining land, owned and occupied by a person or a family as a residence. He relied on Black’s Law Dictionary, 9th Edition, Page 802. He said that Mgbala being part of the homestead of Okpoko Igbozuruike, father of Plaintiff/Appellants, devolved on the Plaintiff upon the death of his father, in accordance with the native law and custom of the Owerri Nchi Ise people; that there was no proof that Respondent was part of the homestead. He added that the Respondent suffered no deprivation of his fundamental rights, by so doing; that the trial Court based its decision on sentiments, speculation and extraneous matters which have no role in adjudication. He relied on Lamurde Local Govt. Vs Karka (2012) ALL FWLR (pt.628) 912 at 921; Okonkwo Vs Okagbuo (supra).
On Issue 5, Counsel faulted the findings of the trial Court on page 110 of the Records, that Awuchi allowed the Plaintiff to demolish Onyenachi’s Kitchen (Mgbala) and build his house on it, on the agreement that the Plaintiff would give Awuchi part of the building, after completion; that it was for that purpose that Plaintiff rented a place for the Defendant’s mother at Tetlow Road, Owerri, and paid the house rent for one year, when he was building the house. Counsel referred to paragraph 13 of the statement of defence, on the above claims, and said that that findings was predicated on the claim that the Mgbala had been given to the mother of the Respondent and that she was entitled to inherit the Mgbala; that Respondent and DW2 had stated in evidence that the land belonged to Awuchi; that it was given to her by her late mother Onyenachi Igbozuruike (Pages 74 and 83 of the Records).
Counsel relied on his earlier arguments paragraphs 4.02k and 4.04l (Pages 6 and 19 of the brief) to say that the Respondent’s mother did not inherit the Mgbala. He also relied on paragraph 4.02s and 4.02y of the (earlier argument) to say that no such gift of the Mgbala was made to Awuchi and her children by her mother, Onyenachi, and that Respondent did not even plead the gift. Thus, Counsel said there was no basis for the Appellant to have entered into any agreement with Awuchi (the mother of the Respondent) on the property; that the Appellant was free to do as he pleased with his property, including demolition of the old structure (Mgbala) and building his house there, and he had no reason to enter into agreement with his sister (Awuchi). He also said that Respondent failed to prove the said agreement to share the building on completion.
On Issue 6, Counsel said the counter-claim, wherein the Respondent sought entitlement to the share of his mother in the family property, was founded on the notion of the agreement the Respondent’s mother allegedly had with the Appellant, and also on the alleged custom of the people of Owerri Nchi Ise, which accepts a son begotten outside wedlock by a daughter of the family; that, alternatively, the Respondent wanted monetary compensation for the Mgbala taken away by the Appellant, or a replacement for the same by buying land elsewhere and building a house for him to replace the Mgbala. Counsel faulted the trial Court for granting all the reliefs sought by the Respondent, including the monetary compensation, which it reduced to N200,000.00. He submitted that the awards amounted to double compensation which is not permissible in law.
He further submitted that the trial Court relied on facts which were not pleaded nor proved to grant the reliefs. He founded on his earlier arguments that the custom of Owerri Nchi Ise did not support the allegation of entitlement of Respondent to a share in the family property, based on the purported acceptance of a son born out of wedlock by a daughter of the family, he said that the agreement between Appellant and the Respondent’s mother, over the demolition of the Mgbala and the new building was not established; that there was no pleading and no evidence to sustain the Order of the Court on the Plaintiff to purchase land in Owerri and erect a building for the Respondent as compensation for the Mgbala. He said that relief number one was in alternative to relief numbers (a) and (b) but the Court granted both, amounting to double compensation, occasioning miscarriage of justice. He relied on Ezeani Vs Ejidike (1964) 3 NSCC 306.
On Issue 1, Counsel adopted his arguments in respect of Issues 2, 3, 4, 5 and 6. He added that the facts pleaded by the Respondent were not capable of sustaining the reliefs sought in the Counter-claim and that the Respondent did not prove any of the reliefs claimed by him to justify the decision of the trial Court; he added that damages is usually awarded to a successful party, to compensate him for the damage, loss or injury sustained by the party; that there was no proof that Respondent suffered any damage or injury, to be entitled to the N200,000.00 awarded to him, especially as he failed to prove any proprietary interest in the Mgbala Onyenachi. He relied on Mc-gregor on Damages, 14th Edition, paragraph 9 at page 7.
Counsel urged us to resolve the issues for Appellant, allow the appeal and reverse the decision of the trial Court.
Responding, Counsel for Respondent, J.C. Uwazuruonye Esq, who settled the brief, on their issue one, said that the Appellant had pleaded and led evidence to portray the Respondent as a tenant at will, and failed to disclose that the Respondent was a son of Appellant’s sister and that the Mgbala (land sought by Respondent) had been given to his mother by his grandmother (Onyenachi), who was also the mother of the Appellant’s father (original Plaintiff); and that the Respondent was born in the family of Igbozuruike at a time the Appellant was overseas (outside the Country) and without any communication with the family for many years and so the Respondent was accepted by the parents of her mother and named Oguguomakwa – as the only hope of the family. Counsel noted the findings of the trial Court on this pre and deceit by the Appellant, when it said:
“The Plaintiff in his evidence stated that the Defendant was his workman and he gave him one room in his house to live as a workman. I do not accept the Plaintiff’s evidence that the Defendant lives at No. 12 Njemanze Street, Owerri, as a tenant. As said earlier, the Defendant is a member of Igbozuruike family, born at No. 12 Njemanze Street, Owerri. I also find as a fact that both Okpoko Igbozuruike (father of the Plaintiff) and Onyenachi (the Plaintiff’s grandmother) gave Awuchi the kitchen of Onyenachi to live with her children.”
(See page 109 of the Records).
Counsel submitted that the above findings of fact and conclusion were never appealed against by the Appellant and so they remained binding. He added that Appellant did not appeal against the dismissal of his claim by the trial Court; he argued that the omnibus ground of the appeal, that the Judgment was against the weight of evidence, did not cover specific findings of the Court not appealed against. He relied on the case of Nigeria Maritime Services Ltd vs Alhaji Bello Afolabi (1978) 2 SC 79 at 81-82.
On Issue 2, whether the Respondent had proved his Counter-claim, Counsel answered in the affirmative. He submitted that all the issues formulated by the Appellant for determination of this appeal, revolved on 1st arm of the reliefs of the Respondent in his Counter-claim (that the Mgbala, originally, belonged to Onyenachi, the mother of Awuchi (Respondent’s mother) and the said Onyenachi was the mother of the original Plaintiff, that is, both the mother of Respondent and the father of Plaintiff were of the same parents). He argued that the Respondent was a member of the family of Igbozuruike, entitled to the Mgbala which was given to the Respondent’s mother, Awuchi, by Onyenachi (Respondent’s grandmother); and that the tradition of Owerri Nchi Ise permitted Awuchi to have children in her maiden family, having been sent away from her matrimonial home and the bride price refunded, and such a child was accepted as a member of the mother’s family.
Counsel relied on the evidence of DW2 and DW3 (Mrs. Grace Mbachi and Martin Njemanze, respectively), who said that the Respondent was born in the family, 12 Njemanze Street, Owerri; that Okpoko (father of the original Plaintiff) was the person who brought his sister, Awuchi (the mother of Respondent), back to the family house (after her marriage was problematic) and refunded the bride price, gave her a place in the family house to live in; that Awuchi lived with the mother in the Mgbala. DW2, (sister of the Respondent) said:
“To my knowledge, the Plaintiff approached my mother that he wanted to build at the said Mgbala and after building he would give my mother her building, toilet, kitchen and bedroom which formed part of the Mgbala. When the Plaintiff completed the building he gave my mother his father’s parlor and never gave her kitchen and toilet as promised. The Plaintiff’s mother at this stage started to drive away my mother from the part of the building given to her. My mother reported the matter to Barrister Njemanze (now Chief Judge of Imo State). Paragraph 81 of the Records).
DW3 (an 85 year old member of Njemanze family) said:
“The proper name of the Defendant is Isaac Igbozuruike Njemanze. When the father of the Plaintiff died, the mother of the Defendant was brought back from Ihiagwa where she was married. When she was brought back, their father authorized her to be in his house and procreate. She gave birth to the Defendant, who was called Oguguomakwa, because the mother of the Defendant had no other male child. The Njemanze family accepted the Defendant as a member of the family and he is a member of our family meeting. When the grandmother of Isaac i.e. Defendant was about to die, she said that her daughter Awuchi and the Defendant should take possession of her house; that if she died, that if the Plaintiff returned from overseas (sic) while her daughter (Awuchi) and her son the Defendant should live at Mgbala her own house. We were three persons she told this… myself, Gilbert Emeribe and Ozobia Onukwugha… Onyenachi got the Mgbala where she lived from her husband Igbozuruike Njemanze… when he (Plaintiff) returned (from abroad) he told his sister (Awuchi) that he would like to build a house at the said Mgbala, Awuchi told us and we told her to accept. The Plaintiff never built (sic) the house, at Mgbala rather he converted the Mgbala to a garage. I know when Awuchi died . . . she was laid in state at a place where the Plaintiff gave her when the Plaintiff demolished the Mgbala. After her burial, the Plaintiff locked up the place and instructed the (of Awuchi’s) children to remove the property of Awuchi from the place. The children had no other place to live other than the place she was living. Under the custom of Owerri Nchi Ise, the child of a man, whether man or female, inherits the mother’s mgbala. Okpoko Igbozurinke was the senior to Awuchi, but Awuchi was entitled to inherit the mgbala. It is not time to say the Defendant is a tenant to the Plaintiff. The Defendant is not a stranger in the family.” See page 86 – 87 of the Records.
Under cross examination, the DW3 said:
“Under the custom of Owerri Nchi Ise, a woman has a right to give out her house, a kitchen to her children. Mgbala is where the husband gives the wife to live.” (Page 89 of the Records).
Counsel submitted that the trial Court was therefore right in its findings, when it resolved the issues for the Respondent, as the evidence of DW2 and DW3 were not challenged. He relied on the findings of the trial Court on page 105 – 106 of the Records, on fact that Respondent was born in the family homestead and was accepted as a member of Igbozuruike Njemanze family according to the custom of the Owerri Nchi Ise people.
Counsel also asserted that the Mgbala of Onyenachi had been given to Awuchi as a gift to live in with his children; that the Appellant was entitled to inherit the Mgbala of his mother, not that of the grandmother (Onyenachi). He relied on the evidence of DW1, DW2 and DW3. He relied on the case of Ekpa & Ors Vs Utong (1999) 6 NWLR (pt 197) where Agu JSC said:
“I think it has to be conceded that a person is completely without power or competence to revoke a completely constituted gift of land made inter vivos by his ancestor who let the donee into possession . . . unless he can show that such a gift was null and void, ab – initio, or that the gift was subject to a condition which has been broken. But none is the case here. Such a gift of land completed with delivery of possession, according to custom, is a transfer of ownership of the land to the donee and extinction of the rights of those who claim through or under the Donor… “what is given is given”
On Issue 3, Counsel answered in the affirmative, that the trial Court was right in granting the reliefs sought in the counter-claim and dismissing the claim of the Appellants. Counsel relied on the findings of the trial Court on pages 113 and 115 of the Records and said that those findings had not been appealed against and so remained valid and conclusive on the issue. He added that the various customs which Appellant said were not pleaded, had been pleaded; that the Appellants were not correct in their statement of the custom of Owerri Nchi Ise, relating to acceptance of a child born into the maiden family of the mother after her return home from a failed marriage, whereof the bride price is returned.
Counsel also argued that the Appellants’ grounds of appeal did not arise from the judgment of the Court below, making the issues distilled for determination nebulous and mere academic exercise not related to live issues decided by the Court. He relied on Kurfi Vs Mohammed (1993) 2 NWLR (pt. 277) 602 (CA); El-Tijjani Vs Saidu (1993) 1 NWLR (pt. 268) 246 CA.
He urged us to resolve the issues against Appellants and dismiss the appeal.
RESOLUTION OF THE ISSUE
I shall consider this appeal on the issues by the Appellants, but I think Appellants’ six issues for determination of the appeal can be reduced to three (since the issues 1, 2, 3 and 5 appear to flow together), as follows:
(1) Whether, by the evidence before the trial Court, the Respondent had established his counter-claim, that by the custom of Owerri Nchi Ise people, the Respondent, having been born (and accepted into the family Igbozuruike Njemanze) by Awuchi, the daughter of the family, whose marriage had failed and her bride price refunded, was entitled to mgbala of her grandmother (Onyenachi), which mgbala had been given to his mother (Awuchi) inter-vivos, by her mother (Onyenachi), especially as the original Plaintiff had had agreement with Awuchi, when he wanted to demolish the mgbala, promising to replace same with a share in the new building he was to make at the site of the mgbala? (grounds 1, 2, 3, 4, 6, 8, 9 and 12)
(2) Whether the trial Court was not in error in dismissing the Appellants’ claim for possession of the one room with appurtenances situate at No. 12 Njemanze Street, Owerri, saying that Respondent was a member of Okpoko Igbozuruike family and that to drive him out of his family, denying him right to shelter in his home-stead, without alternative arrangement for him, would amount to a deprivation under Section 42(2) of the 1999 Constitution of the Federal Republic of Nigeria? (grounds 10 and 11).
3. Whether the order of the trial Court for the Appellant to purchase land around Owerri and erect a building for the Respondent to compensate him for taking over the Mgbala Onyenachi and also to pay to the Respondent N200,000.00 as compensation in respect of the said Mgbala Onyenachi, did not amount to double compensation? Ground 13
I shall consider the Appeal on the above three (3) rephrased issues. Appellant had abandoned grounds 5 and 7 of the Appeal and they are hereby struck out.
Did the Respondent establish a gift of the Mgbala to his mother and, if yes, that by the custom of Owerri Nchi Ise, he was entitled to the share of his mother’s (Awuchi) right in the property (Mgbala) from her family, the Mgbala, the same having been granted or given to his mother, intervivos, and he having been born and accepted in the Igbozuruike Njemanze’s family?
Appellants’ strong argument was that the Respondent was born out of wedlock by Awuchi (Appellants’ aunt) into the family of Igbozuruike Njemanze; that he (Respondent) had no inheritance in the property of their grandfather/grandmother, particularly, the mgbala (the traditional abode of the grandmother, Onyenachi) which they said, by traditional law, devolved on their father (the original Plaintiff) who was the only son of Okpoko Igbozuruike Njemanze; the Plaintiff/Appellants had renamed the Respondent after the ex-husband of his mother (Awuchi), saying he (Respondent) was to take his inheritance from Onuador (who married his mother). Though Appellants admitted that the Respondent was born, after Awuchi had returned to her maiden home, at No. 12 Njemanze Street, Owerri, and was accepted by Onyenachi (his grandmother) and by Okpoko Igbozuruike (Awuchi’s brother, who brought her home and refunded her bride price), they argued that that did not entitle the Respondent to have a share in the heritage of the family, which, according to the custom of the people of Owerri Nchi Ise, devolved on the male children and excludes married daughters. Appellants even questioned the claims that Awuchi’s bride price was refunded, and contested the claim that Onyenachi (Plaintiff’s grandmother) had made a gift of the mgbala to Awuchi, to live with her children. They also denied any agreement between Awuchi and the Plaintiff on the demolition of the Mgbala and how to replace the Mgbala.
But the evidence of DW3 – Martin Njemanze, rather supported the evidence of the Respondent, when he (DW3) appeared to state the correct version of the customs of Owerri Nchi Ise, that the Respondent, who was born at No. 12 Njemanze Street, Owerri, by Awuchi, was accepted as a member of the Igbozuruike family and named, Isaac Igbozuruike Njemanze (and was also called Oguguomakwa). See pages 86 and 87 of the Records.
“The proper name of the Defendant is Isaac Igbozuruike Njemanze. When the father of the Plaintiff died, the mother of the Defendant was brought back from Ihiagwa where she was married. When she was brought back, their father authorized her to be in his house and procreate. She gave birth to the Defendant, who was called Oguguomakwa, because the mother of the Defendant had no other male child. The Njemanze family accepted the Defendant as a member of the family and he is a member of our family meeting. When the grandmother of Isaac i.e. Defendant was about to die, she said that her daughter Awuchi and the Defendant should take possession of her house; that if she died, that if the Plaintiff returned from overseas (sic) while her daughter (Awuchi) and her son the Defendant should live at Mgbala her own house. We were three persons she told this… myself, Gilbert Emeribe and Ozobia Onukwugha… Onyenachi got the Mgbala where she lived from her husband Igbozuruike Njemanze… when he (Plaintiff) returned (from abroad) he told his sister (Awuchi) that he would like to build a house at the said Mgbala, Awuchi told us and we told her to accept. The Plaintiff never built (sic) the house, at Mgbala rather he converted the Mgbala to a garage. I know when Awuchi died . . . she was laid in state at a place where the Plaintiff gave her when the Plaintiff demolished the Mgbala. After her burial, the Plaintiff locked up the place and instructed the (of Awuchi’s) children to remove the property of Awuchi from the place. The children had no other place to live other than the place she was living. Under the custom of Owerri Nchi Ise, the child of a man, whether male or female, inherits the mother’s Mgbala. Okpoko Igbozuruike was the senior to Awuchi, but Awuchi was entitled to inherit the Mgbala. It is not time to say the Defendant is a tenant to the Plaintiff. The Defendant is not a stranger in the family.” See page 86 – 87 of the Records.
The DW2 (a sister to the Respondent) also corroborated the evidence of DW1 and DW3, that the Mgbala was given to Awuchi to live with her children by Okpoko Igbozuruike and Onyenachi (the owner of the Mgbala), who had accepted the Respondent in the family as a son, especially as the Plaintiff (father of the Appellants) was overseas then and without any contact with the parents; that the Respondent was therefore seen as their consolation to the family. DW2 also spoke about the oral agreement between her mother (Awuchi) and the father of the Appellants (who was the original Plaintiff), on the demolition of the Mgbala given to Awuchi and the replacement of same in the new house to be built by the original Plaintiff.
I think the above evidence of the Respondent and his witnesses was admitted by the PW2, Oha Shedrack Ugwuanya Obichezo, when he said under cross examination:
“If a married daughter comes back from the husband’s family to her maiden family and she is given the Mgbala to live in, nobody take (sic) that from her under the Owerri Nchi Ise custom… If a married woman who is sent away returns to her father’s compound and her dowry refunded to the husband and if she gives birth to a male child while in the father’s family, the child is not sent away, but he has no inheritance in the family. Under the said custom, if the mother of the said son dies, nobody sends the son away, but he has no right of inheritance and (sic) the family… but if he behaves badly he can be sent out of the family. I was not told by the plaintiff that the Defendant was not behaving well.” Page 69 of the Records.
PW2 had also said in his evidence in-chief, on page 68 of the Records of Appeal:
“Under the Owerri Native law and custom, a married daughter cannot inherit land or property of the father, unless the one given to her by the father. Under our custom an Nwanwa or grandson has inheritance on (sic) the family where the mother is married.”
It was based on such evidence, as stated above, that the trial Court made the following findings and conclusions:
“It is in evidence of the Plaintiff that Awuchi and her husband had problems which necessitated the return of Awuchi to the maiden home and that his (Plaintiff’s) father, Okpoko Igbozuruike gave her a place to live in Igbozuruike compound, where she lived and died. The DW2 and DW3 stated that the Plaintiff’s father (Okpoko Igbozuruike) refunded the bride price of Awuchi to Godwill Onuador, her husband, that the Plaintiff’s father asked Awuchi to stay in their home and raise children. This piece of evidence was not challenged or dislodged by the Plaintiff. I am entitled to act on the unchallenged evidence of the witness . . . It is also the evidence of PW2 and DW1 that it is the custom of the Owerri Nchi Ise that if a married woman’s bride price is refunded to her husband by her parents and she is accepted by her parents’ family, with authority to raise children, both the woman and her children become members of the parents’ family. It is the evidence of DW1 that he was born into the family of Igbozuruike and that he has been living in that family of Igbozuruike… since he was born without being challenged by the family . . . From these pieces of evidence I find as a fact that Awuchi, the mother of the Defendant, returned after her marriage… and her bride price refunded to the husband. The Defendant’s mother was accepted back in the maiden family with authority to raise children; the defendant was born into the family of Igbozuruike Njemanze. The defendant is a member of Igbozuruike Njemanze family; the father of the Plaintiff was the head of family of Igbozuruike Njemanze at the time the defendant’s mother was received into the family and her bride price refunded. The action of such head of the family is binding on all the members of the family, including the subsequent Heads of the family. By Section 151 of the Evidence Act, the Plaintiff is estopped from denying the membership of the defendant in Igbozuruike family.”
On whether the Respondent was entitled to the Mgbala Onyenachi, the trial Court said:
“The Plaintiff stated in evidence that when Awuchi (the mother of the defendant) returned from her husband’s place, Ihiagwa, his father, Okpoko Igbozuruike, gave her a place in the compound to live and when he (Plaintiff) came back from overseas, he saw Awuchi living in the compound. Under cross examination, the Plaintiff stated that under the customary law of Owerri Nchi – Ise, if a married daughter return to her father’s home, after refund of her dowry and she is given the Mgbala to live in, nobody takes the Mgbala away from her. The DW2 stated that the Plaintiff’s father, Okpoko Igbozuruike asked Awuchi (her mother) to live in the family and reside with his own mother, Onyenachi, in her kitchen i.e. Mgbala; that Awuchi and her children lived in Onyenachi’s kitchen and after the death of Onyenachi, Awuchi and her children continued to live in Onyenachi’s kitchen i.e. Mgbala. This piece of evidence was re-stated by DW3, an 85 year old man and older member of Njemanze family. The witness further stated that Onyenachi said in his presence, and in the presence of Gilbert Emeibe and Ozobia Onukwube, that after her death Awuchi and her children should live in the kitchen. These pieces of evidence were not rebutted by the Plaintiff. Therefore, I am bound to accept them. The Defendant as DW1 stated that the Plaintiff agreed with her (sic) mother Awuchi to pull down the mud house of Onyenachi, where the defendant and his mother were living, for the Plaintiff to erect another building, on the condition that on completion of the new building, the Plaintiff would give the defendant’s mother part of the house to live in. The Plaintiff denied this arrangement and rather said he relocated the defendant’s mother (Awuchi) to another place i.e. at No 22 Tetlow Road Owerri and paid the rent for one year and thereafter he brought the defendant’s mother back to the compound and gave her one room (down stairs) in his father’s old house… The Plaintiff in his evidence stated that the defendant was his workman and he gave him one room in his house to live as a workman. I do not accept the Plaintiff’s evidence that the defendant lives at No. 12 Njemanze Street, Owerri as a tenant. As said earlier, the defendant is a member of Igbozuruike family born at No. 12 Njemanze Street, Owerri. I also find as a fact that both Igbozuruike (father of the Plaintiff) and Onyenachi (the Plaintiff’s grandmother) gave Awuchi the kitchen of Onyenachi to live with her children. Further-more, Awuchi allowed the Plaintiff to demolish Onyenachi’s kitchen and build his house on it on the agreement that the Plaintiff would give Awuchi part of the building after completion. It was for this that the Plaintiff rented a place for the defendant’s mother at Tetlow Road, Owerri and paid the house rent for one year, when he was building the house… after the completion of the house, the Plaintiff failed and refused to give to the defendant’s mother part of the house, rather he gave her the parlor of his old house, which the Plaintiff took over in 2000 after the death of the Defendant’s mother, Awuchi. The gift of Mgbala was a gift inter vivos made by Okpoko Igbozuruike (father of the Plaintiff) and Onyenachi to Awuchi…”
I cannot fault those profound findings. It must, however, be stated that this is not a case of title to land, nor one to determine the paternity of the Respondent, or one on succession, that is, whether the Respondent can qualify as heir of the late Okpoko Igbozuruike (who adopted him) or be joint heir with the Plaintiff, (the father of the Appellants), to struggle over the family property of Igbozuruike.
The simple case of the Respondent in my view, had to do with his right to the property (Mgbala Onyenachi) which, by evidence, was given to his mother, inter vivos, by both his uncle (Okpoko Igbozuruike), who was the father of the Plaintiff/Appellants, and by Onyenachi (the grandmother of the Respondent, who was also the grandmother of the Plaintiff). The evidence that the Onyenachi’s kitchen (Mgbala) was given to Awuchi to live with her children, was admitted by the Appellants, but they sought to rely on the alleged custom that only a son could inherit the Mgbala, (not a daughter) to deny the Respondent right to the Mgbala.
Of course, such custom would clearly pass as obnoxious custom (that is, if it existed), to deny the Respondent the right to step into what was given to his mother, and which he and his siblings were enjoying with the mother, when she was alive.
Appellants, by the suit, merely sought to remind the Respondent of the circumstances of his birth – that he was born out of wedlock in her mother’s maiden family, at 12 Njemanze Street, Owerri! Despite the fact that his (Plaintiff’s) father, Okpoko Igbozuruike, had accepted the Respondent and had taken him as a son, when the Plaintiff was frolicking abroad, with no communication with home, Plaintiff thought he could change what the father (Okpoko) and grandmother (Onyenachi) had done! The Plaintiff and Respondent were cousins and were both born into the family of Igbozuruike Njemanze, 12 Njemanze Street Owerri. What right did the Plaintiff have to judge the Respondent and make him miserable, exposing him to ridicule and scorn by reason of the circumstances of his birth, in which the Respondent had no part to play?
It is a shame, in my view, that the Plaintiff, who lived abroad for many years and his children (Appellants), still appeared primitive in their minds, and greedy in spirit, subjecting the Respondent to such stress and agony, just to grab the property left behind by their grandmother, alone, to the detriment of his cousin (Respondent), just because he was born out of wedlock! The old Okpoko Igbozuruike, who may not have had the type of exposure the Plaintiff had, appeared better liberated, sound and accommodating, when he accepted to protect his only sister, and provided for her security in her family, when she had marital problems. He also accepted the Respondent, when he was born and gave him a place in the family. The Plaintiff did not appear to be a family person, and would rather throw the Respondent and his sibling out and expose them to danger and ridicule, so as to grab and enjoy the family property, alone! The 1999 Constitution of the Federal Republic of Nigeria must have had the likes of the Plaintiff/Appellants in contemplation, when it enacted in Section 42(1)(a) and (2), as follows:
“(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person –
(a) Be subjected either expressly by, or in the practical application of any law… to disabilities or restriction to which citizens of Nigeria of other communities, ethnic groups, places of origin, circumstances of birth, sex, religious or political opinions are not made subject, or
(b) ………….
(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstance of his birth.”
I agree with the trial Court, that attempt to deny the Respondent right to the Mgbala, given to his mother by her grandmother, simply because he was born out of wedlock, (albeit on the same status as the Plaintiff, as male grandchild of the family of Igbozuruike), would be discriminatory and deprivative, as the alleged custom sought to rely on (if in existence) would be unconstitutional, null and void, and would offend the Provisions of Section 18(3) of the Evidence Act, which Appellant even sought refuge in. That Section says:
“In any Judicial proceedings, where any custom is relied upon, it shall not be enforced as law, if it is contrary to public policy, or is not in accordance with natural justice, equity and good conscience.”
I think, it is against Public Policy, as stated in Section 42(2) of the 1999 Constitution, to deprive the Respondent of a right to a gift to his mother by his grandmother, simply because, unlike the Plaintiff, begotten by a male member of the family, he (Respondent) was given birth to by a daughter (Awuchi) of the family of Igbozuruike, (not by a son of the family and the custom allows no woman to inherit her father’s property)! It is, equally, not equitable, and in fact sounds offensive for the Plaintiff, a grandson of Igbozuruike (like the Respondent) to grab all the property of Igbozuruike and also to stretch forward to take away even what was given to Awuchi, the mother of Respondent, inter vivos, by her late mother and uncle (the father of the Plaintiff)!
The Supreme Court decision in the case of Ekpa Vs Utong (1991) 6 NWLR (pt.197) 258 at 284, appears very relevant here where Agu JSC said:
“I think it has to be conceded that a person is completely without power or competence to revoke a completely constituted gift of land made inter-vivos by his ancestor who let the donee into possession… unless perhaps, he can show that such a gift was null and void ab initio or that the gift was subject to a condition which has been broken… such a gift of land completed with delivery of possession according to custom is a transfer of ownership of the land to the donee and extinction of the rights of those who claim through or under the Donor. The Learned Chief Magistrate correctly summed it all up in his Judgment where he said “What is given is given…” See also (1991) LPELR – 1084 SC.
I resolve this issue against the Appellants, as I think the trial Judge was right to hold for the Respondent, that he was entitled to the Mgbala, which was given to his mother by her mother (Onyenachi) and her brother (Okpoko Igbozuruike), for her to live with her children. It was in vain that Counsel tried to question the state of pleadings on the issues. The facts were all pleaded.
On Issue 2, whether the trial Court was right to dismiss Appellants’ claim, it can be seen that Appellants’ founded their claims on falsehood and deceit, which made nonsense of their case. The Plaintiff had created the impression that the Respondent was his workman and tenant, at will, in the one room he allegedly occupied. In paragraphs 3, 6 and 9 of the statement of claim, he said:
“(3) The defendant is a tenant at will, having been given one room to reside by the Plaintiff on the ground floor of the main building.
(6) The defendant had no valid title to any part of the premises and is only a tenant at will, which tenancy was determined by a Notice to quit on 26/01/2001.
(9) The defendant was brought into the premises on humanitarian basis at a point in time when the defendant was working for the Plaintiff.”
With the above pleadings, the Plaintiff was living in a fool’s paradise, lying to himself and trying to deceive the Court! He never gave any inkling that the Respondent was his cousin, who was born into the family at 12 Njemanze Street, Owerri and accepted by his (Plaintiff’s) father and named after Igbozuruike, the great grandfather of the Plaintiff. The lies of the Plaintiff were exposed, when the Defendant filed his statement of defence and Counter-claim, to reveal his true status on the premises, 12 Njemanze Street, Owerri. That was when the Plaintiff came to his correct senses, but yet hatched another story of the Respondent having been born outside wedlock, and that Godwill Onuador (who married Respondent’s mother) had accepted the Respondent, while he Godwill was alive; that he gave him (Respondent) a name and took part in his education in the Primary School and that the Respondent even attended the funeral of the said husband of his mother! He also claimed that the bride price of Awuchi (Respondent’s) mother, was not refunded to the husband, even though, he (plaintiff) admitted Awuchi had returned to her maiden home, at 12 Njemanze Street, Owerri. The Plaintiff then went on to the claim of inheritance, as sole male successor of his father, and contested the gift of the Mgbala (Onyenachi’s kitchen) to Awuchi, the mother of Respondent, when she returned from her matrimonial home! I have not, however, seen in the Plaintiff’s pleading and evidence, where he apologized to the Court, for all the lies he presented to the Court, on oath, that the Respondent was only his tenant at will at the premises, and was his (Plaintiff’s) workman, whom he brought into the premises on humanitarian grounds!
The claim of the Plaintiff, as per his Statement of claim, filed on 5/4/2001 (page 6 of the Records of Appeal) was for:
“Possession of the said one room with appurtenances situate at No. 12 Njemanze Street, Owerri in Owerri Municipal Council Area of Imo State.”
Even when the Plaintiff (Appellants) filed Amended Reply to the Statement of Defence and Defence to the Counter-claim, and alleged a lot of things that, completely, changed the tenor and purport of his case, he never amended his case to reflect any claim for title or indicate anything beyond the claim for possession of the premises! See pages 50 to 58 of the Records.
Of course, the Plaintiff did not establish his claim of tenancy, at will, against the Respondent for recovery of possession of the one room he allegedly gave to the Respondent. If anything, his Reply to the Statement of Defence and Defence to the Counter-claim, and evidence, completely compromised his claim of landlord and for recovery of the property from the Respondent. In his findings, the trial Court said:
“The Plaintiff claims that the defendant is his tenant and the defendant stated in his evidence that he is a member of Igbozuruike Njemanze family and that he was born into the family. He said he is not a tenant of the Plaintiff. A tenant is a person occupying premises whether on payment of rent or not, but does not include a person occupying premises under a bonafide claim to be the owner of the premises. See Rent Control and Recovery of Premises Law of Imo State as variously amended. The case of African Petroleum Ltd vs Owodunni (1991) 8 NWLR (pt. 210) 391. By the evidence of DW1, DW2 and DW3 it was established that the defendant was born into the family of Igbozuruike Njemanze at No. 12 Njemanze Street, Owerri.” page 111 of the Records.
The claim of the Appellants at the trial Court was therefore self defeating and so failed, woefully, and the trial Court was right to dismiss it. I resolve this issue against the Appellants.
On Issue 3, Appellants’ complaint was that by ordering the Plaintiff to buy land in Owerri and build a house for the Respondent as compensation for the Mgbala taken away by the Plaintiff, and to also pay N200,000.00 to the Respondent as compensation for the Mgbala, that amounts to double compensation.
The trial Court, on page 114 of the Records, had said:
“Judgment is hereby entered for the defendant as follows:
(1) The defendant is entitled to his mother’s share of the family building on the Plaintiff’s agreement with the defendant’s mother, Awuchi and custom of Owerri Nchi-Ise, which accepts a son born by Mgboto who returned to her maiden home and her bride price repaid. In the alternative:
(a) The Plaintiff is ordered to purchase land around Owerri and erect a building for the defendant to compensate for the house of his mother, Mgbala, knocked down by the Plaintiff upon which the family house was erected.
(b) The Plaintiff to pay N200,000 (Two Hundred Thousand Naira) as compensation to the defendant for taking the grandmother’s Mgbala given to the defendant’s mother, Awuchi and passed on to the defendant.”
The above award, were the very reliefs sought by the Respondent in his counter-claim, except that, where the Court granted N200,000.00 (Two Hundred Thousand Naira), the Respondent had prayed for N5 Million. (See page 21 of the Records of Appeal).
Counsel for the Appellants had submitted on page 27 of the brief (paragraph 7.02) thus:
“The lower court at page 114 of the records of appeal granted all the reliefs claimed by the Respondent but merely reduced the monetary compensation to Two Hundred Thousand Naira (N200,000.00). It is submitted that the award complained of herein is tantamount to an award of dual compensation against the Plaintiff in favour of the Defendant, which is not permissible in law.”
Appellants did not explain or elaborate how the alternative award (a) and (b) would amount to double compensation, if he elected to obey that alternative.
I think this Court cannot be of any assistance to the Appellants, in the absence of any submission to demonstrate how the alternative award could amount to double compensation. The rule is always that a party complaining against a decision of a Court, has a duty to explain and demonstrate by credible argument, how or what makes the decision wrong. He should not leave it to the appellate Court to speculate or conjecture. Ukachukwa and Ors Vs Ihejirika & Ors (2014) LPELR – 24102 (CA); Chidebelu & Anor Vs Probate Registrar High Court of Anambra State & Ors (2013) LPELR – 21215 (CA); Alaribe Vs Okwuonu (2015) LPELR – 24297 (CA), pages 19-20 thereof where we said:
“This Court is not expected to undertake assignment posed by speculation of the Respondent, to call up all the grounds of appeal and (records) study to determine which one conforms with the Respondent’s allegation and which one does not, if the Respondent failed to do his home work”.
In any case, I think Appellant can settle for the first award by releasing the Mgbala, or substitute for it, to the Respondent at No. 12 Njemanze Street, Owerri, if he thinks the alternative award is double compensation!
I also resolve this issue against Appellants and dismiss the appeal for lacking in merit.
Appellants shall pay the cost of this Appeal assessed at Fifty Thousand Naira (N50,000.00) only.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree
IGNATIUS IGWE AGUBE, J.C.A.: I have been privileged to have read the Judgment of my learned brother I.G. MBABA, JCA and I have nothing more to add than to agree with him that the Appellants and the Appeal is dismissed for lacking in merit.
Therefore, I abide by the order as to costs.
Appearances
NATHS EPELLE ESQFor Appellant
AND
J.C. UWAZURUOYE ESQ WITH D.F. UZOMA ESQ, C.C. IWUORIE (MRS.) AND I.O. MANUKWUE ESQ.For Respondent
