OKEBRAM MARK v. PST. IFEANYICHUKWU IRONU & ORS (2019)

OKEBRAM MARK v. PST. IFEANYICHUKWU IRONU & ORS

(2019)LCN/12860(CA)

In The Court of Appeal of Nigeria

On Friday, the 15th day of March, 2019

CA/OW/215/2015

RATIO

ARBITRATION: THE BINDING NATURE OF NATIVE ARBITRATION

“See the following cases on the binding nature of Native arbitration and when applicable: Ojibah Vs Ojibah (1991) LPELR 2374 (SC); Onyenge & Ors Vs Ebere (2004) LPELR 2741 SC; Onyenawuli Vs Onyenawuli & Anor (2017) LPELR 42661 (CA); Agu Vs Ikewibe (1991) 3 NWLR (Pt.180) 385 (SC); Oparaji Vs Ohanu (1999) 9 NWLR (Pt.618) 290. To enforce a decision of arbitration as binding on the parties, the following must be established:

(1) A voluntary submission of the parties in dispute to an arbitration of one or more person(s);
(2) An agreement of the parties, either expressly or by implication, that the decision of the arbitration will be accepted as binding.

(3) The said arbitration was in accordance with the custom of the parties of their trade or business;
(4) The arbitrators reached a decision and published their award and
(5) It was accepted at the time it was made. See Onyenawuli Vs Onyenawuli (supra); Okwaranyia Vs Eke (1996) 3 NWLR (Pt. 436) 335; Ohiaeri Vs Akabeze (1992) NWLR (Pt. 221) 1; Iwuala Vs Chima (2016) LPELR 40970 CA; Duru & Ors Vs Duru & Ors (2017) LPELR 42490 CA.” PER ITA GEORGE MBABA, J.C.A.

CUSTOMARY LAW: NRACHI CUSTOM ON INHERITANCE

“I strongly feel that Nrachi custom is no longer worthy of application with modern trends. In the main, it is a farce, a window dressing designed to cheat the women folk. I have no hesitation in declaring that that Nrachi custom is against the dictates of equity. It is no doubt repugnant and contrary to natural justice, equity and good conscience. It is not worthy of application and I declare it as being unenforceable in the judicial realm and no Court of record should countenance or take judicial notice of it. In the result, a female child does not need the performance of Nrachi ceremony on her to be entitled to inherit her deceased father’s estate.” PER ITA GEORGE MBABA, J.C.A.

CUSTOMARY LAW: DISCRIMINATION ON FEMALE INHERITANCE

“There are many decided authorities of this Court and the apex Court banishing discrimination against female children and upholding their right to share in the estates of their parents. See the case of Ukeje Vs Ukeje (2014) 58 NSCQR 531; (2014) LPELR 22724 (SC); Igbozuruike Vs Onuador (2015) LPELR 25530 CA; Duru Vs Duru (2016) LPELR 40444 CA; See also Section 42 of the 1999 Constitution, as amended. Thus, parent(s) without a male child, need not resort to the ridiculous extreme to deny his daughter right to marry, to confine her to immorality and amorous relationship with strange men, under her father’s roof, to satisfy her parent(s) desperation for a male child to carry on his name, or perpetuate his lineage and inherit him. Children are gifts from God, who creates them, males and females gives and same as He wills, and every child should be received with utmost thanks, appreciated and nurtured to one?s aspiration and ability, whether male or female, knowing that the child is entitled to succeed him/her (Parent), whatever the child turns out to be.” PER ITA GEORGE MBABA, J.C.A.

FUNDAMENTAL RIGHT: FREEDOM FROM DISCRIMINATION

“The above constitutioned provisions, effectively removes and penalizes any reference to a citizen of Nigeria as ‘illegitimate’, or ‘bastard’ as every citizen is legitimate, treasured and entitled to equal rights available all citizens. See also Duru Vs Duru & Ors (2016) LPELR 40444 CA; Anozia Vs Nnani & Anor (2015) 8 NWLR (Pt.1461) 241.
In that case of Duru Vs Duru & Ors (supra), it was held: Thus, it is not only Traditional/Customary Law of the Igbos of Mbaitoli L.G.A that acknowledges this practice of accepting a child of unmarried daughter as one of the members of the family of the father of the mother. This practice appears to be accepted all over the country and it accords with our national Constitution, which abhors discrimination of a child or citizen of Nigeria because of the circumstances of his birth.” PER ITA GEORGE MBABA, J.C.A.

JUSTICES

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria

Between

OKEBRAM MARK Appellant(s)

AND

1. PST. IFEANYICHUKWU IRONU
2. ANYACHUKWU IRONU
3. NNMADI IRONU
4. BRIGHT IRONU
5. EBERE IRONU Respondent(s)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment):

The appeal is against the Judgment of Abia State High Court in Suit HU/18/2010, delivered on 19th November, 2014 by Hon. Justice C.C. Jones Udeogu, wherein the learned trial Court granted some reliefs sought by the Plaintiffs and dismissed the counter-claim by the Defendant.

At the lower Court, the Plaintiffs, (now Respondents) had sought the following reliefs:

a) A declaration that the claimants, are according to the native law and custom of Umueze Alala Emede Autonomous Community, Ibeku Umuahia North L.G.A. of Abia State, entitled to succeed to and inherit the estate of Ironu Eboh;

b) A declaration that the claimants are entitled to the grant of statutory right of occupancy to the pieces or parcels of land which formed the estate of Ironu Eboh, which said estate include among others the following pieces or portions of lands, to wit:

(1) Ala Mmiri, (2) Iyi Achi, (3) Ihu Oku, (4) Oru Mkpuru, (5) Ukwu Udara (6) Ndagbite (7) Isi Ikwu, (8) Uhu Ochie and (9) Ude Ndagbite, which the claimants inherited from Ironu Eboh, according to the custom and tradition of Umueze Alala, Emede, Autonomous Community, Ibeku Umuahia North L.G.A of Abia State, within the jurisdiction of this honourable Court, with an annual value of N100.00 (One Hundred Naira) each.

(d) Perpetual injunction restraining the Defendant, himself, his heirs, agents assigns or privies from further acts of trespass or in any other way interfering with the rights of the Claimants over the said land. ?page 6 of the Records of Appeal).

The Defendant (now Appellant) filed a counter-claim, seeking:

(a) A declaration that the Defendant counter-claimant, being the only surviving grandson of his grandfather called Eboh, is by the native law and custom of Umueze Ibeku in the Umuahia North Local Government Area of Abia State, solely entitled to inherit his grandfathers, estate.

(b) A declaration that, the Defendant being the only surviving ancestral relation of the late Ironu Eboh (the father of 5th Claimant Counter Defendant) through Ebolfs line, is by the native law and custom of Umueze Ibeku in the Umuahia North Local Government Area of Abia State solely entitled to inherit the estate of the said Eboh, who died intestate and without any surviving male children.

(c) A declaration that the Defendant? is by reasons aforesaid, entitled to the statutory right of occupancy to the following pieces or parcel of land:
(1) Ala Mmiri (One Parcel of land)
(2) Iyi Achi (Four Parcels of land)
(3) Oru Mkpuru (Two Parcels of land)
(4) Ndagbite (Two Parcels of land)
(5) Uhu Ochie (Three Parcels of land)
(6) Isi Ikwu (One parcel of land)
(7) Nchii
(8) Oru Main Road ? (Two parcels of land) all of which are situate and lying at Umueze Ibeku in Umuahia North L.G.A. of Abia State, whether seen and treated as Eboh?s parcels of land or Ironu?s parcel of land.

(d) N20,000,000.00 (Twenty Million Naira) being general damages for trespass in that the claimants counter-defendants have at all materials of land without the consent and authority of the Defendant-Counter claimant.

(e) An order of Court directing the Claimants Counter-Defendants to release and/or surrender the parcels of land in sub-paragraph (c) above to the Defendant Counter Claimant as his bone (sic) fide entitlement.

(f) An order of perpetual injunction restraining the Claimants Counter defendants, their agents, workmen, or privies from further entry into the parcels of land mentioned in sub-paragraph (c) above, and from further interfering with the right of the Defendant-Counter Claimant to the aforesaid parcels of land and/or in any other way disturbing the Defendant Counter-Claimant over the parcels of land (See pages 68 and 69 of the Records).

After hearing the case and considering the addresses of Counsel and evidence adduced before it, the trial Court held for the claimants (Respondents), thus:

Civil cases are decided on a preponderance of evidence or balance of probabilities. I have weighed the evidence adduced by both sides on the imaginary scale. I find the case of the Claimants more credible, cogent and, stronger. The claimants? case outweighs that of the defendant, on the imaginary scale by the quality of evidence adduced. The standard of civil cases is not proof beyond reasonable doubt.

On the claim of trespass by claimants, it is noted that trespass is an injury to the right of possession where both parties claim title to a piece of land, the law, ascribes possession to the party, with title or better title and in this case, the claimants, who have on preponderance of evidence, established title. See Solomon V. Mogaji (1982) 13 NSCC 400, at 417. Defendant admitted entering and cultivating some portions of the land in dispute. The claimants are therefore entitled to general damages for trespass, which I assess at N20,000.00.

On the claim for injunction, the law is that perpetual injunction cannot be granted unless it is asked for by someone who has established an absolute right to the property or the land in dispute like the claimants in this case? Claimants are therefore entitled to an order of perpetual injunction. In the high of the foregoing I enter judgment for the claimants as follows:

(1) The claimants are entitled to succeed to and inherit the estate of Ironu Eboh which include the following pieces or portions of land, to wit:

Ala Mmiri (1), Iyi Achi (1), Ihu Oku (1), Oru Mkpuru (2), Ukwu Udara (3), Ndagbite (2), Isi Ikwu (1), Uhu Ochie (2), and Ude Ndagbite, all situate at Umueze Ibeku in Umuahia North L.G.A of Abia State, and more particularly described in paragraph 4 (r)1-9 of the additional statement on Oath of the additional written statement on Oath of 5th Claimant (Ebere Ironu) of 23/5/2018.

2) Relief 2 is refused to the extent that it has not been shown that the estate of Ironu Eboh had been partitioned among all his descendants.

3) I award the sum of N20,000.00 as general damages for trespass

4) The defendants, his heirs, agents, assigns or privies are hereby perpetually restrained from further trespassing into the said pieces of portion of land aforesaid.

5) I award costs of (N10,000.00) Ten Thousand Naira against the Defendant. The Counter-claim is hereby dismissed.? See pages 300 to 301 of the Records of Appeal.

That is the decision Appellant appealed against, as per the Notice of Appeal on pages 302 to 306 of the Records, filed on 27/11/2014. Appellant file his brief of argument on 2/6/17 which, was deemed duly filed on 25/9/17, the date the Records of Appeal was also deemed duly transmitted to this Court. He donated four (4) issues for the determination of the Appeal, as follows:

1)Whether the claimants properly pleaded and proved by credible evidence the native law and custom of Umueze Alala Emede Autonomous Community Ibeku Umuahia North Local Government Area of Abia State which entitled them to succeed and inherit the estate of Ironu Eboh as found by the Court below (Ground 1).

2) Whether having regard to the fact that the sharing of the intestate estate of Eboh, the progenitor of the parties, is regulated by custom of Umueze Alala Community, the fact that the respondents did not plead and prove by evidence the said custom as well as the fact that the native arbitration upon which the trial high Court placed a lopsided reliance was only on a specific disputed parcel of land called NDE NDAGBITE and that the said native arbitration was not voluntarily submitted to by the appellant, the trial Court was right in holding that the interstate estate of Eboh had been shared based on the content of Exhibits B and C (Ground 2).

3) Whether the Court below was not in error, when inspite of the fundamental material contradictions and inconsistencies in the evidence of the respondents, it held that the Claimants proved their assertion that Ironu Eboh ?called on the 5th claimant and proclaimed before them his decision that the 5th Claimant should not marry but to remain in the family and bear children in the name of the said Ironu Eboh who shall inherit his estate according to the prevailing custom and tradition of his people (Ground 3).

4) Whether the holding of the trial Judge to the effect that the defendant did not prove his Counter claim is sustainable, where as in this case:

(a) He (the Trial Judge) misevaluated the defendant/counter claimant?s evidence in support of his Counter-claim and in support of his Counter-claim and came to the conclusion (through, erroneous) that the estate of late Eboh has been shared; and

(b) He also failed to evaluate at all the evidence of the key, witnesses to the defendants counter-claimant, which led to a miscarriage of Justice. (Ground 4).

The Respondents filed their brief on 24/10/2017 and distilled two issues for the determination of the Appeal, namely:

1) Whether the learned trial Judge, considering the evidence before him, was right to hold that the estate of late Eboh was shared by the children at his death – Ground 2.

2) Whether from the totality of the evidence adduced by the Appellant at the Court below, the Appellant was entitled to the grant of the reliefs in his counter claim – Ground 4.

The Respondents raised objection against grounds 1 and 3 of the Appeal, challenging their competence, namely whether, in ground one, the trial Court in its judgment relied on the native law and custom of Umueze Emede Ibeku as it relates the father of 5th Claimant, authorizing her to remain in her father’s house and bear children; and ground 3, Whether the trial Court in holding that the Respondents were entitled to inherit the estate of Ironu Eboh, relied on the declaration of the 5th Respondent’s father, that the 5th Respondent should not marry but remain in his house to procreate in his name. The Respondent had filed a motion on 24/10/17 to that effect, to challenge the said grounds 1 and 3 of the appeal, but at the hearing of the appeal, on 12/2/19, the Respondents? Counsel applied to withdraw the said motion.

The said motion is hereby struck out together with the arguments thereof in the briefs Respondents’ brief and the Reply Brief.

Appellant filed a Reply brief on 23/1/18 which was deemed duly filed on 14/5/18.

Arguing the Appeal, Dr. H.U. Akotaobi, who settled the brief for Appellant, on issue 1, said that the foundation on which the Respondents anchored their rights to inherit the intestate estate of Ironu Eboh was that Ironu Eboh, during his life time had ordered one his daughters, the 5th Respondent, to stay in his house, unmarried, and bear children in his name since he, Ironu Eboh, had no male children; that that was the prevailing custom and tradition of Umueze Alala Emede Autonomous Community, Ibeku in Umuahia North L.G.A of Abia State. Counsel said the trial Court upheld the alleged Custom, and he referred us to page 295 of the Records of Appeal, he added that the trial Court, suo motu, imported into the said judgment its own view, when it said:

Without mincing words, I have no hesitation in stating that it is an age old accepted Igbo custom that to perpetuate a man’s lineage, his unmarried daughter can give birth in his house and by that arrangement that child is as much the man’s child as any child born by his wife.

Counsel disagreed with that holding and said that there is no universal applicability, acceptability or, indeed, prevalence in Igbo land of that sort of custom propounded by both the Claimants and the trial Judge. He said that the Court has a duty, to limit itself to the case presented before it by the parties, and so has not power to make out a case, different from the one presented to it by the parties. He relied on Evbaruese Vs Uwagboe (2015) All FLWLR (Pt. 767) 741 at 765, saying it is now well settled, that every decision taken by a Court, must be based on the evidence before it, and any decision taken contrary to the evidence adduced, is perverse and cannot stand. Counsel added that a Court is not allowed to set up for the parties a case different from the one set up by the parties themselves in their pleadings and evidence. Ogundele Vs Agiri (2009)18 NWLR (Pt.1173) 219; Arowolo Vs Akaiyejo (2012)4 NWLR (Pt.1290) 286 at 306-307.

Counsel admitted that the Respondents pleaded the alleged custom of Umueze Alata Emede Autonomous Community, whereby 5th Respondent could stay in her father’s house and procreate, out of wedlock, and the children procreated would inherit the intestate estate of the late estate of 5th Respondent’s father. But he argued that by sections 16 and 18 of the Evidence Act 2011, in deciding such questions of native law and custom, the claimants must plead and call witnesses of persons (like Chief(s)) having special knowledge of the said custom and tradition, to testify, or produce books/manuscripts which recognize such custom/practice by the natives. He relied onNwogu Vs Njoku (1990)3 NWLR (Pt.140)41 NSCQLR (Pt.1) 458 at 474.

Counsel said the CW1 and CW2,called by the Respondents on the issue, were not Chiefs or persons with special knowledge of such custom/tradition, that, curiously, the said two, witnesses of the Respondent, in Exhibit B did not say that they were present at the time Ironu Eboh gave the daughter that directive, and did not state who was present at the alleged time of the instruction to the 5th Respondent. Counsel also noted that the panel of arbitrators did not make any pronouncement in Exhibits B and C on the said claim of the 5th Respondent by her father. He added that the land that was in dispute before the panel of arbitrators was NDE NDAGBITE a raffia palm, plantation and not all the parcels of land claimed by the Respondents.Counsel relied on the case of Usiobaifo Vs Usiobaifo (2005)3 NWLR (Pt.913) 665 at 684, to say that ?Customary Law is a fact that must be strictly proved, unless judicial notice is taken of its existence, and the burden of proof is on the party asserting its existence? Dung Jatau Vs Pan Dung (1993)3 NWLR (Pt.283) 558; Chiga Vs Umaru (1986)3 NWLR (Pt.28) 460 at 466.

Thus, Counsel said the alleged custom was never established and that the Respondents’ failed to prove it.

On issue 2, Counsel said that the Respondents had pleaded that when Eboh died his four children shared his estate and Ironu (the father of 5th Respondent) got his own portions; that they led evidence to that effect as per CW1 and CW2. But that Appellant had denied that position of the Respondents, as per his pleadings and evidence stating that Eboh’s children did not share their father’s estate, rather each surviving head of Eboh’s family held and managed the estate of their father in trust for the family, until the death of the said head. Counsel said that the Respondents did not state how Eboh’s estate was shared by his four children; that the burden was on them to show how the partitioning or sharing was done. He relied on Ajide Vs Kelani (1985)3 NWLR (Pt.12) 248; Yusuf Vs Adegoke (2007) NWLR (Pt.1045) 332; Aiyetoro Comm. Trading Co. Ltd Vs NACB Ltd (2003)12 NWLR (Pt.834) 346, and Section 136 of the Evidence Act, 2011.

Counsel said the trial Court was wrong to hold that the sharing of Eboh’s estate by his children had been established, relying on the arbitration report in Exhibits B & C. Counsel referred us to the Exhibits B & C or pages 308 to 320 and 321 and 334 of the Records, and stressed on the verdict of the panel, which started with:

It is been actually proved that Eboh’s children shared their father’s properties when all were alive. But Mr. Sunday, Onyiwara who ought to be the head of that Eboh’s family missed/bowed out because he does not know his right in that family, if not he could have partake (sic) in the sharing of the Ude Ndagbite that is the bone of contention
See Page 319 of the Records. (Exhibits B & C refer to the same arbitration report as tendered, separately, by each side to the dispute).

Counsel said that the native arbitration upon which the trial Court so strongly relied upon, pronounced on the two and distinct issues in the judgment; one being that the estate of Eboh had been shared by his four sons; he said that that was ultravires the scope of the subject matter of the dispute before the arbitration panel. And the 2nd issue was that Ude Ndigbite land, actually, in the arbitration, which was pledged away to raise funds for the appeasement of the gods of the land, was redeemed by Ironu (the father of 5th Respondent), and that Appellant should pay the sum of N1500.00 to the 5th Claimant for the redemption of the land (Nde Ndagbite) and N5,000.00 compensation before 5th Respondent would surrender it to Appellant.

Counsel lamented that the trial Court did not make pronouncement on the entire verdict of the native arbitration but rather picked and chose the aspect of the verdict to suit its opinion and cast the rest away; that that was an error, as the Court has the duty of evaluating all the evidence presented to it before making pronouncement on same, one way or the other. He relied on the case of Mkpa Vs Mkpa (2010) 14 NWLR (Pt. 1214) and Nwagwu Vs Aguma (2015) All FWLR (Pt. 805) 787 on when arbitration report/decision can be founded upon.

On issue 3, Counsel said that, of the 8 persons said to have been present when Ironu Eboh gave instruction about the 5th Respondent staying to procreate in his home, 2 of them were alive ? Moses Madumere and Sunday Onyiwara. And of the two, only one, Sunday Onyiwara, was called as a witness ? CW1; Counsel said that though the CW1 confirmed the claim of the 5th Respondent that he heard this from Ironu, directly; he also stated that the said Ironu had no surviving male child. But that under cross examination, that CW1 said he was told about this directive by Ironu, that was not there to witnesses it. Counsel said that was a maternal contradiction, which cast serious doubt on the entire averments of CW1, when he alleged that Ironu said those things (about 5th Respondent) in his presence and before other persons.

Appellant also alleged that the reason the 5th Respondent gave as to why the father instructed her to stay home and procreate in his name was conflicting; he said that in Exhibit B, 5th Respondent testified as CW3 to say that her father foresaw the covetous and predatory nature of the Appellant, and was uncomfortable that he (father) had nobody to succeed him, as the only son he had died three years after birth, the father instructed her to stay home, refuse marriage and procreate for him. But that in the pleadings in this case, the claimants said the father gave the instruction, because the two wives he had no son!

Again, Appellant said the Respondents did not prove the alleged instruction by Ironu to 5th Respondent not to marry, but stay to procreate, for Ironu; nor did they prove the existence of such custom. He said that the Court should not have relied on such contradictory and inconsistent evidence to grant the prayers of the Respondent. He relied on Okoko Vs Dakolo (2006) All FWLR (Pt. 336) 201; (2006) 7 SCNJ 284; Usiobaifo Vs Usiobaifo (2005) All FWLR (Pt. 250) 131; Onya Vs Ogbuji (2011) All FWLR (Pt. 556) 493; Orekpan Vs Amadi (1993)11 SCNJ 68. He added that such instruction if made by Ironu, was immoral and abominable, to say that the daughter should not marry,but live in the father’s house to procreate for the father!

On issue 4, Counsel again stated that the trial Court was wrong to hold that the estate of Eboh had been shared, relying on Exhibits B and C; that the trial Court did not evaluate, consider, or let alone, assign any probative value to the evidence of DW1, who was over 80 years old and DW3, who testified for Appellant, Counsel stated what a Court should take into consideration when evaluating evidence and relied on the case ofMogaji Vs Odofin (1978) 4 SC 91 Akad Industries Ltd Vs Olubode (2004)4 NWLR (Pt.862)1; MV Cecilie Maersk Vs Winline (Nig) Ltd (2015) All FWLR (Pt.808) 672 at 675.

He said that inspite of the inconsistencies and contradictions in the evidence of the claimants, the trial Court gave judgment to Respondents, and urged us to re-evaluate the evidence and come to the correct\proper conclusion.

He said that the contradictory evidence of the claimants should have been enough for the trial Court to view the claim with suspicion and disbelief as regards the issue of sharing of the estate of Eboh and the alleged declaration of Ironu, that the daughter (5th Respondent) should not marry but remain in his house to procreate children to inherit his estate; that such directive was contrary to the norms, native law and custom and tradition of Umueze Alala Emede Autonomous Community, Ibeku Umuahia North L.G.A of Abia State. He relied on Akanmu Vs Adigun (1993) 7 NWLR (Pt.304) 218; Ariori & Ors Vs Muraimo Elemo & Ors (1983)1 SC 13; and the case ofAdebayo Vs Adusei (2004)4 NWLR (Pt.862)44; Mogaji Vs Cadbury (Nig) Ltd (1985)2 NWLR (Pt.7) 393, on the fact that the totality of evidence must be evaluated and the Court cannot pick and choose the evidence to evaluate; that failure to do so affects the rights of fair hearing of the parties Military, Gov. of Lagos State Vs Adeyiga (2012) All FWLR (Pt. 616) 396 at 427 Ndukauba Vs Kolomo & Anor (2005) 124 LRCN 479 at 493.

Counsel urged us to resolve the issues for Appellant and to allow the appeal.

Arguing the Respondents’ brief, S.U. Apu Es., on Issue 1, whether the trial Court was right to hold that the estate of Eboh was shared by his children at his death, answered in the affirmative. He said that the Respondents had given account of how the properties of Eboh was shared among his children in their pleadings (pages 3 ? 6 of the Records of Appeal) and their reply and defence to Counter-claim (pages 125 – 131 of the Records) wherein Respondents gave details of each and every portion of the lands Ironu got as his portion upon the sharing of the estate of Eboh. He said that the Respondents? witnesses gave evidence in line with the said pleadings. He particularly relied on the evidence of CW1, Sunday Onyiwara, said to be the oldest member of Eboh?s family, to which both Appellant and Respondents belonged. He argued that Appellant had even admitted that the Respondents were in possession of the said lands in dispute; he said that Appellant was driven by greed to try to dispossess them (Respondents) of the lands. Counsel relied on the case of Nwankwo Vs Chukwueke (1995) 2 NWLR (Pt. 195) to say that, where there is evidence of partition of family land, that brings an end to communal ownership of such land.

He submitted that the trial Court was right to hold that Eboh’s estate had been shared; that, that decision was reinforced by Appellant’s pleadings (paragraph 8(a) to (i) on (pages 58 &59 of the Records), read jointly with Respondents paragraph 4(r) (1) – (8) of their Reply and defence to Counter claim (pages 129 – 130 of the Records). He relied on the Exhibits B and C, arbitration reports and on the case of Omolola Abike Vs Ololonpe Adedokun (1986) 3 NWLR (Pt.30) 549; Iwuno Vs Dieli (1990) 5 NWLR (Pt.149) 126. Counsel noted that Exhibit C (a replica of Exhibit B) was tendered by Appellant at the trial, and it, clearly, stated that Eboh’s estate had been shared by his 4 Sons! He submitted that the decision of the native arbitration (Exhibits B & C) was binding on Appellant; that Appellant did not appeal against the decision of the trial Court on the decision of the native Tribunal being binding on the Appellant. See Uwazuruike Vs Nwachukwu (2012) 52 NSCQR (Pt.2) pages 47 at 489. He added that Appellant cannot resile from the decision of the Native arbitration, which he voluntarily participated and accepted its decision. He relied on the case of Awonusi Vs Awonusi (2007) ALL FWLR (Pt. 391) 1642 at 1657.

Counsel added that Appellant was the one who alleged that Respondents failed to prove that the sharing of Eboh’s estate complied with the custom of their people, and so the burden to establish the customs relating to the sharing was on the Appellant, who raised the issue. He relied on Onyenge Vs Ebere (2004) 18 NSCQR 789 SC (Pt. 2) 789 at 805.

On Issue 2, whether from the totality of the evidence adduced by Appellant at the Court below, he was entitled to judgment in the Counter-claim, Counsel answered in the negative. He said that the trial Court, having found out as a fact that the estate of Eboh had been shared and that the Respondents were entitled to inherit the estate of Ironu Eboh (father of 5th Respondent and grandfather of 1st to 4th Respondents), it was obvious that the foundation of Appellant?s claim had collapsed he said; that the trial Court had based its decision on the decision of the arbitration (Exhibits B and C) when it held that ?the portion of land which the claimants claimed (described in paragraph 4 (r) 1 9 of the additional statement on oath of CW3 Ebere Ironu, the 5th Respondent)? was Ironu?s share of the estate of his father, Eboh and that the 1st to 4th Respondents were entitled to inherit the estate of Ironu Eboh, their material grandfather. See pages 294 and 298 of the Records of Appeal.

Counsel observed again that there was no appeal against those findings/holdings of the trial Court, and so the same were binding and conclusive. He relied on APGA Vs Anyanwu (2014) 57 NSCQR (Pt.1) 364 at 398.

Counsel also noted that the trial Court had declared null and void any custom that tended to disinherit the Respondents from the estate of Ironu, their father/grandfather, as Appellant had claimed to be the only surviving grandson of Eboh (his grandfather), and under native law and custom, entitled to claim or recover the estate of Ironu Eboh, who died without a surviving male child. He relied on the case of Ukeje Vs Ukeje (2014) 58 NSCQR 531, to the effect that any native law and custom entitling Appellant to solely inherit the estate of Eboh to the exclusion of 5th Respondent, because of her sex (female) or any other reason, was repugnant to natural justice equity and good conscience, and so contrary to Section 42 of the 1999 Constitution of Federal Republic of Nigeria.

Counsel urged us to resolve the Issues against Appellant and to dismiss the appeal. The Appellant?s Reply Brief appear to be a rehash of the arguments in the main brief, apart from reacting to the preliminary objection, which has been withdrawn by the Respondent.

RESOLUTION OF ISSUES

I think the two Issues distilled by the Respondents are more apt for the determination of this Appeal. Though the Respondents predicated their issues 1 and 2 on grounds 2 and 4 of the appeal, respectively, I think the said issues appropriately capture the whole essence of and complaints in the appeal, especially as the issue of 5th Respondent being instructed by her father (Ironu) not to marry, but stay to procreate off-spring to inherit him (Ironu), did not appear to be of any consequence in the judgment or form the basis of the judgment of the trial Court. This is because, though the trial Court acknowledged the existence of such custom, and said, that is an age old accepted Igbo custom that to perpetuate a man’s lineage, his unmarried daughter can give birth in his home and by that arrangement that child is as much the man’s child as any child born by his wife.”

The trial Court also noted:

The custom referred to by the claimants exist in the parties community. However, that custom cannot help the claimants in this case in view of the decision in the case of Muojekwe Vs Ejikeme (2000) 5 NWLR (Pt. 493), wherein the Court of Appeal in considering the application of Nrachi custom which is similar to this custom the claimants have alluded to, stated.

I strongly feel that Nrachi custom is no longer worthy of application with modern trends. In the main, it is a farce, a window dressing designed to cheat the women folk. I have no hesitation in declaring that that Nrachi custom is against the dictates of equity. It is no doubt repugnant and contrary to natural justice, equity and good conscience. It is not worthy of application and I declare it as being unenforceable in the judicial realm and no Court of record should countenance or take judicial notice of it. In the result, a female child does not need the performance of Nrachi ceremony on her to be entitled to inherit her deceased father’s estate.

I place reliance on the aforesaid decision, to hold that the custom whereby a father keeps an unmarried daughter at home for the purposes of procreation in order to perpetuate his lineage is repugnant, and contrary to natural justice, equity and good conscience. I will discountenance it in arriving at a decision in this case. See pages 295 – 296 of the Records of Appeal.

That was well said by the learned trial Judge, and in my opinion, that settles all the allegations that the alleged custom applied in this case. I also think that decision should curb or cure the desperation of parents seeking for male children in African culture. Such desperation often results in many terrible/harmful practices and recourse or resort of the couples or one of them to get or procure a son at all costs, and at the expense of the girl child, and/or ill-treatment of wives/widows, not blessed with a male child.

There are many decided authorities of this Court and the apex Court banishing discrimination against female children and upholding their right to share in the estates of their parents. See the case of Ukeje Vs Ukeje (2014) 58 NSCQR 531; (2014) LPELR 22724 (SC); Igbozuruike Vs Onuador (2015) LPELR ? 25530 CA; Duru Vs Duru (2016) LPELR 40444 CA; See also Section 42 of the 1999 Constitution, as amended.

Thus, parent(s) without a male child, need not resort to the ridiculous extreme to deny his daughter right to marry, to confine her to immorality and amorous relationship with strange men, under her father’s roof, to satisfy her parent(s) desperation for a male child to carry on his name, or perpetuate his lineage and inherit him.

Children are gifts from God, who creates them, males and females gives and same as He wills, and every child should be received with utmost thanks, appreciated and nurtured to one?s aspiration and ability, whether male or female, knowing that the child is entitled to succeed him/her (Parent), whatever the child turns out to be.

One who is so obsessed about perpetuating his name on the earth should, in my opinion, rather work hard to leave worthy imprints on the sands of time by leading a good life of service to God and humanity; go into discovery, patenting, authorship of book(s), etc., and establishing good will. He does not necessarily require harvest of children (who may turn out to be vagabonds).

In fact, great men/women in history are not perpetuated or remembered for the children they had, but by who they were and what they did, while alive.

I shall consider the said two issues for determination, together. In this case at hand, there is no disputing the fact that the 5th Respondent was one of the daughters of Ironu Eboh, and the 1st to 4th Respondents, her sons (and grandchildren of Ironu Eboh) who were born in his (Ironu?s) house, raised up and adopted by him (Ironu). Paragraphs 7 and 8 of the Statement on Oath by CW3 (5th Respondent) state:

(7) The 5th Claimant, regarding the mandate and wish of her father started bearing children in the name of the father both male and female among who are the 1st, 2nd and 3rd Claimants during the life time of her father without any objection or protest as the children have their surname as Ironu.

(8) While the father of the 5th Claimant was alive, the 5th claimant started enjoying her status as the beneficiary of the estate of her father, Ironu, without any let, interference or hindrance from any person including the defendant or any member of Eboh?s family.? (See page 13 of the Records of Appeal).

The above evidence was corroborated by the CW1, Sunday Onyiwara, 80 years old cousin of 5th Respondent and Appellant. See page 8 of the Records of Appeal. And by the findings of the trial Court on page 288 of the Records; he said:

I equally find it undisputed that the 5th Claimant is unmarried, begat the 1st to 4th Claimants out of wedlock and lives with them in her father’s house at Umueze, Alala, Emede Autonomous Community Ibeku in Umuahia North Local Government Area, Abia State. Both parties, hail from the aforesaid community. Both parties equally agreed that the parcels of land in dispute are the ancestral land of their grandfather Eboh

The Appellant’s Case was that he was the sole surviving grandson of the said grandfather, Eboh; that 1st to 4th Claimants being the sons of 5th Claimant, female child of Ironu, were illegitimate children of 5th Claimant and were, by native law and custom of Umueze Ibeku, incapable of inheriting Ironu’s (his uncle) lands; that 5th Claimant could only be accommodated with her children by him. (Appellant). See page 285 of the Records (paragraphs 12 ? 13 of his Statement on Oath).

I have already upheld the findings and holding of the Learned Trial Judge, that Appellant could not and cannot stop the Respondents, including the 1st 4th Respondents, from inheriting their father/grandfather (Ironu’s) estate, including his (Ironu’s) share in Eboh’s estate, as there were credible evidence that Eboh’s properties (estate) had been shared among his (Eboh’s) 4 Sons, including Ironu and the father of the Appellant.

In the recent judgment of this Court Aduba & Ors Vs Aduba (2018) LPELR CA/OW/90/2012, delivered on 12/10/18, it was held:

Appellants had always known that the Respondent was part of their family and had always accepted and condoned that fact, while their father and step mother were alive and even thereafter. Appellant had relied on their customs, to say that only biological sons of a family can inherit their father’s landed property. Of course, such old and oppressive laws in Igbo land have since been reviewed by case law, pursuant to Section 42 of the 1999 Constitution, as amended. See Ukeje & Anor. Vs Ukeje (2014) LPELR 2272 SC. See also Igbozuruike & Ors Vs Onuador (2015) LPELR ? 23330 CA, where it was held that the circumstances of birth of an individual is no ground to discriminate against him in sharing or succeeding to property of a grandfather or mother.

By Section 42(1) and (2) of the 1999 Constitution of Nigeria, as amended:

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 in force in Nigeria or any executive or administrative action of the government, to disabilities or restriction to which citizen of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinion are not made subject, or

(b) Be accorded either expressly by, or in practical application of any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizen of Nigeria of other communities, ethnic groups, places of origin, sex, religion or political opinions.

(2) No citizen of Nigeria shall be subjected to any disability or deprivation by reason of the circumstances of his birth.

The above constitutioned provisions, effectively removes and penalizes any reference to a citizen of Nigeria as ‘illegitimate’, or ‘bastard’ as every citizen is legitimate, treasured and entitled to equal rights available all citizens. See also Duru Vs Duru & Ors (2016) LPELR ? 40444 CA; Anozia Vs Nnani & Anor (2015) 8 NWLR (Pt.1461) 241.
In that case of Duru Vs Duru & Ors (supra), it was held:

Thus, it is not only Traditional/Customary Law of the Igbos of Mbaitoli L.G.A that acknowledges this practice of accepting a child of unmarried daughter as one of the members of the family of the father of the mother. This practice appears to be accepted all over the country and it accords with our national Constitution, which abhors discrimination of a child or citizen of Nigeria because of the circumstances of his birth.

I have already held that the trial Court was right, when it held that the estate of Eboh had been shared among his 4 Sons at the death of Eboh and so the property or estate of Ironu Eboh remained for the daughters of Ironu, represented by 5th Respondent and her children, to inherit. The fact of the sharing or partitioning of Eboh’s estate was admitted by both parties, though Appellant later tried to deny. Both the pleading of the parties, particularly, paragraph 8(a) of the Appellant’s Statement of defence and Counter-Claim, and the Respondents’ paragraph 4(r) (1) – (9) of the Reply to Counter-claim, clearly acknowledged the specific portion of lands which each side held as their shares of the Eboh’s estate, shared by Eboh’s 4 Sons. Appellant even acknowledged the 5th Defendant as being in lawful possession of those portions of land, which the 5th Respondent also took time to plead and tabulate Exhibits B and C tendered by the parties, respectively, further asserted the fact that Eboh’s estate had been shared to the 4 Sons. Paragraph one of the Verdict of the Native Arbitration stated it all:

It has been actually proved that Eboh’s children shared their father’s properties when all were alife. But Mr. Sunday Oyewara (sic) who ought to be head of that Eboh family missed/bowed out because he does not know his right in that family, if not, he could have partake (sic) in the sharing of that Ude Ndagbite that is the bone of contention. It was actually found out also that late Mr. Ironu Eboh redeemed that place out with his money. If not that tradition forbids Nwada from anything Ude-Nkwo, if not she (Ebere) has right to supervise that Ude like others. On that Okebaram should give her (Ebere) one thousand five hundred (N1,500.00) Naira only as that of redeeming that place and another sum of five thousand Naira (N5,000.00) only, as compensation, all totaling Six Thousand Five Hundred Naira (N6,500.00) Okebaram should take over ownership of that Ude whenever he pays this money to M/S Ebere Ironu, through the Chairman of Umueze Community, being Mr. Azuonye Ahamefule (underlining mine). See page 293 of the Records of Appeal.

Of course, the arbitration decision had to do more with the Ude Ndagbite land, one of Eboh?s lands, shared to the father of the Appellant, but was under pledge. It was Ironu Eboh (father of 5th Respondent) that redeemed the land from the pledgee and had to enjoy the redeemed land until Appellant could refund the redemption fee. Thus, at the arbitration, the panel affirmed the right of the 5th Respondent to remain in possession of the Ude Ndagbite land and gave the Appellant (Okebaram) opportunity to redeem the land i.e, refund the pledge fee (N1,500.00) together with what was adjudged as damages (N5,000.00) to the 5th Respondent (Ebere) to regain ownership of the land – Ude – Ndagbite.

The trial Court had stated:

This decision (of the Native Arbitration) in my opinion puts to rest the question of whether or not the estate of Eboh was shared by his sons. The said estate was shared. It is also interesting to note that the Claimants listed the names of the land to which their claims relate, the number of portions comprised in each land as well as the boundary neighbors. See paragraph 4(r) 1 – 9 of the Claimants Reply and Defence to the Counter claim and 4(r) 1 – 9 of the Additional Statement on Oath of Ebere Ironu? A careful perusal of paragraph 8(a) of the Statement of defence and written Statement on Oath of the defendant as to the portions of land in possession seem to support the case of the Claimants as to the portions of land in possession of the respective parties to the case. See page 293 of the Records of Appeal.

Appellant had voluntarily submitted to the said Arbitration and accepted the decision. He cannot now resile or be allowed to resile from it, especially as regards the fact that Eboh’s estate had been shared among his 4 Sons. See the following cases on the binding nature of Native arbitration and when applicable: Ojibah Vs Ojibah (1991) LPELR 2374 (SC); Onyenge & Ors Vs Ebere (2004) LPELR 2741 SC; Onyenawuli Vs Onyenawuli & Anor (2017) LPELR 42661 (CA); Agu Vs Ikewibe (1991) 3 NWLR (Pt.180) 385 (SC); Oparaji Vs Ohanu (1999) 9 NWLR (Pt.618) 290.

To enforce a decision of arbitration as binding on the parties, the following must be established:

(3) The said arbitration was in accordance with the custom of the parties of their trade or business;
(4) The arbitrators reached a decision and published their award and
(5) It was accepted at the time it was made. See Onyenawuli Vs Onyenawuli (supra); Okwaranyia Vs Eke (1996) 3 NWLR (Pt. 436) 335; Ohiaeri Vs Akabeze (1992) NWLR (Pt. 221) 1; Iwuala Vs Chima (2016) LPELR ? 40970 CA; Duru & Ors Vs Duru & Ors (2017) LPELR 42490 CA.

Appellant cannot therefore wish away the clear statement contained in Exhibits B and C, that Eboh?s estate had been shared; and the decision of the Court that Ironu Eboh was entitled to his share of the said estate, which the 5th Respondent and her children inherited, on the death of Ironu. I cannot therefore see any merit in this appeal and so resolve the two issues against the Appellant, whom I think was propelled by greed, goaded by an out-dated custom, in seeking to dispossess the Respondents? of their entitlement to the estate of their father/grandfather ? Ironu Eboh.

I dismiss the Appeal with cost of N50,000.00 (Fifty Thousand Naira) only against Appellant, payable to the Respondents.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: My learned brother, Hon. Justice Ita George Mbaba, JCA has obliged me, with a draft of his lead judgment which has just been delivered. Having adequately treated the issues the same, I do not intend to add anything thereto. I agree entirely with the reasoning and conclusion reached therein. I also dismiss the appeal.

I abide by the order made in the said lead judgment with regard to co

Appearances:

DR. H. U. AKOTAOBI WITH HIM, C. E. ONYEKWERE (MISS)
For Appellant(s)

S. U. APU, ESQFor Respondent(s)