OKEKE v. OKEKE (2020)

OKEKE v. OKEKE

(2020)LCN/15356(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, August 07, 2020

CA/OW/50/2010

RATIO

WHETHER AN INTERVIVOS GIFT CONNOTES A PERMANENT AND FINAL TRANSFER OF INTEREST TO THE BENEFICIARY

A gift made, intervivos, usually connotes a permanent and final transfer of interest to the beneficiary, and the offspring of the grantor, cannot turn round to revoke such gift or grant.
See Jovinco Nig. Ltd. & Anor. Vs. Ibeozimako (2014) LPELR -23599 CA, where this Court held:
“An inter vivos gift is made when the donor is living and provides that the gift takes effect while the donor is living, as contrasted with testamentary gift, which is to take effect on the death of the donor (testator)… An intervivos gift, by its very nature, is made by a living person to another and takes effect immediately, it is made and once it is made by the donor, the subject of the gift ceases to belong to the donor.
It cannot therefore form part of the estate of the donor, when he dies”
See Anyaegbunam vs. Osaka (2000) 5 NWLR (Pt. 657) 386 (SC); Ekpa & Ors. Vs. Utong & Ors. (1991) LPELR – 1084 (SC); Amaefula Vs. Mbaegbu & Anor. (2018) LPELR – 46627 CA; Isiohia & Ors. Vs. Elechi (2018) LPELR – 44988 (CA); Ashilonu & Anor. Vs. Ohale & Anor. (2018) LPELR – 44267) CA). PER ITA GEORGE MBABA, J.C.A.

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

JOHN KA-ANAYO OKEKE APPELANT(S)

And

NATHANIEL IWUJI OKEKE RESPONDENT(S)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This Appeal emanated from the decision of Imo State High Court in Suit No. HME/36/2007, delivered by Hon. Justice F.I. Duruoha-Igwe, on 16th July, 2009, wherein the learned trial Judge dismissed all the claims of the Plaintiff, except to declare that the Plaintiff was the head of his family, being the only surviving son of late Alexander Echendu Okeke.

At the Court below, the Plaintiff (now Appellant) had sought the following reliefs:
(1) A declaration… that the Plaintiff as the only surviving son of late Alexander Echendu Okeke, is the head of Alexander Echandu Okeke’s family.
(2) A declaration… that the Plaintiff as the only surviving son of late Alexander Echendu Okeke’s family, is absolutely and exclusively entitled to the estate of late Alexander Echendu Okeke.
(3) An Order of perpetual injunction, restraining the defendant, his agents, workmen, privies and successors in title, from entry into any part of the estate of Late Alexander Echendu Okeke and/or interfering with the Plaintiff in whatever manner in his enjoyment of the estate aforesaid.

(4) Five hundred thousand naira (N500,000.00) damages against the defendant for unlawful and unwarranted entry into the estate of late Alexander Echendu Okeke and interference with the Plaintiff in his enjoyment of the estate aforesaid.

Pleadings were exchanged and at the hearing, the Plaintiff called 3 witnesses and the Defendant also called 3 witnesses. At the end of the trial, and after considering the evidence and addresses of Counsel, the trial Court held:
“The summary of the Claimant’s Claim is that the mother of the defendant, Late Ukwuoma, and his Late father, Alexander Echendu Okeke were begotten by Ichie Ovulorie Okeke. That the defendant’s was married to one Dimgbu Emelute of Umezeokwa in Umuihi autonomous community in Ihitte/Uboma Local Government Area of Imo State. That the said Dimgbu died while the defendant was young and Ukwuoma came back to her maiden home with the defendant. He further alleged that the people of Umuezeokwa had come to fetch the defendant but that the defendant refused to follow them.
The defendant denied the story of the Claimant. The defendant contended that his mother never married Dimgbu Emehute or anybody else. That his mother begat him in her father’s compound, during the life time of late Ichie Ovulorie Okeke. That his mother’s brother Luke, and Alexander, the Claimant’s father, were alive when he was born. That he lived with the father of the Claimant and related well with him. That he performed the “Iwa Akwa” traditional rite reserved for only indigenes of Umunohu Amakohia and also made payment of dues and levies as an indigene. That the Claimant’s father, during his life time, gave to him three parcels of land, outrightly. That he built upon one of those three parcels of land and used the others, with members of his family.” (Pages 102 of the Records of Appeal).

In his findings, the trial Court said:
“…There is evidence before me, that defendant performed the “Iwa Akwa” ceremony, sponsored by Plaintiff’s father. This is so, because of the special status of defendant in Okeke’s family. It shows also acceptance and acknowledgment by Plaintiff’s father of defendant’s status as a member of Okeke’s family. All efforts by Plaintiff to dislodge this evidence that defendant performed the “Iwa Akwa” ceremony as an Okeke, failed. Plaintiff could not also dislodge Defendant’s evidence, that his sisters marriage rites were performed for Umunoha people, who accepted same. Plaintiff and his witnesses also admitted that defendant’s mother was buried in Okeke’s compound. They led no evidence that it is their custom to bury their married daughters in their maternal or home. Plaintiff and his witnesses also admitted the following facts:
(1) That the defendant stayed among the Okeke family in the presence of Ichie Ovulorie Okeke and was given Okeke as his surname
(2) The Claimant’s father took the defendant to Lagos as Moses Iwuji Okeke
(3) There is no evidence or even a suggestion from any of the witnesses that the defendant ever answered ‘Dimgbu’ or that any attempt was made by anybody to stop him from answering ‘Okeke’.
(4) The Defendant was initiated into the “Iwa Akwa” ceremony by the Claimant’s father.
(5) The defendant was registered in Umuonyecha kindred by the Claimant’s father.

(6) The Plaintiff’s father and defendant had cordial relationship.
I believe that it was as a result of the above facts that Plaintiff’s father made gifts of the parcels of land to the defendant, as member of the Okeke family – seeing that defendant cannot exist in the air. As such it does not lie in the mouth of the Plaintiff to say otherwise. If it were not so, Plaintiff’s father would have been the one to initiate this proceedings before his death. I am satisfied that the Plaintiff’s father made outright gifts of these parcels of land to defendant. I believe the evidence of defendant and his witnesses in this regard.” See Pages 114 to 115 of the Records of Appeal.

The trial Court further held:
“It is trite that to maintain an action in trespass, the Plaintiff must prove a present possessory title. See Renner Vs Daboh (1955) 11 WACA. It been settled that a party, out of possession, cannot maintain action in trespass even if he is the real owner. See Olagunju Vs Yahaya (2005) ALL FWLR (Pt.247) 1466. It is true that Plaintiff is claiming ownership, but then the law preponderates in favour of the party in possession, exercising acts of ownership and possession. In this case, the Defendant is the party in possession. In addition, I have also found that the parcels of land belong to him, being outright gifts from Plaintiff’s father. This being the case, I cannot grant the order of injunction and damages sought. He is on the land with the express permission of Plaintiff’s father…” (Page 116 of the Records)

That is the Judgment Appellant appealed against, being dissatisfied, as per the Notice of Appeal on Pages 117 – 124 of the Records of Appeal, disclosing 7 grounds of Appeal. He filed his Amended Brief of Argument on 3/12/2018, which was deemed duly filed on 5/12/2018. In it, Appellant distilled 7 Issues for the determination of the Appeal, as follows:
(1) Whether the trial Court was right when it held that the claimant/appellant failed to prove the identity of his father’s estate, which he claims from the defendant/respondent (Ground 1)
(2) Whether the trial Court was right when it held that at the death of the claimant/appellant’s father, the three parcels of land in dispute were not part of his estate. (Ground 2)

(3) Whether the trial Court was right in holding that the three parcels of land were outright gifts to the defendant/respondent. (Ground 3)
(4) Whether the trial Court was right when it held that:
“Curiously Plaintiff’s Counsel submitted that defendant made a defence that the gift was outright and so has the burden to prove same. He referred me to Section 135(1) and (2) of the Evidence Act. Am afraid that Section 135(1) and (2) supra places the burden of proof on Plaintiff who asserts or is claiming that the gift was not outright. The burden does not shift to the defendant until the Plaintiff successfully discharges the burden on him. (Ground 4)
(5) Whether the trial Court was right when it held that the defendant/respondent was a member of Ovulorie Okeke family and accepted as such by the Claimant/appellant’s late father (Ground 5)
(6) Was the trial Court right when it held that “it is prevalent Ibo custom that a child born by an unmarried daughter belongs to the family of the father of the unmarried daughter”? (Ground 6)
(7) Whether the trial Court was right when it held that the claimant/appellant was not entitled to injunction and damages for trespass against the defendant/respondent. (Ground 7)

The Respondent (who substituted his late father, Moses Iwuji Okeke), filed his brief on 21/2/2019 which was deemed duly done on 11/3/2019. He donated five Issues for the determination of the Appeal, namely:
(1) Whether the appellant was not under a duty to prove that the three parcels of land in dispute were part of the estate of his late father. (Grounds 1 & 2)
(2) Whether the findings of the trial Court that the three parcels of land in dispute were outright gift was wrong in view of the evidence before the Court. (Ground 3)
(3) Whether the burden of proving that the three parcels of land given to the respondent were not outright gift in view of the pleadings and the evidence before the Court was on the appellant or not. (Ground 4)
(4) Whether the trial Court was not right in holding that the defendant belonged to the family of Ichie Ovulorie Okeke family. (Grounds 5 and 6)
(5) Whether the appellant was entitled to his claim for perpetual injunction and damages, having failed to prove that he was entitled to the parcel of land in dispute. (Ground 7)

Counsel for Appellant, Dr. Innocent Okoronye, on Issue 1, said that by his pleading and evidence, the identity of the lands in dispute had been established as part of the estate of his father; that by Section 75 of the Evidence Act, what is admitted need no further proof.

On Issue 2, whether the Court was right to hold that at the death of the Plaintiff’s father, the three parcels of land were not part of his estate – at least they had not reverted to his estate, Counsel answered in the negative. He said that the three parcels of land were given to Respondent on temporary basis, and only a temporary interest was given out while the title to the lands was retained by the father Appellant, and on his death the title passed to Appellant; thus the lands constituted part of the estate of the late father of the Appellant.

On Issue 3, Counsel said the trial Court was wrong to hold that the lands were outright gifts to Respondent by the father of the Appellant; that that finding was not supported by evidence; that the trial Court did not even consider whether any gift of lands were made to the Respondent by the Claimant’s father, but concluded, without evidence, that the gift was absolute not temporary.

Counsel said that PW2 had also testified that the Respondent was shown the parcels of land on temporary basis; but later said the issue of gift, and whether it was absolute or not was not part of the Appellant’s Case! He said that it was the Respondent who raised the issue of gift of the land and the burden of proof was on him. He added that there were material contradictions in the evidence of DW1 to DW3 on the question of gift to the lands. He relied on Jegede Vs Bamidele (2006) ALL FWLR (Pt. 315) 109 on the effect of contradictions.

On Issue 4, Counsel adopted his submissions under the Issue 3. He submitted that the burden of proof of the outright gift of the lands was on the Respondent, but the trial Court misplaced the burden on the Appellant.

On Issue 5, whether the trial Court was right to conclude that Respondent was a member of Ovulorie Okeke family, and accepted as such by Appellant’s father, Counsel answered in the negative. He said that membership of a family is not determined by conjecturing; that a family consists of the man, his wife or wives and children born to him by the wife or wives. He relied on the case of Chinweze Vs Mazi (1989) 1 NWLR (Pt.97) 254. Counsel said that the story of Respondent, how he lived in the family of Ovulorie Okeke and bore the name of Okeke was not enough to make him a member of that family.

On Issue 6, Counsel said that trial Court was not right when he held that “it is a prevalent Ibo custom that a child born by an unmarried daughter belongs to the family of the father of the unmarried daughter.” He said that it is settled that customary law is a question of fact to be pleaded and proved in evidence. He relied on Balogun Vs Labiran (1989) 3 NWLR (Pt.80) 66; Agbai Vs Okogbue (1991) 7 NWLR (Pt.204) 391. Counsel said the said custom, which the Court purportedly took judicial notice of, was never pleaded nor proved by any of the parties in the proceedings.

On Issue 7, Counsel said the trial Court was wrong to hold that Appellant was not entitled to the injunction and damages sought. He however, admitted that the initial entry of the Respondent to the lands was lawful, but that the grant was a temporary one and so when the Appellant, to which the title vested, demanded the return of the lands and the Respondent refused, he (Respondent) became a trespasser on the land, ab initio, entitling Appellant to injunction and damages.

He urged us to resolve the Issues for Appellant and allow the Appeal.

Responding, Chief F.A. Onuzulike, who settled the brief for the Respondent, on Issues 1 and 2, said a plaintiff in a declaratory action must succeed on the strength of his case. Gbadamosi Vs Dairo (2007) ALL FWLR (Pt.357) 812 at 836; Nwadigbu Vs Nnadozie (2001) FWLR (Pt.381) 1653 at 1666. Thus, he said the Appellant had the burden of proving his claims, that he was absolutely and exclusively entitled to the estate of late Alexander Echendu Okeke.

Counsel referred us to the pleadings of the Appellant in paragraph 14 of the Amended Statement of claim, where he said that his father died on 20/2/94 and he collected a letter of administration of the estate surviving son in 1995. He (Counsel) noted that the three pieces of land in contention were not expressly mentioned in the Appellants reliefs; but that in November, 2000 Appellant told the Respondent to stop further trespass on his lands but the defendant has refused to abide by this directive, presently, the defendant is forcefully occupying Ukwu-Ugba land, Ukwunkukoro land and Elu Okwukwuhie land part of which he built his house.” (See Paragraph 16 of the Amended Statement of claim).

Counsel said that the fulcrum of Appellant’s Case was that he be declared the inheritor of the three parcels of land pleaded in paragraph 16 (above); that the same formed part of the estate of the late father. Counsel submitted that Appellant had a duty to prove that the said three parcels of land, belonging to the Respondent, were, in fact, part of the estate of his (Appellant’s) father; that the Appellant failed woefully to do so; that the parties were ad idem that the late Alexander Echendu Okeke, had made a gift of the said lands, inter vivios, to the Respondent; that Appellant admitted same, under cross examination, when he said “my father gave him (Respondent) some pieces of land to farm on temporary basis.” The above followed the question:
“You are aware that your father gave some pieces of land to the defendant while he was alive.”

Counsel also referred us to page 36 of the Records, where Appellant, in his evidence in chief on 19/7/2006, said:
“Korie showed him (Respondent) a piece of land on which he erected a structure some years after the war the defendant came to my father pleading that he be accommodated temporary so that he could make arrangement to vacate our land and go home… still being a relation my father obligated him with temporary portion on which to stay…”

Counsel said it was the duty of the Appellant to prove all those averment, but he failed. He said that PW1 admitted that the Respondent built a block work on one of the three parcels of land, when Appellant’s late father was alive; that PW2, under cross examination, when asked: “Are you aware that Plaintiff’s father gave defendant the following pieces of land as a gift i.e. Uzo Okpu Uhu, Okwukwuihe?

PW2 answered “I do not know”, whereas PW2 was alleged to have witnessed the temporary gift of the lands. Counsel said that Appellant had a duty to establish that the gift was temporary. Counsel said the DW3 had stated that the gift was outright; he said that the DW1, DW2 and DW3, who testified for Respondent were relations of the two parties, and DW1 was the Chairman of the kindred of the parties (Appellant and Respondent) for 34 years; and DW2 testified as the oldest man in the kindred; that they were all privies to the inter vivios gift of the lands to the Respondent to build his home and settle in the family. Counsel relied on the case of Anya Ebunam Vs Osaka (2000) FWLR (Pt.27) 1942 at 195, on the effect of a gift of land, made inter vivios, that it is an outright gift. He said that the evidence of DW1 and DW2 fully agreed with that case of Ebunam Vs Osaka (supra). He also relied onAchodo Vs Akagha FWLR (Pt.186) 612.

On Issue 3, whether the burden of proof that the gift of the Lands was temporary, was on the Appellant, Counsel answered in the affirmative, saying that he who asserts must prove; he relied on Section 131 of the Evidence Act, 2011; Nwavu Vs Okoye (2009) ALL FWLR (Pt.451) 815.

On Issue 4, whether the trial Court was right in holding that the Respondent belonged to the family of Ichie Ovulorie Okeke, Counsel answered in the affirmative. He said that the fact of the “Iwa Akwa” ceremony of the Respondent, which is exclusively reserved for the indigenes of Umunohu Amakohia and the use of the surname ‘Okeke’ by the Respondent, were highly relevant to the effective and effectual determination of the issue that the Respondent belonged to the family of Ichie Ovulorie Okeke. Counsel added that Appellant could not prove his claim that the Respondent born in one Dimgbu Emehute’s family; he said that PW3, who was brought to claim the Respondent as belonging to his (PW3’s) family, could not say who was born first – Respondent or himself (PW3)!

Counsel said the trial Court was right in his holding that having been born and bred and adopted by the Ichie Ovulorie and the father of the Appellant and given the surname of the Okeke’s family, the Respondent belonged to the said family. He added that, under cross examination, Appellant admitted that the “Iwa Akwa” ceremony is meant for indigenes and that the Respondent went through the ceremony, and it was Appellant’s father who sponsored the Respondent at the ‘Iwa akwa’ ceremony. He referred us to the evidence of DW2 and DW3 on pages 66 and 74 of the Records, respectively; he said that DW3 said he went through the same ceremony in 1956, and his children also went through same, as indigenes of their community.

Counsel added that since the grandfather of the Appellant and his own father had accepted the Respondent into the family, gave him the family name – Moses Iwuji Okeke, notwithstanding the circumstances of his birth, it will be most improper for Appellant to discriminate against him (Respondent) and deny him the gift which his father gave to the Respondent, as a member of the family. He relied on Section 42(2) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. He said that the Respondent was entitled to the protection of the Constitution, and Appellant was stopped from subjecting the Respondent and members of his family to any disability or deprivation, because of the circumstances of his birth.

On Issue 5, whether Appellant was entitled to his claim for injunction and damages, Counsel answered in the negative. He said that where there is a claim for trespass, coupled with injunction, and the defendant challenges the title of the Claimant, the question of title to the land arises and has to be resolved. He argued that available evidence showed that the title to the 3 parcels of land had vested in the Respondent, the same having been given to him by the father of Appellant in his life time. He relied on Yakubu Vs Impresit Kokolori Plc (2011) ALL FWLR (Pt.598) 827; that to qualify to claim for injunction and damages, Appellant needed to prove title to the three parcels of land, which he failed to do.

Counsel added that the letters of administration (Exhibit A) which Appellant obtained did not include the three parcels of land, which Appellant laid claim to, and the said Exhibit A was not transmitted with the Records of Appeal. He asserted that the Letters of Administration contained no landed property, at all. He said that letters of administration usually carry or indicate the estate which the person issued, should administer. Counsel referred us to pages 106 and 107 of the period of Appeal, where the trial Court observed, as follows, about the Exhibit A:
“The letters of administration became Exhibit A in the proceedings, Exhibit A is in respect of the personal estate of the Plaintiff’s father to the tune of N4,321.05 at African Continental Bank Nig. Plc Etiti. So Exhibit A is not in respect of his lease hold. In fact, at the back of Exhibit A is stated thus: “Leasehold property ‘Nil’.”

Thus, Counsel said, Appellant was not in possession of the very land he claimed injunction and damages. He relied on Olagunju Vs Yahaya (2005) ALL FWLR (Pt.247) 1466.

Counsel said PW1 (Appellant) was telling lies on oath, when he said the three parcels of land were listed in the letters of administration – Exhibit A. He urged us to resolve the Issues against Appellant and to dismiss the Appeal.

RESOLUTION OF THE ISSUES
I think relevant Issues for the determination of this Appeal are two:
(1) Whether the trial Court was right to hold that the Appellant did not prove that the three parcels of land given to the Respondent by the father of the Appellant, inter vivos, were part of the estate of his late father for which he (Appellant) obtained letters of administration to administer.
(2) Whether the trial Court was correct to hold that the Respondent was a member of the Ovulorie Okeke family, having been accepted, as such, by Appellant’s family – the Appellant’s father and all, as per their prevailing native law and custom.

The Issue 1 (above) in my opinion, takes care of Appellant’s Issues (a), (b), (c) (d) and (g), while the Issue 2 (above) takes care of Appellant’s Issues (e) and (f). I should also observe that the Issues (a) to (d) by Appellant were proliferation and repetition of one and that same issue, in different words; the same with Issues (e) and (f).That was in-elegance in the formulation of issues for determination.

The Exhibit A, Letters of Administration, obtained by Appellant in 1995, to administer the estate of his late father, appeared to be the basis of Appellant’s claim at the trial Court. He had claimed absolute and exclusive entitlement to the estate of late Alexander Echendu Okeke, being the only surviving son of the late Alexander Echendu Okeke. Though Appellant did not specify the three parcels of land in contention, in the reliefs sought, he claimed the same formed part of the estate of his late father, and that the Respondent, whom he (Appellant) acknowledged as being in possession (having had lawful possession of the land, through his (Appellant’s) father), refused to vacate the 3 parcels of land, when he (Appellant) demanded for same, in 2000 after obtaining the letters of administration Exhibit A, in 1995.

The father died in 1994.There was evidence that the said three parcels of land were given to the Respondent (his father) by the Appellant’s father, when alive, who had recognized and acknowledged the Respondent as one of the members of the Ovulorie Okeke family. Appellant acknowledged the said gift of the 3 parcels of land to Respondent, but said the gift was a temporary gesture by his father! Of course, he had a duty to prove that the gift of the 3 parcels of land was a temporary gesture by his (Appellant’s) father, to entitle him to recover the same from the Respondent. He had waited from the 1994, when the father died, to 2000, to stake the claim!

The Law is trite, that he who alleges, must prove. See Section 131(1), 132 and 133 of the Evidence Act, 2011; Nnanna & Ors Vs Onyenakuchi & Ors (2000) LPELR – 6805 (CA); Giwa Vs Erimilokun (1961) ALL NLR 294; (1961) SCNLR 377; Dasuki Vs FRN & Ors (2018) LPELR – 43897 (SC).

Appellant had asserted that the said three parcels of land were listed in the Exhibit A, Letters of Administration, which vested him with power to assert exclusive right claim over the estate of his late father, as the only surviving son. But I do not think Appellant was honest in that assertion. On page 44 Records, when asked whether he could locate any of the 3 parcels of land in Exhibit A, he answered:
“Yes, they are part of the parcels of land mentioned in Exhibit A.”

Meanwhile, Appellant failed to produce the said Exhibit A at the hearing of this Appeal, and did not reproduce the same in the Records of Appeal. And the trial Court, when considering the content of the said Exhibit A (Letters of Administration) had said:
“Exhibit A is in respect of the personal estate of the Plaintiff’s father to the tune of N4,321.05 at African Continental Bank Nig. Plc, Etiti. So Exhibit A is not in respect of his real estate. In fact, at the back of Exhibit A is stated thus: Leasehold Property ‘NIL’.” (Pages 106 – 107 of the Records of Appeal).

Thus, having failed to lead evidence to show the said three parcels of land, given to the Respondent by his (Appellant’s) father, intervivos, or to locate the said ‘parcels of land in the Letters of Administration, issued to him to administer, as the estate of his late father, Appellant lacked the vires to assert claim over any of the 3 parcels of land, duly given to the Respondent by Appellants’ father, in his life time.And having failed to lead credible evidence to prove that the gift of the parcels of land by his father to the Respondent was temporary, Appellant’s Counsel, was, therefore, in grave error and confusion, when he submitted;
“No doubt, the initial entry of the defendant/respondent was lawful, but the grant was temporary grant. Thus, when the claimant/appellant, to whom the title to the parcels vested, demanded the return of the lands and the defendant/ respondent refused, he (defendant/ respondent) became a trespasser ab-initio, entitling the clamant/applicant to injunction and damages” (see page 18 of the Appellants Brief, paragraph 5).

The above shows that Appellant was misled to stage this whole aggression against his relation, creating unnecessary feud and acrimony in the family, which his grandfather and father, struggled to build, in peace. He (Appellant) had admitted that the Respondent started living with the grand father and his father, when he was about 8 years old; and that the Respondent was the son of Ukwuoma, (the daughter of Appellant’s family, his aunty, actually); that the Respondent was over 70 years old, (at the time Appellant sought to dispossess him of the lands given to him by his Appellant’s father!). He (Respondent) had built a permanent house on one of the parcels of land, raised a family and settled down with family of Ovulorie Ekeke, which surname, he shared, as a family name, only for the Appellant to start this aggression many years, after the settlement of the Respondent in the family and in the lands given to him by the father of the Appellant, and after the death of his said father. It is sad, indeed, that Appellant (and his counsel) elected to stoke such rancor and trouble for their families.

I resolve the Issue one against the Appellant, as I cannot fault the findings of the trial Court on the Issue.

Was the trial Court right to hold that the Respondent was a member of Ovulorie Ekeke family, in the circumstances of this case?

I have already reproduced the findings of the trial Court on the facts relating to the circumstances of the Respondent’s birth by Appellants Aunty, Ukwuoma, unmarried, sister of Appellant’s father, and how the father of Ukwuoma and her brother (Appellant’s father), accepted her and her son (Respondent), gave the Respondent a name and integrated him in the Ovulorie Okeke’s family, from the age of 7 or 8 years; the Respondent was initiated into the community, by going through what they called “Iwa Akwa” ceremony, meant to register indigenes of the community and the said ceremony was even sponsored by Appellant’s father!

Throughout the life time of Respondent’s mother, grand father and uncle (father of the Appellant), the Respondent was a comfortable member of the Ovulorie Ekeke family, having the name “Moses Iwuji Okeke”, and was allocated the 3 parcels of land by his uncle (Appellant’s father) in his (latter’s) life time, and he built his home on one of the lands. (See pages 114 – 115 of the Records of Appeal).

I have already expressed disgust with the Appellant and his Counsel for stoking hatred and rancor in their family, by subjecting the Respondent to ridicule, embarrassment and discrimination, seeking to deprive him of his rights to a family, and to lands given to him, because of the circumstances of his birth. To say the least, Appellant was extremely insensitive and callous, and I think the Counsel who goaded the Appellant on, and filed the process should be blamed for this avoidable dispute and rancor in the family. Even after the learned trial Court had, correctly, resolved the issues, in my view, Counsel failed to advise Appellant to seek peace and let the Respondent be, as Appellant’s grandfather and father did.

Section 42 of the 1999 Constitution, as amended, protects the Respondent against any form of discrimination and deprivation because of the circumstances of his birth. See the case of Mark Vs Ironu & Ors. (2019) LPELR – 47026 (CA), where this Court said:
“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 – 22724 SC… See also Igbozuruike & Ors Vs Onuador (2015) LPELR – 25530 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 constitutional 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.” (Pages 29 – 32)

The above decision shows that Appellant cannot wish away the Respondent as a member of the family of Ovulorie Ekeke, which he has grown up to know and belong as his family and which surname he and his children bear. Appellant cannot deny or deprive the Respondent the enjoyment of the family and property (lands) given to him by Appellants’ father, when he (Appellant’s father) was alive.

I cannot see any merit in this Appeal, which appears to be most provocative and insensitive. I resolve the Issues against the Appellant and dismiss the Appeal, as I affirm the decision of the trial Court.

Appellant shall pay the cost of this Appeal, assessed of one Hundred Thousand Naira (N100,000.00) only, payable to the Respondent.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: Having read the judgment just delivered by my learned brother I.G. Mbaba, JCA, in draft, I hereby totally agree with him that this appeal has no merit and only qualifies to be, and is hereby dismissed by me. I abide by the consequential orders made in the in the judgment.

Appearances:

INNOCENT OKORONYE (who settled the brief) with him, P.C. CHIKEZIE (MRS.) For Appellant(s)

CHIEF F. A. ONUZULIKE with him, MR. ONUZULIKE For Respondent(s)