Augustine Udensi v. Alice Mogbo (1976)

LawGlobal-Hub Lead Judgment Report

D. A. R. ALEXANDER, C.J.N.

In the High Court of the former East Central State holden at Onitsha (Agbakoba J.) the Respondents claimed from the Appellant, as follows:

(1) An account of the moneys received from the said property (i.e. the building known as 54 Moore Street Onitsha) since January 1971.

(2) An order for the payment by the Defendant to the Plaintiff of the amount due to the Plaintiff on the taking of such accounts.

(3) An injunction restraining the Defendant, his Agents and/or his servants from collecting any money from the said property.

The background to this claim as appears from the evidence of the Respondents which the learned trial Judge, in the Court below, accepted may be summarised thus: In 1935 the Mgbelekeke family of Onitsha acknowledged the father of the Respondents as Kola tenant in respect of the parcel of land at 54 Moore Street Onitsha in succession to one Peter Akor who surrendered his tenancy in that year to the said family. By Exhibit A (a tenancy agreement) the Respondents father (John Udensi) accepted a tenancy under the KOLA SYSTEM and in consideration of the sum of $10 he paid to the Mgbelekeke family aforesaid he was allowed the use of the said land free from all encumbrances but subject to two conditions viz

(a) that there was to be no alienation of the land, wholly or in part, without the prior consent of the Landlords and

(b) that every incoming tenant must be liable to further payment of Kola to the landlords.

Having taken possession of the said land John Udensi in 1936 completed the building now standing on the land and in which he and his family together with the father of the appellant (Dominic Udensi) lived from 1938 until his death in 1940. A year or two prior to the death of John Udensi, the father of the appellant (Dominic Udensi) had gone to live at Aba, but after the death of John Udensi the appellants  father, at the request of the mother of the Respondents came from Aba to Onitsha to live with the Respondents and their mother at 54 Moore Street.

After the death of John Udensi, Dominic (the father of the appellant) made an unsuccessful claim to the property now in dispute. A settlement of the dispute following the futile claim by Dominic was made in the house of Joseph Modebe between Dominic and the Respondents mother, who was persuaded to hand over to the said Dominic the plan of the property (54 Moore Street  hereafter referred to as the property-in-dispute) Exh. B and the Kola tenancy agreement, Exh. A. Thereafter Dominic collected the rents in respect of the portion of the property in dispute, not occupied by the Respondents and their mother but occupied by tenants. Dominic applied the rents so collected towards the benefit and welfare of the Respondents.

In 1971, however, Dominic Udensi died and his son the appellant started to collect rents due on the property in dispute; he was challenged by the Respondents and consequently he laid claim to the said property. Briefly, the case for the appellant was that he succeeded to the property by right of inheritance. Account to him Exhs A & B (the Kola tenancy agreement and the plan of the building at 54 Moore Street Onitsha, respectively) were, by consent of his father (Dominic Udensi) made in the name of John Udensi. John Udensi was a pauper having been employed throughout his life time as a poorly paid night-watchman. Dominic Udensi, according to the appellant, was a prosperous trader and it was he who provided the money with which the land at 54 Moore Street was purchased and the building therein erected.

Alternatively, the appellant claims the property in dispute by virtue of the ILI-EKPE custom of the people of Ezinifite, to which the Udensi families belong. It is a custom whereby the property of a deceased, who died without any male issue surviving him, is inherited by his brother who performed the customary second burial ceremonies of the deceased.

The first defence witness (Nathaniel Ayika) testified to the existence of this custom among the Ezinifite community to which the Udensi families belong; he had the third defence witness (Umeokeke Ume  Oninihu) testified that the late Dominic Udense having performed the customary second burial ceremonies of John Udensi inherited by the customary laws of their people of Ezinifite the properties of the later (i.e. John Udensi). Accordingly, when Dominic died in April 1971, all the property of late Dominic Udensi (54 Moore Street Onitsha inclusive) passed, by inheritance, to the appellant. The appellant then proceeded to collect rents paid by tenants on th

Other Citation: (1976) LCN/2284(SC)