Onyejekwe V Onyejekwe (1999)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

The appellants were defendants before the Onitsha High Court. The respondents who were the plaintiffs at the trial court instituted this action and claimed against the appellants for equitable distribution or sharing of 18 plots of family land known as “Owoelebo” which plots of land were allocated to Orowa family by the Umueze Aroli community.

The 18 plots which were granted to Orowa family were part of,the Owelebo land which the Umueze Aroli community won in a land dispute with Isiokwe village. The 1st, 2nd and 3rd respondents, in this appeal, had contributed to the levy imposed on all members of Umueze Aroli families for the Owelebo land litigation. It was after the final litigation which went in favour of Umueze Aroli families that the 18 plots from the disputed land were allocated to the Orowa family.

The appellants were committee members of Orowa family union and were charged with the sharing of the 18 plots allocated to the family. In the statement of claim the respondents pleaded further as follows:-

“6. There are principally 10 sub-families in Orowa family. And they are:-

(a) The family of late Michael Agbakoba

(b) The family of late Joseph Agbakoba

(c) The family of late George Irekwu

(d) The family of late Akunne Akosa

(e) The family of late Nnaka Onyejekwe

(f) The family of late Tigbilo Onyejekwe

(g) The family of Omekasi Onyejekwe

(h) The family of late Akunwafor Onyejekwe

(i) The family of late Igwe Onyejekwe

(j) The family of late James Egbuche.

Each sub-family has more than one male member living. In some sub families (here are two or three married men and in others one married man. There are 24 married men living in Orowa family as of now.

7. There are 18 plots and 10 sub-families. According to Onitsha custom if these plots are to be shared, each sub-family or kitchen as of right must be given a plot each, provided there is a male issue in the said family. The remaining plots will be sold and the money shared amongst the sub-families.
8. The Onitsha custom is that you share landed property according to the number of kitchens or “usokwu” a man has, provided that the kitchen has a male issue.

There are three main sections in Orowa family, Orowa had three sons namely:

(a) Ozoma Chima (b) Alana and (c) Ume

(a) Ozoma Chima had two sons: Agbakoba and Akosa.

While Agbakoba begot Ogbanje and Okani. Ogbanje had a son Chima and Okani had four sons. And Akosa subfamily has two of his sons living, the 4th defendant and his brother. (sic).

(b) Alana section – Alana had a son Irekwu. The only surviving descendant of Irekwu is John Irekwu.

(c) Ume had two sons namely Okosi and Okenwa. Okosi begot Egbuche Ezekamba who begot James Egbuche and who begot the 3rd defendant; Herbert Egbuche. Okenwa begot Onyejekwe Osisani. Onyejekwe had three wives who had five sons for him, namely (1) Ojinaka (2) Tigbilo (3) Umekasia (4) Akunwafor and (5) Igwe Joseph Onyejekwe.

Ojinaka, Tigbilo and Umekasia were brothers of full blood and came from one kitchen or usokwu. While Akunwafor was the only son of his mother.

Likewise Igwe Joseph Onyejekwe the only son of his own kitchen.

The plaintiffs state that if the 18 plots were to be shared according to the 3 main sections of Orowa family each section would get six plots.

The Ozoma Chima section would sub-divide and Agbakoba subfamily would take three plots, and theAkasasub-family three plots. The Alana lrekwu section will take six plots. The Ume section will sub-divide, three going to Egbuche and the otherthree to Onyejekwe section. Onyejekwe who had three wives would again sub-divide their three plots. One plot will go to Ojinaka and his two brothers. One plot to Akunwaforand one plot to Igwe Onyejekwe sub-family according to Onitsha custom. But the late elders in order to maintain equity in the family during their time had shared things including levies by sub-families.

9. The plots to be shared are well known to the plaintiffs and defendants and do not require a plan. The said Owelebo land was made into a layout which had defined plots with numbers.
10. The defendants had abandoned this customary method of distribution and have allocated two or three plots to some sub-families while others have got a plot each.
11. On the 3rd December, 1983, the defendants purported to have allotted three plots to seven persons from different sub-families contrary to any known basis or custom and which allotment was most inequitable. The plaintiffs will rely on the letter addressed to the 1st plaintiff by the Secretary of Orowa Union dated 3rd December, 1983. His reply dated 7th December, 1983 was also a letter dated 8th December, 1991 addressed to the President. Secretary – Mr. Chike Akosa,”

The appellants denied the claim. In their statement of defence the appellants averred that properties. in accordance with Onitsha native law and custom, are shared amongs the living. The sharing of landed property to wives who bore at least a male living issue applies where properties belong to one individual. Any remaining rims will be dealt with as the family deems fit. The appellants further averred that the sharing by “usokwu” or per stripes would apply where an individual with wives own the property. The property in this case is a communal one and was allotted to the Orowa family by virtue of their singular spiritual headship. The Orowa family agreed that the sharing of the 18 plots would be among the present married members of the family. To arrive at the best utility and equitable sharing the family took as their basis the spiritual head and age in order of priority. The spiritual head took one plot and the remaining 17 plots were shared in accordance with the procedure disclosed in paragraph 9 of the statement of defence.

The trial opened and four witnesses testified for the plaintiffs/respondents. The appellants did not call evidence for the defence but relied on the defence adduced by the plaintiffs/respondents. The learned trial Judge considered the pleadings and evidence adduced and resolved in his judgment that the plaintiffs/respondents have failed to prove that the sharing of the plots must be made through. “Usokwu”system. Secondly, the plaintiffs/respondents have failed to prove that the method used in the sharing of the plots was inequitable. He therefore dismissed the claim.

Dissatisfied with the judgment the appellants appealed to the Court of Appeal. Enugu Division, The lower court, per the judgment of Achike JCA (as he then was) with which Nasir, President of the Court of Appeal and Ogundere JCA concurred allowed the appeal and shared the 18 plots in the following manner:

“(1) Each of the ten sub-families of Orowa family already mentioned and included in the list set out above in this judgment should not be allocated a plot.

(2) The said sub-families will be paired and each pair should also be allocated a plot wherein each sub-family will be entitled to either half a plot or half the proceeds from disposition of the said plot.

(3) The remaining three plots should be disposed or and the proceeds therefrom divided equally among the ten.”

The defendants who are now appellants in this appeal were aggrieved by the decision of the Court of Appeal. Armed with eight grounds of appeal they tiled this appeal contesting the decision of the Court of Appeal. Learned counsel for the respective parties formulated issues from the grounds of appeal. The issues of both parties although couched in different terminologies are basically the same. I therefore intend to consider this appeal from the issues identified by the learned counsel for the appellants, They read as follows:

“Issues and questions for determination as raised in this appeal

1. Did the Court of Appeal substitute its views in place of the trial court’s decision with respect to the sharing of 18 plots of Owelebo land, and if they did was it proper
2. Did the learned Justices of the Court of Appeal award the plaintiffs/respondents more than they sought for’
3. Did the learned Justices of the Court of Appeal come to a wrong conclusion when they stated that “stricto sensu, it can not be fairly said that appellants contended that the “Usokwu” system was applicable in the case in hand because in the first relief sought by them they simply prayed the court to decree an equitable mode of sharing
4. Did the learned Justices of the Court of Appeal misdirect themselves when they found that members of Orowa family were dissatisfied with the method of sharing adopted by the defendants and laid emphasis on Exhibit “A” in deciding that the method of sharing of the defendants was inequitable
5. Did the Court of Appeal misdirect itself when it found as a fact that:-

‘Thus the applicability of Usokwu system even to the 10 sub-families of Orowa family could not be insisted on as it was not borne out by evidence led in support of this contention nor was it in fact pleaded but turned around to order for a sharing on the basis of the discarded 10 sub-families which was the kernel of the usokwu (or kitchen) system pleaded by the plaintiff now respondents’”

6. Did the learned Justices or the Court of Appeal formulate an issue which was not an issue contested by the parties
7. Were the learned Justices of the Court of Appeal right when they decided that apart from the Usokwu” system the learned trial Judge did not evaluate all other credible evidence produced at the trial””

The main plank of the appellants’ appeal is the decision of the Court of Appeal resorting to another mode of sharing of the 18 plots after accepting that the principle of customary law of “usokwu” pleaded by the respondents had not been proved by them. Learned counsel for the appellants submitted that after the lower court rejected the “Usokwu”, kitchen or sub-family system it turned round and adopted the sub-families as the basis for sharing. This is what the lower court held as follows:-

“In this premises, it seems to me that the principle or the maxim, equity is equality, (sic) can be reasonably and conveniently applied to the circumstances of this case to the satisfaction of all concerned.

It is in evidence that the principal sub-families that comprise the Orowa family are made up as follows…

… Now, if one plot is allocated to each sub-family and thereafter two sub families are paired together and allocated a plot, there will remain three plots. These three plots should be sold and the proceeds equally divided among the ten sub-families. The Orowa family is already familiar with pairing two males to share a plot: the same principle should conveniently be applied to sub-families.

Again, the sale of the three remaining plots and sharing of the proceeds resulting therefrom is easily the simplest arithmetical exercise. It seems to me clearly the rationale of sharing on the principle of “equality is equity” along the lines setout above, would meet the justice of the competing interests of the appellants, the respondents and all the other members of the ten sub-families from whom dues or varying amounts have been exacted.”

I agree that the Court of Appeal is blowing hot and cold on the issue of sharing of the plots according to sub-family system. It, Usokwu” has been defined by the respondents that under the system the man’s landed property is shared among several “usokwus” that each “usokwu” has a living male issue. Usokwu in this con may be literally interpreted to mean a “wife’s kitchen” and comprises all the children of each wife. In other words, “Usokwu”, in so far as it includes a male child, is the recognised unit for sharing a deceased male’s landed property in Onitsha.

It is quite plain that Awogu J. (as he then was} evaluated the evidence adduced by the respondents through their four witnesses. The learned trial Judge referred to both pleadings and evidence adduced and held as follows:-

“In principle, once communal land is divided among the families that make up the community, it ceases to be communal land and becomes family land, but the plaintiffs neither pleaded nor led evidence in support of this aspect of custom. A custom must not only be pleaded but must be proved by evidence, unless it has acquired notoriety. (See Kareem & ors v. Ogunde & anor. (1972) 1 All NLR 73 at 80).

The plaintiffs led evidence in support of their contention that the plots should be shared among the Orowa family “usokwu” by usokwu”. This evidence is however contradicted by some of the witnesses of the plaintiffs. PW4, Patrick Anyaorah Okpala of Ozomike, limited the “Usokwu” system to a man and his nuclear family and said it did not apply to family lands. PW3, Chike Akosa, President of the Customary Court, Onitsha, said that the Orowa family tried to evolve a formula for the sharing of the 18 plots but failed. In other words, there was no agreement even among the Orowa family that the “Usokwu” system was the only formula applicable to the sharing. Although he protested about the manner of the sharing, he still retained the plot which he got as a share.”

It is part of respondent’s statement of claim that according to Onitsha custom, if the 18 plots are shared each of 10 sub- families or kitchen as of right must be given a plot. In other words, it is the case of respondents before the court that the system of sharing landed property in Onitsha is by “usokwu” or “kitchen” or sub-families; all these methods of sharing were used interchangeably in the proceedings. It is for the respondents to call evidence and establish their custom. They failed to do so. Their case stands or falls on what they asserted and proved. It is trite that the burden of proving particular fact is on the party who seeks to rely on it and who will fail where such evidence is not adduced. See Madam I. Arose v. Peter U. Arase (1981) 5 SC 33.

I therefore agree with learned counsel for the appellants that the Court of Appeal had erred when it re-evaluated the evidence and came up with a sharing system which the respondents did not ask for. It is not the business of the Court of Appeal to substitute its own view for the views of the trial court. If there has been proper appraisal of evidence by a trial court, a Court of Appeal ought not to embark on a fresh appraisal of the same evidence in order to arrive at a different conclusion from that reached by the trial court. See Obisanya v. Nwoko (1974) 5 SC. 69 at 80 and Victor Woluchem & ors v. Chief Gudi & ors. (1981) 5 SC. 291 at 326.

The question whether the learned Justices of the Court of Appeal awarded the plaintiffs/respondents more than what they sought for can be answered straight away in the affirmative. The Court of Appeal, in its judgment held as follows:

“Now if one plot is allocated to each sub-family and thereafter two sub-families are paired together and allocated a plot, there will remain three plots. These three plots should be sold and the proceeds equally divided among the ten sub-families. The Orowa family is already familiar with pairing two males to share a plot; the same principle should conveniently be applied to sub-families. Again, the sale of the three remaining plots and sharing of the proceeds resulting therefrom is easily the simplest of arithmetical exercise.”

This arithmetical exercise is uncalled for. There is no pleading or evidence to support it. The Northern Nigerian High Court considering an appeal from a criminal trial conducted by a Magistrate in the case of Muhammad v. Durimin-Iya v. Commissioner of Police (1961) NRNLR 70 held:

…The function of a court is to decide between the parties on the basis of what has been so demonstrated and tested. What was demonstrated in court at this trial failed to support the prosecutions’ case, and the Magistrate should have dismissed the case. It was no part of his duty to do cloistered justice by making an inquiry into the case outside court – not even by the examination of documents which were in evidence, when the documents had not been examined in court and the magistrate’s examination disclosed things that had not been brought out and exposed to test in court, or were not things that, at least, must have been noticed in court. We will not do it ourselves; neither will we allow the respondent to demonstrate now in this court what as prosecutor he had the opportunity of demonstrating at the trial. The appeal will be allowed.

The distribution of plots embarked by the learned Justice of the Court of Appeal is not supported by pleadings and evidence. Where pleadings have been joined by the parties in a case the judgment of the court must be based both on the facts and the law on issues joined by the parties on their pleadings. A court should not embark on dealing with issues not raised in the pleadings nor should it give judgment on issues on which either counsel had not been called upon to address the court. See Aseimo & ors v. Amos & ors. (1975) NSCC43 and African Continental Seaways Ltd v. Nigeria Dredging Roads and General Works Ltd (1977) 5 Sc. 235 at 248.

The claim of the respondents is for an equitable sharing of the 18 plots according to sub- families that make up Orowa family and the right to receive one plot of land in Owelebo communal land. The 4th plaintiff stated in evidence thus:

“I am familiar with the “Usokwu” system of land sharing in Onitsha. It applies when a man with many wives dies intestate and his properties have to be shared among the wives with male issues surviving.”

The witness later said that “Usokwu” system applies only to a man and his family and does not apply to lands owned by a family or communal land. This is the custom as described by the witness or the plaintiffs/respondents. This explanation has gone contrary to the pleadings of the respondents. The learned Justice of the Court of Appeal found that the “Usokwu” custom which the respondents’ pleaded was not proved and not relevant to their claim. However, instead of agreeing with the learned trial Judge to dismiss respondents’ claim he took shelter under the principle of English Law of Equity. That, with respect, is erroneous. It is my view that the Onitsha customary law of “usokwu” or kitchen has won recognition as a mode of distribution of property on intestacy. The customary law is not unfair and inequitable, It is quite plain however that the custom does not apply to the case of the respondents.

Be that as it may, the method which the appellants adopted in sharing the 18 plots i.e. through spiritual headship, marital status and age has been held by the trial High Court equitable and the respondents had failed to find fault in the system during trial.

In consequence, this appeal succeeds and it is allowed. The judgment of the Court of Appeal is set aside, The judgment of Onitsha High Court dismissing the. claim of the respondents is hereby restored. I award N10,000.00 in favour of the appellants.

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SC. 160/1991