Chukwuemeka N. Ojiogu Vs Leonard Ojiogu (2010)

LAWGLOBAL HUB Lead Judgment Report

C. M. CHUKWUMA-ENEH, J.S.C. 

In the trial court i.e. the Anambra State High Court of Nnewi Judicial Division the plaintiff (the appellant) claims against the sale defendant – Stephen Ojiogu (deceased) (later substituted by the respondents) as per paragraph 20 of the Amended Statement of Claim as follows: “(i) A declaration of court that the plaintiff is the son of late Nwachukwu Ojiogu, the elder brother of the defendant and as such the person entitled to occupy the “Obi” compound and “Obi” lands of Ojiogu Ifionu of Ndiojukwu-Uruagu-Nnewi in accordance with the Nnewi Native Law and Custom. (ii)A declaration of court that it is the right and responsibility of the plaintiff under Nnewi law and custom as “Diokpala” in Ojiogu lfionu family to allot to the defendant, the defendant’s share of the unshared family land of Ojiogu. (iii)A declaration of court that the three commercial buildings erected (sic) on Ojiogu Ifionu’s family land by the defendant from the proceeds of a disposition by sale of a portion of Ojiogu Ifionu family land to one Eric Anosike are common properties of both plaintiff and the defendant. (iv) An injunction restraining the defendant his agents and servants from unilaterally meddling, controlling, alienating or managing any portion of Ojiogu Ifionu’s estate whatsoever at the exclusion of the plaintiff who is a full grown adult-male with children, until the said estate is properly shared and demarcated between the plaintiff and the defendant under Nnewi native law and custom.” Nine witnesses including the plaintiff testified in support of the plaintiff’s case while five witnesses testified for the defence. At the close of learned Counsel’s addresses the trial court in a considered judgment upheld the plaintiff’s entitlement to the reliefs sought in the clairn and granted the same accordingly. In concluding the judgment, the trial court at page 240 of the Record pronounced as follows: “I have held above that from the evidence before me Stephen Ojiogu did not perform “Itugha Nkwu” customary ceremony for Margaret Ojiogu. That being so, Margaret Ojiogu continued to be the wife of Nwachukwu Ojiogu since she is still living in Nwachukwu Ojiogu’s Ojiogu’s (sic) house, under the customary law of Nnewi people. I hold that the plaintiff even though born Seven years after the death of Nwacbukwu Ojiogu, is the son of Nwachukwu Ojiogu according to the customary law of Nnewi people. There is evidence that the plaintiff is the first son of Nwachukwu Ojiogu. It follows then that since it is common ground that Nwachukwu Ojiogu was the head or Obi of Ojiogu Ifionu family and that Ojiogu Ifionu’s property has not been shared, the plaintiff is the head or Obi of Ojiogu’s Ifionu’s family, and I so hold.” The defendants being dissatisfied with the decision have appealed to the Court of Appeal, Enugu Division which allowed the appeal and set aside the judgment of the trial court by holding at page 326 of the record thus:

“From the facts of this case, it is not disputed that the respondent was born seven years after the death of his purported father. A dead person cannot procreate. The Nnewi custom which allowed such a practice is certainly contrary to natural justice, equity and good conscience. The trial Judge was therefore wrong in upholding that custom. Consequently, it is my view that the first relief in the respondent’s claim upon which depended the other reliefs was not proved before the trial court.”

The implication from the foregoing is that the court below in exercise of its equitable jurisdiction has acted as the “keeper of the conscience of native communities” as it were; and so has not seen it fit to approve of the “Itugha Nkwu” custom of Nnewi people. In striking down this custom it has employed the repugnancy clause principle; which I will have to expatiate upon later in this judgment.

Being dissatisfied with the decision the plaintiff (i.e. appellant) has appealed to this court as per a Notice of Appeal filed on 9/11/2004 containing three grounds of appeal. In his brief of argument filed on 23/4/2007 in accordance with the rules of this court, the appellant has raised two issues for determination to wit:

1.”Whether it was proper for the Court of Appeal to decide the appeal before it on the basis of an issue not treated at the trial court and in respect of which there was no ground of appeal and no leave was sought or granted for same to be raised as a fresh point on appeal.

2. Whether the Court of Appeal was right to apply the decision in Okonkwo v. Okonkwo (1994) 9 NWLR (368) 301 to invalidate the “Hugha Nlnvn” custom when both parties aceepted and admitted the custom as applicable.”

The defendants have also on 15/1/2010 filed the respondents’ amended brief of argument and therein have raised one issue for determination to wit: “Whether the issue of repugnancy came up in the Court of Appeal for the first time, and if it did whether or not the Court of Appeal could have dealt with it without leave and indeed whether the claim of the appellant that he was the son of Nwachukwu Ojiogu who died seven years before he was born, is repugnant to natural justice, equity and good conscience.” Save perhaps expatiating expatiating further on the effect of the custom of “Itugha Nkwu”, I think the facts as stated in the above reliefs will suffice in dealing with i.e. resolving the main issue in this appeal. On the pleadings as per the amended statement of claim and evidence by the plaintiff/appellant as by the defendants/respondents – the instant custom dictates that for a brother to re-marry his late brother’s wife he has to perform “Itugha Nkwu” custom. The details of its performance as such are immaterial here, for, again, dealing with this appeal. However, the effect of its performance is that the brother of the deceased now takes over the burden and responsibilities including inheriting the proprietary rights of the late brother’s family as he remarries his late brother’s wife. But where this custom has not been performed because the late brother’s wife is not willing as in this case; it is permissible for the brother all the same to perform “Inye Mma” custom which enables the widow of his late brother to end the widowhood and get re-integrated into the family and larger society. In fact, it is not in dispute that the late original defendant i.e. Stephen Ojiogu has performed “Inye Mma” custom and is the biological father of the plaintiff. Indeed, it is the defence case that the defendant remarried the plaintiff’s mother but not by “ltugha Nkwu” custom but by performing “Inye Mma” custom and that the plaintiff is therefore his first son and so, should customarily take his inheritance after the death of his father i.e. the original sale defendant (Stephen Ojiogu). The appellant’s case is that nowhere in the pleadings and evidence before the trial court has the question of the repugnancy of the said “Itugha Nkwu” custom of the Nnewi people been made an issue in the case. And that in that vein it is needless asserting whether neither the plaintiff/appellant and his eight witnesses nor the defence five witnesses have testified or even have been cross-examined as to the repugnancy of “ltugha Nkwu” custom of the Nnewi people. The appellant argues that the question has now surfaced for the first time via the issue raised for determination in the court below and as having been formulated from ground one of the grounds of appeal tiled by the instant respondent as the appellant in the court below. The appellant has challenged the competency of the issue as it has not arisen from ground one or any of the grounds of appeal and so it has not been properly laid before the court below for adjudication. See: Attorney-General Bendel State v. Aiyedan (1989) 4 NWLR (Pt.118) 646 at 665; Opara v. Omolu (2002) 10 NWLR (Pt.774) 177 at 189 Paragraph H; Yusuf v. Kode(2002) 6 NWLR (Pt.762) 231 at 245 paragraph D; Osinupebi v. Saibu (1982) 7 SC.104 at 110 and Ogundiyan v. State (1991) 3 NWLR (Pt.181) 519 at 532. He also submits in the circumstances, that such an issue not having been founded on any of the grounds of appeal has even then raised a fresh issue of repugnancy of “Itugha Nkwu” custom before the court below and therefore requires leave of court and that without leave having been first sought and obtained the said issue for determination has been incompetently raised. See: Musa v. INEC (2002) 11 NWLR (Pt.778) 223 at 300 paragraphs B-E;Queen Bank Plc v. Olatunyi (2002) 12 NWLR (Pt.781) 259 at 302 paragraphs C-F, Even moreso, it is submitted as wrong in law in that as the question of repugnancy has not been pleaded nor at all canvassed before the trial court it is improper to throw out the trial court’s decision on that sole ground. See: Comptor Commercial and Industry S.P.R. Ltd. V. Ogun State Water Cooperation (2002) 9 NWLR (Pt.773) 629 at 651 paragraphs B-C; Inyang v. Ebong (2002) 2 NWLR (Pt.75 1) 284 at 332 paragraphs A-F.

Furthermore, the appellant submits that the decision of the court below has occasioned a miscarriage of justice by founding its decision upon an incompetent point. See: Ndukwe v. Baronci (1994) NWLR (Pt.367) 241 at 246 and Okonji v. Nwacbukwu (1991) 7 NWLR (Pt.202) 131. The court is urged to answer the 1st issue in the negative and allow the appeal. On issue 2: That is on the justification of the court below relying on the case of Okonkwo v. Okagbue (1994) 9 NWLR (Pt.368) 301 in reaching the conclusion to upset the trial court’s decision basing it on the said custom being repugnant to natural justice, equity and good conscience; the appellant submits that the two cases i.e. this case as against the cited case are different on the basis of facts and circumstances and even then that there is nothing barbarous or inequitable about “Itugha Nkwu” custom which has been accepted and admitted as pleaded by both parties. The appellant having examined the custom against the background of the provisions of Section 42(2) of the 1999 Constitution has urged that the appellant should not be subjected to any disability and deprivation because of the circumstances of his birth by striking down the custom.

He makes the point that as the facts stand now that the appellant is admitted to be the “first son” of the original sale defendant i.e. Stephen Ojiogu now deceased and so the oldest surviving male member of the Ojiogu lfionu’s family, which fact has been admitted by the respondents and therefore the “Diokpala” of the family. (That is to say, head or tail, it is win win position for the appellant). The court is urged to resolve the issue in favour of the appellant and allow the appeal. The respondent’s case on appeal is rather terse, simple and straight forward. He has joined issues on the question that there has been no reference by way of cross examination and address by counsel on the repugnancy of “Itugha Nkwu” custom at the trial court and so, also that this question rightly has formed the basis of the said ground of appeal and the Issue raised therefrom and thereby has debunked the claim that the respondent has raised a fresh point of Jaw not otherwise raised before the trial court. He therefore has canvassed the point that the custom has been canvassed in the proceedings in the trial court to warrant the disparaging pronouncement of the court below, that has invalidated the plaintiff’s case as a whole.

For all this, the respondent further contends that the court below is obliged to draw any necessary conclusions or make inferences from the record before it in order to reach the correct conclusion to dismiss the claim and relies on Gbadamosi v. Dairo (2007) 3 MJSC 1 at p.2l paragraph A; Section 14(3) of the Evidence Act and on the case of Okonkwo v. Okagbue (supra). PAGE 3 The respondent also has contended as extraneous any suggestions that “Itugha Nkwu” custom has anything to do with Section 42(2) of the 1999 Constitution particularly as no issue of discrimination or deprivation per se has been joined on the section in this matter nor are there any pronouncements by both lower courts on it or even so any appeal on it. The court is urged to dismiss the appeal as devoid of any merit.

The appellants reply brief is, with respect, most superfluous and a waste of valuable time as there are no new points raised in the respondent’s brief of argument to necessitate a reply brief here. For the umpteen time a reply brief is necessary when an issue of law or new questions are raised in the respondent’s brief of argument otherwise it is not required. The instant appellant’s reply brief is unnecessary as it is tediously repetitive of the appellant’s case as adequately covered in the main brief of argument. This appeal has thrust forward once again the ageless contemporary issue of repugnancy principle in the proper application of customary law in this country. Simply put, it meal s that there are provisions which set down the test customary law must be subjected before it is observed and even so enforced by the courts. These are without mentioning them here not necessary for deciding this case as specific enactments containing repugnancy clauses.

However a number of cases dating from the reception of English Law in Nigeria have expounded this principle such as and including Laoye and Ors. V. Oyetunde (1913) AC 662; (1931) AER (Ref.) 44, Lewis v. Bankole (1908) 1 NLR 81; Amachree v.Goodhead (1923) 4 NLR 101; Cole and Anor. v. Akinyele & Ors. (1960) 5 FSC 84, Ashogbon v. Oduntan (1935) 12 NLR 7, Effiong Okon Ata Ekpan v. Henshaw & Anor. (1930) 10 NLR 65 at p.66. These enactments as expounded in the above cited cases, demonstrate the criteria for enforcing of native law and custom. Currently this principle is clearly provided for as in the proviso to Section 14(3) of the Evidence Act and Section 14(3) reads thus: “Where a custom cannot be established as one judicially noticed it may be established and adopted as part of the law governing particular circumstances by calling evidence to show that persons or the class of persons concerned in the particular area regard the alleged custom as binding upon them. Provided that in case of any custom relied upon in any judicial proceeding it shall not be enforced as law if it is contrary to public policy and is not in accordance with natural justice, equity and good conscience. “

The foregoing provision simply put comprises the tests which native law and custom must surmount or subject to before it is accorded acceptance and recognition and enforced by the courts. The subsection has even widened the criteria by adding that the native law and custom must also not be against public policy which has been described as an unruly horse, which may otherwise lead you from the sound law, per Burrough J. in Richardson v. Mellish. It is to give some perspective to the crux of this matter that I have made the digression. Besides, the issue of repugnancy is central to this appeal. Coming to the specific questions in this appeal, I think it is the stage to examine the said issue for determination and ground one of the grounds of appeal from which the said issue for determination has been formulated for adjudication by the court below as both questions are in the eye of the storm in this appeal; it is even more so as it is the only issue decided by the court below in allowing the appeal and dismissing the plaintiff’s claim.

The said issue reads as follows: “Whether it is not contrary to natural justice, equity and good conscience for the plaintiff to claim that he is the son of Nwachukwu Ojiogu the deceased husband of his mother and as a result disinherit the defendant of the Obi compound and other lands when he was born seven (7) years after the death of his mother’s husband, Nwachukwu Ojiogu.” The issue is alleged to have been formulated from ground 1 of the grounds of appeal to the court below and it reads: