Anthony Aduba & Ors V. Titus Aduba (2008)
LawGlobal-Hub Lead Judgment Report
ITA GEORGE MBABA, J.C.A.
This is an appeal against the judgment of the Imo State High Court in Suit No. HAM/9/2002, delivered on 29th March, 2011, by Hon. Justice U.D. Ogwurike, wherein the learned trial Court held for the Plaintiff, that he was the adopted son of Aduba Ohagwan Nwaemere, and that he was entitled to the Customary Right of Occupancy of the land and building in dispute. The Court also nullified the partitioning of the family land of Aduba Ohagwan Nwaemere, and made an order of perpetual injunction against the Defendants, against discrimination of the Respondent and his family.
At the trial Court the Plaintiff (now Respondent) had sought:
(a) A declaration that the Plaintiff being a member of late Nwaemere Aduba family of Ezialakohu Nguru in Aboh Mbaise Local Government Area of Imo State is entitled, by law, to inherit, together with the Defendants, the landed property and estate of late Nwaemere Aduba.
(b) A declaration of the Court that the landed property and estate of late Nwaemere Aduba who married two wives, be partitioned or shared, according to the native laws and customs of
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Ezialakohu Nguru in Aboh Mbaise, between the 2 kitchens of late Nwaemere Aduba represented by the Plaintiff on one hand and the Defendants on the other hand.
(c) A declaration of the Court that the purported sharing or partitioning of the landed estate of Nwaemere Aduba by the Defendants among themselves, in exclusion of the Plaintiff, is discriminatory, null and void and therefore of no effect.
(d) A declaration of the Court that the Plaintiff is entitled to the grant of Customary Right of Occupancy of all the piece or parcel of land known as and called ORU APU, now called EZI TITUS ADUBA, together with the 7-room building thereon and its appurtenances, situate and lying at Ezialakohu Nguru in Aboh Mbaise Local Government within jurisdiction.
(e) An Order of Court restraining the Defendants from discriminating against the Plaintiff and members of his family in the affairs of late Nwaemere Aduba family.
(f) Perpetual Injunction restraining the Defendants, their agents, privies and workmen from further trespass to the land mentioned above.
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After hearing the case and considering the addresses of Counsel, the learned trial Court held:
It is evident from the evidence of the witnesses in this case on both sides that the Plaintiff was brought into the Aduba Ohagwam Nwaemere family at the age of 5 years; that this was in 1072; that the Plaintiff grew into adulthood in that family, got married and has children; that Aduba Ohagwam Nwaemere and his wife, Felicia Nwugo Aduba are now both dead, Aduba Ohagwam Nwaemere having died on 29/01/2000 and his wife Felicia Nwugo Aduba died on 29/12/1999; that the Plaintiff and his wife and children bear the family surname Aduba; that the Plaintiff has been known by the surname since he came into the family. From the evidence of the Plaintiff and his witnesses, which I believe to be true, the Plaintiffs membership of the Aduba Ohagwam Nwaemere family was only challenged by the Defendants after the death of Aduba Ohagwam Nwaemere and his wife, Felicia Nwugo Aduba. It is observed that 3rd Defendant (DW3), in his evidence, alleged that his father Aduba Ohagwam Nwaemere was not a party to Exhibit F, the Foster Care Agreement Form; that he (Aduba Ohagwam Nwaemere) regarded the Plaintiff as the
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property of his wife, Mrs. Felicia Nwugo Aduba. I do not believe this evidence of 3rd Defendant, DW3. This is because in the natural cause of events, Aduba Ohagwam Nwaemere would not have allowed the Plaintiff to continue to bear his family name Aduba from the time he was received into that family at the age of 5 years and into adulthood, without any protest In the circumstance of this case, I hold that it will be inequitable and unconscionable to now say that Plaintiff is not their adopted child. See page 337 of the Records of Appeal.
The trial Court went on to enter judgment for the Plaintiff (Respondent herein) against the Defendants (Appellants) in respects of reliefs (a) (c) (d) (e) and (f), namely:
1. I hereby declare that the Plaintiff, being a member of late NWAEMERE ADUBA family of Ezialakohu Nguru in Aboh Mbaise Local Government Area of Imo State, is entitled by law to inherit, together with the defendants, the landed property and estate of late Nwaemere Aduba.
2. I hereby declare that the purported sharing or partitioning of the landed property and estate of Nwaemere Aduba by the
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defendants themselves, in exclusion of the Plaintiff, is discriminatory, null and void and therefore of no effect.
3. I hereby declare the Plaintiff is entitled to the grant of Customary Right of Occupancy of all that piece or parcel of land known as and called ORU APU now called EZI TITUS ADUDA together with the 7 (seven) room building thereon and its appurtenances, situate and lying at Ezialakohu Nguru in Aboh Mbaise Local Government Area, within jurisdiction.
4. The Defendants jointly and severally are hereby restrained from discriminating against the Plaintiff and members of his family in the affairs of late Nwaemere Aduba family.
5. The Defendants, their agents, privies and workmen are hereby perpetually restrained from further trespass to the said land mentioned above. Pages 342 – 343 of the Records.
That is the Judgment Appellants appealed against, as per their Amended Notice of Appeal, filed on 17/6/14, with the leave of this Court. Appellants filed Amended Brief of Argument on 30/1/2018, which was deemed duly filed on 28/3/2018. They also filed a Reply brief on 24/3/17, on being
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served with the Respondents brief, filed on 14/2/17, with the leave of Court.
Appellants donated 4 Issues for the determination of the Appeal, as follows:
1. Whether there was an adoption of the Respondent and whether Exhibit F qualifies as evidence of adoption as to entitle the Respondent to inherit the estate of late Aduba Ohagwam Nwaemere (Grounds 1, 2 & 5).
2. Whether the building and land in dispute is the family property of Aduba Ohagwam Nwaemere. (Grounds 3, 4 and 6).
3. Whether a name confers membership status to a person (Ground 1).
4. Whether the judgment is against the weight of evidence. (Ground 7)
The Respondent, on his part, raised two Issues for the determination of the appeal, namely:
1. Whether the Learned trial High Court was right in the circumstances of this case, when the Court held that the Respondent is an adopted son of Aduba Ohagwam Nwaemere and Felicia Nwugo Aduba and is entitled to share in the landed property and estate of Aduba Ohagwam Nwaemere. (Grounds 1 and 2)
2. Whether the Learned trial High Court was correct when she held that the land and the building therein in
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dispute belonged to Comfort Aduba (PW2) and not Aduba Ohagwam Nwaemere (Grounds 3 and 6).
The Respondent had raised a preliminary objection in the brief he filed against the Appellants Issue 4 (meant to say Issue 3) whether a name confers a family membership status on a person; saying that the issue did not flow from any of the grounds of Appeal. The Respondent did not, however call this Courts attention to the above objection at the hearing of the appeal on 26/9/18.
It should, however, be noted that, Appellant had distilled their Issue one from grounds 1, 2 and 5 of the Grounds of the Appeal, and thereafter, distilled the Issue 3 (which the Respondent attacked, mistaking it for Issue 4) from the same ground one of the appeal. Appellants cannot do that, as it would amount to proliferation of issues. Having earlier used the ground one, together with grounds 2 and 5, to distill the issue one, the said ground one was no longer available to donate another issue for the determination of the appeal. See Onyerika Vs Uzoukwu (2016) LPELR – 40212 CA:
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We have held repeatedly, that a ground of appeal cannot be split to generate issues for determination, and that, once an issue has been distilled from a given ground of appeal, the said ground of appeal is no longer available to give birth to another issue for determination, either alone or in conjunction with other grounds of appeal. Where a ground of appeal has been used to formulate an issue for determination, using it again to formulate another issue will corrupt that other issue for determination and render it incompetent. See the cases of Afribank Nig. Plc Vs Yelwa (2011) 12 NWLR (Pt.1261) 286; Egbe Vs Alhaji (1990) 1 NWLR (Pt.128) 546; Agbetoba Vs Lagos State Executive Council (1991) 4 NWLR (Pt.185) 664; Egbebu Vs I.G.P. & Ors (2016) LPELR-40224 (CA).
Appellants Issue 3 is therefore, hereby struck out for incompetence.
Arguing the Issue 1, Appellants Counsel, Chief F.O. Onyebueke, urged us to answer it in the negative; that there was no adoption of the Respondent by the late Aduba Ohagwam Nwaemere to entitle him (Respondent) to share in the estate of late Aduba Ohagwam Nwaemere. Counsel argued that the Respondent had pleaded adoption in his pleadings, but in evidence, which
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includes Exhibit F, the Respondent gave evidence of a foster child; he said that it is not open for a party to set up a different case from his pleadings, as any such evidence goes to no issue. Counsel relied on the case of Onamade Vs ACB Ltd (1997) 46 LRCN 91 at 119. Counsel said a party should be consistent in his case; that in this case the Respondent should have either maintained the issue of adoption, which he pleaded, or the issue of foster child which he gave evidence on; he said that the two were very distinct. He relied on the Osborns Concise Law Dictionary, 9th Edition, for the definition of adoption:
Adoption is effected by a Court order which vests parental responsibility for a child in the adoptor and extinguishes the parental responsibility of the birth parents.
Counsel said adoption process is statutory, as shown in adoption Law of Eastern Nigeria No.12 of 1965, incorporated in Chapter 6 Section 3(1) (2) (3) Laws of Imo State, which has two requirements for a valid adoption, namely:
1. An adoption made in a prescribed manner for an adoption
2. An Order authorizing the applicant to adopt a juvenile.
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Counsel said there was no compliance with the appropriate law in respect of the alleged adoption of the Respondent, as the Respondent did not prove any such compliance with adoption procedure. He relied on Olaiya Vs Olaiya (2002) 8 NWLR (Pt. 782) 652 at 671:
Proof of adoption is essential for the adoptor and the adopted person or any other person for the purpose of devolution of property on the intestacy.
Counsel said the trial Court was therefore, wrong to hold that the challenge of adoption ought to have been when the alleged adopters were alive; he said the demise of the adopters did not stop the adopted person to prove the process of adoption. He urged us to give effect to the statutory provisions for adoption, saying that it is not the function of the Court to yield to sentiment of sympathy in the interpretation of statute merely, because the language of the statute is harsh or will cause hardship. He relied on the case of KRAUS THOMPSON ORGANISATION VS NATIONAL INSTITUTE FOR POLICY STRATEGIC STUDIES (2004) ALL FWLR (Pt. 218) 797 at 809.
Counsel added that the fact that Respondent had grown into adulthood, got married, with
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children, before his membership of Aduba family was challenged, could not be a barrier to challenging his adoption as a member of the family. He added that Respondents reliance on Exhibit F was of no moment, because Appellants had challenged the authenticity of the document; that it was an issue that the Respondent did not call the maker or any person from the Ministry, to give evidence in support of the document; he said that Exhibit F, therefore, had no weight. He relied on Chitex Ind. Ltd Vs O.B.I. Nig. Ltd (2005) 14 NWLR (Pt. 945) 392 at 399.
Counsel asserted that there was no evidence to support the case of adoption. He relied on Jolayemi & Ors Vs Alhaji Alaoye & Ors (2004) ALL FWLR (Pt. 217) 584 at 603, and affirmed that Exhibit F was talking about Foster Agreement, and the names of Nwaemere Aduba and Felicia Aduba were referred therein, as foster father and foster mother, respectively, and the name of the Respondent was Anyanwu Titus Uchendu; he argued that from Exhibit F, the origin of the Respondent was not in doubt as he was already born into a family. Counsel stated, again, that a foster child is different from an adopted child.
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He relied on Osborn Concise Dictionary, 9th Edition, which defines FOSTERING, as:
Looking after the child that is not your own nor a relative, nor one of whom you have parental responsibility, for more than 28 days.
He also relied on Blacks Law Dictionary 6th Edition which defines FOSTER CHILD, as:
Child whose care, comfort, education and upbringing has been left to persons other than his natural parents.
Counsel said the Respondent, perfectly, fits into the above definition, because:
1. Exhibit F is an agreement on foster child
2. The child already had a name Anyanwu Titus Uchendu born into another family
3. Both Aduba Nwaemere and Felicia Aduba were not Respondents natural parents, but looked after him, and
4. The conditionalities contained in the Exhibit F speak for themselves, as there is no doubt that the Respondent was a foster child and there was no evidence before the Court that fostering later ripen into an adoption.
Counsel argued that the fact that the Respondent answered the family name Aduba did not make him a member of the family, because no
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of person has a monopoly of name. He cited the case Ofoboche Vs Ofoboche (but supplied non particulars). He added that all the principal members of the immediate family of Aduba Ohagwam Nwaemere confirmed that the Respondent was not the son of Aduba Nwaemere; that by their custom, the Respondent was not entitled to inherit the property of Aduba Ohagwam Nwaemere, as the Respondent had admitted, under cross examination that:
It is correct that the Estate of a deceased man in Ezialakohu Nguru in Aboh Mbaise, including the landed property are inherited by the biological male children of the deceased man. Page 48 of the Records.
Counsel said that was an admission against interest. Thus, the Respondent had no locus standi to challenge the Appellants in the sharing of their father’s Estate. He relied on Josiah Kayode Owodunni Vs Registered Trustees of CCC 7 Ors (2000) 6 SC (Pt. 111) 60 at 73.
Finally, Counsel submitted the Appellants position that their father did not recognize the Respondent as his son during his life time for the following reasons:
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1. He trained all the male children to University;
2. Gave all of them land to build but did not do same to the Respondent.
On Issue 2, whether the land and building in dispute is a family property of Aduba Ohagwam Nwaemere, Counsel answered in the affirmative. He said that evidence clearly showed that all the family members of Aduba Ohagwam Nwaemere lived in that building; Aduba Nwaemere buried his sister in the said land and when he died, he was buried in the said land; that even his wives were also buried on their husbands land; that the 3rd Appellant erected musselum where the father was buried on the land in dispute. Appellants argued that it was wrong for Respondent to claim that land was that of PW2 of which (he Respondent) had possession of; that PW2 was wrong to portray the father (of Appellants) as a poor man, when she said that the father was an average man that could feed his children and was not rich.
Appellants Counsel said there was evidence, from both sides, that their parents lived in the building and land in dispute, before the Appellants built their individual houses and left the Respondent behind there. Therefore, it was the duty of the Respondent to prove exclusive right over the
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land as they all occupied the building as family house. He relied on Oba Samuel Adenle Vs Oyenbade (1967) NMLR 136 at 139; Meka and Ors Vs Aniafulu (2006) ALL FWLR (Pt. 309) at 1472. He said that the Respondent failed to establish exclusive right over the land and rather relied on Exhibits A and B, which Counsel said, had no evidential value.
On Issue 4, on the weight of evidence, Appellants Counsel said that the evidence of the Appellants were more credible and believable than that of the Respondent; that the trial Court should have held for them and dismiss the claim of the Plaintiff. Counsel urged us to re-evaluate the evidence and come to that conclusion. He added that there was no reason for adoption of the Respondent, as Appellants father already had five sons; that there was no single witness from the kindred of the parties, who testified for the Respondent, except PW4, who had an axe to grind, because of the loan he obtained from their late father!
He urged us to resolve the Issues for the Appellants and allow the appeal.
The Respondents Counsel,Chief I.M. Kadurumba, arguing the 1st Issue, said the trial Court was
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right to hold that the Respondent was an adopted son of Aduba Ohagwam Nwaemere and Felicia Nwugo Aduba and was entitled to share in the estate Aduba Ohagwam Nwaemere.
Counsel said that in his evidence, the Respondent had stated that he was adopted son of Aduba Ohagwam Nwaemere and Felicia Nwugo Aduba; that he was received or collected from the Ministry of Health and Social Welfare East Central State in 1972, by virtue of Exhibit F, tendered by the PW3; he was a 5 year old infant, at the time; that in Exhibit F, both Aduba Ohagwam Nwaemere and Felicia Nwugo Aduba undertook to bring up and train the Respondent, as they would, a child of their own.
Counsel said that Appellants contention, that the Respondent pleaded adoption, but led evidence on foster child/care, was totally misconceived, as the Plaintiff (Respondent) did not lead evidence of foster care; Counsel said that Exhibit F, which was given to PW3 by her parents, was tendered by the PW3, to show how Aduba Ohagwam Nwaemere and his wife, Felicia, received the Respondent from the Ministry of Health and Social Welfare, East Central State, at the age of 5 years. Counsel said the Exhibit F
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was a public document tendered in the original copy and so did not require to call the maker.
Counsel submitted that it would be repugnant to justice, equity and good conscience, to say that the Respondent, who had been completely assimilated into Aduba Ohagwam family, from the age of 5 years, was not a member of the family of Aduba Ohagwam Nwaemere, because he was not adopted in accordance with the adoption law of Eastern Nigeria, applicable to Imo State. Counsel wondered whether a Court of justice or equity would say or hold that, because there was no adoption register or judicial act, that there was no adoption! He submitted that if the adoption was not statutory, it was equitable, and that by law, equity regards that which ought to have been done as having been done. He relied on Re R Vs Vender Well Trust No. 2, 1974 CA 295 at 322, cited with approval in the case of Owerri Municipal Council Vs Onuoha (2010) NWLR (Pt. 538) 896:
Every unjust decision is a reproach to the law or the judge who administers it. If the law should be in danger of doing injustice then equity should be called in to remedy it. Equity was introduced to remedy the rigors of law.
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Counsel distinguished the case of Olaiya Vs Olaiya (Supra) from this Suit, saying that the case of Olaiya was based on legal adoption or statutory adoption, but the lady did not tender the adoption Register, as required under the Lagos Adoption Law, nor did she give satisfactory evidence of adoption. In the instant case, Counsel said the Exhibit F showed clearly that the Respondent was taken from the Ministry of Health and Social Welfare, at the age 5 years, and he grew up and got married, with children in the home of Aduba and Felicia Nwugo, and he was never challenged, while bearing the name of Aduba as surname, until after the death of Aduba and Felicia his wife. Counsel said it was obvious that Aduba Ohagwam Nwaemere and Felicia his wife, the way the treated the Respondent, had intended that the Respondent be adopted and was adopted as their son, and this was without any challenge by the Appellants and their mother; that because Appellants had condoned the Respondent as a member of Aduba family, they were estopped from challenging his said status now; that as the trial Court held, it will be inequitable and
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unconscionable to now say that the Plaintiff is not their adopted son.
Counsel said the Respondent had known the Aduba family as his family, where he grew up from the age of 5, having been adopted as part of the family, without his will, trained and cared for, and wherein he married and raised seven children; that it will, indeed, be inequitable to throw him, his wife and children, away from the very family they grew up to know as theirs! That as a citizen of Federal Republic of Nigeria, the Respondent cannot be discriminated against, because of the circumstances of his birth, in the affairs of Aduba Ohagwam Nwaemere family. He relied on Section 42(2) of the 1999 Constitution, as amended. Counsel also referred us to the evidence of PW2 and PW3, on how their parents (Aduba’s) acknowledged, accepted, regarded and treated the Respondent as their son, and how both of them (PW2 and PW3) were and are still treating the Respondent as their brother!
On Issue 2, whether the trial Court was correct, when it held that the building and land in dispute belonged to PW2, Counsel answered in the affirmative. Counsel said evidence had been led on how PW2
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purchased the land in dispute from DW1, through her father, who then resided at home; that at the time PW2 purchased the land in dispute, she was working with the University of Nigeria Teaching Hospital Enugu (UNTH); that Exhibit A (tendered by PW2) was the receipt she obtained for the purchase of the land, given to her though her father, Aduba Ohagwam Nwaemere; that she purchased the land from DW1. Counsel said that the evidence of PW1 and PW2 support the Exhibit A, and that both PW3 and PW4, corroborated the evidence of PW2. Counsel added that DW1 and DW3 had admitted that their father bought the land from DW1, but contradicted themselves on the issue of the cost price and the witnesses to the sale.
Counsel said the trial Court was, therefore, perfectly right when it held that the DW1 was not a witness of truth, when he (DW1) denied knowledge of Exhibit A, and contradicted DW3 who admitted that the transaction was witnessed by people. Counsel said Exhibit A was evidence of receipt for payment over the customary transaction sale of land, and so was not a registrable instrument. Counsel also called our attention to the evidence of PW1, PW2, PW3
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and PW4, on how PW2 built the her house, through her father; Counsel said that PW3 and PW4 (the traditional Ruler) gave evidence to the effect that PW2 owned both the house and the land, and referred us to the Exhibit B the building plan.
Counsel also said that there was evidence that the Appellants had all built their individual houses and left the building built by the PW2, which all the family members lived in; that it was only the Respondent and his family that now live in the house/land; that even the PW2, who is the owner of the land/house, is not challenging the possession of the Respondent; that under cross examination, PW2 told the Court that she was not opposed to the Court granting the Respondent Customary right of occupancy over the land. Counsel said possession is 9/10 (nineteenth) of the law; that he who is in possession, is deemed to be the owner, until the contrary is established; that Respondent, having proved possession, and the PW2, the owner, not opposing the Respondents claim, the trial Court was in order to have granted the Respondent customary right of occupancy over the property.
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He relied on the case of Oyadare Vs Keji (2005) ALL FWLR (Pt. 247) 1583 to say that exclusive possession of land gives the person in such possession the right to retain it and to undisturbed enjoyment of it against all, except the person who can establish a better title. He urged us to resolve the Issues for the Respondent and to dismiss the appeal.
RESOLUTION OF THE ISSUES
In their reply brief, Appellants raised issues again about the Exhibit F, that the Respondent had relied on it to say that he was adopted, whereas the Exhibit F, was titled, FOSTER CHILD AGREEMENT, not Adoption; that the Respondent was not consistent; that the Courts are not allowed to read extraneous meaning into a document.
I think Appellants, by the above further arguments, merely tried to re-open their arguments and/or to better the earlier arguments in their main brief. That is not what a Reply brief is meant to achieve. A Reply Brief is meant to explain or contest fresh issue of law raised in the Respondents brief, which was not canvassed in/by the Appellants Brief. See Ojiogu Vs Ojiogu & Anor (2010) LPELR 2377 (SC); Iheka Vs Njoku (2017) LPELR 42002 CA;
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Akayepe & Anor Vs Akayepe (2009) LPELR 326 SC. In Ecobank Plc Vs Honeywell Flour Mills Plc (2018) LPELR 45124 (SC), it was held:
I need to emphasize that the function of a Reply Brief is to answer the arguments in the Respondents brief which were not taken in the Appellants brief. It is not meant to be a repetition of the arguments in the Appellants brief. It is not an opportunity to re-emphasize the arguments in the Appellants brief. Per Okoro JSC
I think the two Issues distilled by the Respondent are more apt for the determination of this appeal; Appellants Issues 1 and 2 are in substance, in tandem with the two Issues by the Respondent, except for semantics. And Appellants last issue is on evaluation of evidence.
I shall therefore determine the appeal on the two Issues, as modified, hereunder:
1. Was the trial Court right when it held that the Respondent was an adopted son of Aduba Ohagwam Nwaemere and Felicia Nwugo Aduba, to entitle him to share in the landed property and estate of Aduba Ohagwam Nwaemere, given the evidence and the circumstances of this case?
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2. In respect of the very land in dispute, was the trial Court right to hold that the land and the building therein belonged to the PW2, Comfort Aduba (not Aduba Ohagwam Nwaemere) and to grant the Respondent customary right of occupancy thereof, upon proof of exclusive possession, with the consent of PW2?
The facts of this case show that the Respondent was received and accepted by the parents of the Appellants in 1972, when the Respondent was only five years old, from the Ministry of Health and Social Welfare. Exhibit F is the document showing where, when and how the Respondent became a member of the family of Aduba Ohagwam Nwaemere and Felicia Nwugo Aduba. Aduba Ohagwam Nwaemere married two wives, Felicia Nwugo Aduba and Ihuoma Aduba; Felicia Nwugo Aduba was the first wife. She had a son for Aduba, but the son died at young age. She also had female children. The second wife, Ihuoma, had many male children, including the Appellants.
After the death of the only male child of Felicia for her husband, the two opted for adoption of the Respondent at the Ministry of Health and Social Welfare, East Central State, in 1972, as shown in Exhibit F.
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The Respondent adopted or was given the name of the family (Aduba) and was absorbed and treated as a child of the family, trained and nurtured by Aduba and Felicia as their son. He grew up with the other children, including Appellants,into adult-hood, married in 1990 and begot children of his. Nobody challenged his status as a member of the family, while the parents were alive.
After the death of Aduba Ohagwam Nwaemere and his wife, Felicia Aduba, the Appellants came up with the idea that the Respondent was not a member of late Aduba Nwaemere family. The 3rd Appellant in particular alleged that the Respondent was a stolen child brought into the family by PW2, Comfort Aduba, and he wrote a petition to the Police. They excluded him (Respondent) in the share of the estate of their father Aduba Ohagwam Nwaemere. Hence, this Suit by the Respondent to challenge the Appellants.
Of course, the trial Court had resolved that the Respondent was adopted child of Aduba Ohagwam Nwaemere and his wife, Felicia; that the Constitution of the Federal Republic of Nigeria 1999, Section 42 (2) thereof, applied, to protect the Respondents right against discrimination and
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so he was entitled to share in the landed property and estate of Aduba Ohagwam Nwaemere, as his adopted son. It also granted him customary right of occupancy over the particular land in dispute. Appellant had quarreled with that decision.
Appellants had picked fault with the Exhibit F, saying that the same was not an adoption document, but one to foster the Respondent; that even that document was of no moment as the maker of the document was not called to give evidence and so was wrongly admitted in evidence and/or was of light weight!
Counsel for Appellants struggled to differentiate adoption of a child from fostering a child, saying that the rights that accrue to adopted child do not flow to a child who is only fostered. He argued strongly, that a party must be consistent in the presentation of his case, and cannot plead facts of adoption but leads evidence of fostering, to prove his case.
I think this case is at the root of National Public Policy and constitutional rights of persons/citizens in our jurisprudence. Where a child, taken from an orphanage or Social Welfare Department, is adopted or received and integrated into a family setting
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and given a name or allowed the name of the family of the adoptor(s), or person who shows love and benevolence to the unfortunate child, he should not and cannot be left at the vice or mercy of the other children/relations of the adoptor(s), be they biological children or other beneficiaries of the estate of the adoptor(s).It would be wrong, in my view, to remind and play back the sad and ugly circumstances of the childs birth, taunt, mock and discriminate against him, and subject him to ridicule, just because somebody wants to deny him the benefit(s) of the estate of his adoptor.
And whether the word adoption of a child, is used in the strict, legal and statutory sense, or loosely, I think, once it is shown that the child was intentionally accepted and integrated into the family, and made to feel a sense of belonging by the adopting parent(s) or person(s), nobody should or can rise up to question the good gesture of the adopting parent(s) or person(s), and deny the child (now grown adult) share in the covering, gains, benefits or liabilities, accruing from the common patrimony or estate of the adoptor(s) or person(s), who adopted the child.<br< p=””>
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To that extent, I do not think the Appellants would have the vires to reject the Respondent and strip him of the covering, protection and legacy which their parent(s) bestowed or transferred to the Respondent, by reason of his acceptance, adoption, training and nurturing as a son of the family. Appellants, in my opinion, lacked the Power to overrule their father, in death. Of course, part of the legacies which the Respondent got from Aduba Ohagwam Nwaemere and Felicia Aduba was the family name Aduba which they donated to the Respondent, and which stuck to him, right from when he was 5 years old, and now gives him and his wife and children, identity. That, to me, is part of the benefits of the estate of a parent to children, being their family identity. It does not lie in the other children (Appellants) to deny the Respondent that identity, or to strip him of the name given to him by their father.
I think the learned Senior Counsel for the Appellants, Chief F.O. Onyebueke, was merely trying to split hair, when he argued (beautifully though) that Exhibit F was not a document of adoption, but of fostering of the Respondent, just because it was titled FOSTER CARE AGREEMENT FORM.
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The text of the Exhibit F was reproduced on page 125 of the Records of Appeal, as follows:
East Central State Government
Ministry of Health and Social Welfare
Foster Care Agreement Form
We, Nwaemere Aduba (name of Foster father) and Aduba Felicia (Name of Foster mother) of Umumbian Eziala, P.O. Box 24, Eziala Nguru Mbaise, Owerri (Address and Division) having on the day of 197 received from the Ministry of Health and Social Welfare of the East Central State Government: a MALE (sex) child of five (age) years, named ANYANWU TITUS UCHENDU, Reg. No. 2/53/108 into our home as a member of our family.
UNDER TAKE THAT
1. We will care for Anyanwu Titus Uchendu and bring him up as we would a child of our own;
2. We will look after his health and consult a medical authority whenever he is ill and allow him to be medically examined at such times and places as the Ministry may require. We will obtain the written consent of the Chief Social Welfare Officer before any operative treatment or, in case of emergency the consent of a local representative of the Social Welfare Division;
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3. We will ensure that he attends School regularly during the years of school age;
4. We will encourage him in religious practice;
5. We will inform the Ministry immediately of any serious occurrence affecting the child;
6. We will at all times permit any person so authorized by the Ministry to see the child and to visit inside our home;
7. We will allow him to be removed from our home when so required by a person authorized by the Ministry;
8. If we decide to move our home, we will notify the Ministry of our new address before leaving our present home.
The document was thumb printed by the said Aduba Nwaemere and Felicia Aduba. It was endorsed by the Senior Social Worker, I.G. Nwosu, on behalf of the Ministry of Health and Social Welfare. It was dated 10th October, 1972.
The above document clearly shows that, though the agreement was carried in FOSTER AGREEMENT FORM, by the averments/undertaking therein, it was meant to integrate the young child into a home as a member of a family, and his adoptors, as foster parents, had received him into their home, as a
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member of their family. They had undertaken to bring him up as they would a child of their own, look after his health, welfare, training/education as well as religious upbringing, properly.
Exhibit F was a Public document, issued to Aduba Nwaemere and Felicia Aduba at the time of receiving the Respondent at age 5 from the Ministry of Health and Social Welfare of East Central State. It was tendered in its original copy and properly admitted. It did not require the maker of the document to tender it, to be valid. I believe, despite being called foster parents, in the Exhibit F, Mr. & Mrs Aduba Nwaemere took it as official document authorizing them to adopt and take the little Anyanwu Titus Uchendu (Respondent) as he then was, from homelessness, and receive him into a Home, make him their child and member of their family. And to their credit, they kept their promise, gave the child their family name, nurtured and took care of him, educated and integrated him with the rest of their biological children and the Respondent grew up into adulthood and took a wife in 1990, and is himself now a father of children!
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If there was any short coming in the Exhibit F, that made it to fail to comply with the adoption laws of Eastern Nigeria, as alleged by the Appellants, that cannot, in my opinion, be the fault of the Respondent or his adoptors, Aduba and his wife, and would not discount from the presumption of its regularity as official Government instrument, authorizing the acceptance and adoption of the Respondent into the home of Mr. & Mrs. Aduba Nwaemere as a member of their family. In the eye of the law, the presumption of regularity of official act remains strong (See section 168 of the Evidence Act 2011), and so is Exhibit F presumed in favour of the Respondent. Again, equity looks as done, that which ought to be done.
In the case of Onyia Vs Oniah (1989) 2 SCNJ 120 at 134, it was held that all Courts of law and equity are the keepers of the conscience of the society and will prevent any person or authority from acting against the dictates of conscience. See also Gadzama & Anor Vs Adamu & Ors (2014) LPELR 24363 CA; Amaechi Vs INEC & Ors (2008) 2 FWLR (Pt. 414) 1443; (2007) 18 NWLR (Pt. 1065) 172; (2008) LPELR 446 (SC).
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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. Their father died on 29/1/2000, and Felicia Aduba died earlier, on 29/12/1999. Appellants started their discriminating conduct against the Respondent in January 2002, when they met to share the family property, without the Respondent and to his exclusion. (See paragraphs 10 to 12 of the Statement of Claim of the Respondent and paragraphs 13 to 15 of the Statement of Defence, Pages 16 – 17 and 25 – 26 of the Records).
Appellants had relied on their customs, to say that only biological sons of a family can inherit their fathers 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: No matter the circumstances of the birth of a Female child, such a child is entitled to an inheritance from her father’s estate. Consequently, the Igbo customary law which disentitles a female child from partaking in the
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sharing of her deceased father’s estate is in breach of Section 42(1) (2) of the Constitution, a fundamental rights provision guaranteed to every Nigerian
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 the property of a grandmother or mother.
Of course, apart from the Respondent, who asserted the fact of his adoption by Aduba Ohagwam Nwaemere and his wife, Felicia, his sisters (who are/were also sisters of the Appellants) PW2 and PW3, as well as the traditional ruler of their Community, PW4, all gave evidence that the Respondent was an adopted child/son of the family of Aduba, and accepted member of the Aduba family. They (PW2 and PW3) gave evidence of how their parents acknowledged, accepted, regarded and treated the Respondent as their son; that they themselves, accepted and treated the Respondent as their brother, even up to date!
Appellants had placed reliance on the case of Olaiya Vs Olaiya (2002) 8 NWLR (Pt. 782) 652 to say that the Respondent did not prove that the
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adoption complied with the law. I rather think the case of Olaiya Vs Olaiya (Supra) supported the case of the Respondent, as the Exhibit F, produced in the case had indicated the registration number of the little boy (Respondent) at the Ministry of Health and Social Welfare of East Central State, Owerri, as No. 2/53/108. That, in my view, was a trace to the official Register of the homeless children custodied by the Ministry of Health and Social Welfare, and the Exhibit F was a proof that the Respondent was lawfully and officially given to the Adubas, for adoption, though the Form filled was titled Foster Care Agreement Form.
The Blacks law Dictionary, 8th Edition page 52 talks about adoption by estoppel, which it defines as:
An equitable adoption of a child by one who promises or acts in a way that precludes the person and his or her estate from denying adopted status to the child; an equitable decree of adoption treating as done that which ought to have been done. Such a decree is entered when no final decree of adoption has already been obtained, even though the principal has acted as if an adoption has been achieved.
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I think that (above) is what happened in the instant case, and the Appellants are estopped from denying the Respondent adoption status. That must have guided the reasoning of the trial Court, when it said:
From the treatment and acceptance of the Plaintiff, by Auba Ohagwam Nwaemere and his wife Felicia Nwugo Aduba, it is evident that it was their intention to have the plaintiff as their adopted son. In the circumstance of this case, I hold that it will be inequitable and unconscionable to now say that Plaintiff is not their adopted child. I must observe that the 3rd defendant, DW3 admitted, under cross examination, that it was after the death of Aduba Ohagwam Nwaemere and his wife Felicia Nwugo Aduba that he wrote the petition to the Police alleging that the Plaintiff is a stolen child, stolen by his half sister Miss Comfort Aduba. The 3rd Defendant and the Defendants, throughout the life time of their father, never challenged the presence of the Plaintiff in their family and the fact that the Plaintiff bears the surname Aduba simply shows that the defendants were fully aware that
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their father, Aduba Ohagwam Nwaemere, regarded the Plaintiff as his adopted son I hold that the Plaintiff is the adopted son of Aduba Ohoagwam Nwaemere; that equity regards as done that which ought to be done. See pages 337 – 338 of the Records of Appeal.
The above reasoning, in my view, is sound, and it has not been challenged in this appeal. It can therefore not be faulted. The law is that a finding or holding of a Court, not appealed against or challenged, remains binding and conclusive. Nmanumeihe Vs Njemanze (2016) LPELR 40212 (CA); Ebemighe Vs Chi (2011) 2 NWLR (Pt. 1230) 65; Amoshima Vs State (2011) 14 NWLR (Pt.1268) 530; CPC Vs INEC (2011) 18 NWLR (Pt.1279) 493.
I resolve the Issue 1 against the Appellants.
Issue 2, touches on the family house the Respondent occupies with his family, which used to be the home of all the Adubas, until the Appellants built their individual houses and moved out of the property. The Respondent had sought and was granted customary right of occupancy thereof, being in exclusive possession of the land and house.
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Evidence disclosed that PW2, Comfort Aduba, was the owner of the land and building, having acquired the land from the DW1, through their father, Aduba Ohagwam Nwaemere (whom she gave the money to pay to DW1). Evidence also showed that she (PW2) built her house on the land, making it a home for her parents and brothers. Exhibit A shows a receipt of the Sum of N200.00 from PW2 by the DW1 for the lease of the land for 99 years. The transaction was witnessed by many people, including Charles Aduba (3rd Appellant) and Felicia Aduba (mother of PW2). As part of the receipt, it was stated:
Miss Aduba (Comfort) is free to make use of this land extended to her entire family or to those whom she can empower to do so. (See page 98 of the Records).
DW1 admitted the transaction in the Exhibit A, which he said took place in 1975 (See page 205 of the Records), but maintained that he sold it to his father, Aduba.
PW2 in her evidence, under cross-examination, said she was working as a clerical staff in 1973 at the University of Nsuka Teaching Hospital, Enugu. She tendered Exhibit B as the building plan. She said:
Yes, my father was living in a mud house inside his family compound before I bought my
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land outside the family compound and at Oru Apu Nwaotikpko, where I built my own house; my father built his house after the Nigerian Civil War The land was not in dispute then that I own it. It was after my fathers death that Charles Aduba started saying that it is my fathers house. I was very dear to my father My father called a meeting when he was alive and let it be known publicly, that the house belongs to me. My father was living in my said house with my mother before his death and was buried there after his death See pages 82 – 84 of the Records.
On a question that her father gave the other male children (Appellants) places to build their houses, but did not give the Respondent, because the father did not recognize him as a son, the PW2 said:
That is not true. The Plaintiff is a member of our family. My father gave me all the documents in respect of his property and they were contained in a bag before he died. I was the one with him before he died. I had to give the bag to my half brother, Anthony Aduba, after my father gave it to me because I am a woman. The Defendants did not
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care for my father during his life time. Having giving (sic) Anthony Aduba the bag of documents, maybe he has now shared the property among himself and his brothers. My father did not give my said brothers any land or property before his death Yes they had erected their own houses, except Charles, who finished his own 3 years ago, because my father told them to erect their own houses, because the house we were living in was my house. When the Defendants finished their house, they moved out of my house where we were all living with their mother, that is, they moved out with their mother to their own house.
Yes, my father had many land and when they wanted to build their own house my father gave them land. Titus was a small boy then. If Titus (Plaintiff) was ready to build a house of his own, my father would also have given land himself when my father was a life, but Titus was a small boy then. Pages 85 – 86 of the Records.
PW2 also said, on page 86, of the Records that the Plaintiff was entitled to all the reliefs he sought, in the Suit. That means, the PW2, who was adjudged the owner of the land and building, did
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not oppose the grant of the Customary right of occupancy to the Respondent, over the property. The trial Court had believed the evidence of PW2, who was heavily corroborated by the PW3 and PW4, and I think, the type of PW2 is rare to find, and she should be high commended.
The trial Court had held:
It is in evidence and not in dispute that the Plaintiff is the one now in possession of the land and house in dispute. The DW3 (the 3rd Defendant) and the Defendants witnesses, DW1 and DW2, admitted, under cross-examination, that the Plaintiff and members of his family are the only persons living in the said house; that the defendants packed out of the house with their mother during the life time of their father when the defendants completed their own house It is observed that the PW2, Miss Comfort Aduba, who the Plaintiff states purchased the land and erected the house thereon is not opposed to the grant of right of occupancy in the land in dispute to the Plaintiff, her brother. (Page 340 of the Records).
I cannot fault that sound reasoning of the learned trial Judge, as I uphold the same, and hold that the
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Respondent was entitled to the grant of customary right of occupancy. I therefore resolve this Issue against the Appellants and hold that the appeal is completely devoid of merit. It is accordingly dismissed.
Appellants shall pay the cost of this Appeal assessed at Fifty Thousand Naira (N50,000.00), to the Respondent.
Other Citations: (2008)LCN/2934(CA)
