Arnold Nwafia V Nwanakuo Ububa (1966)

LawGlobal-Hub Lead Judgment Report

IDIGBE, J.S.C. 

This is an appeal from a judgment of the High Court of Eastern Nigeria by which the plaintiff respondent was given the right to possession and occupation of a family house together with its surrounding premises. The penultimate portion of the judgment reads-

“.. Having considered the evidence before me carefully I am satisfied and I find as a fact that the plaintiff is the first son or the Okpala of Aguba and not Nwafia and that the plaintiff is in possession and occupation of the OBU and the MBALA OBU as of right i.e., by virtue of his being the first son or Okpala of Aguba. The plaintiff is therefore entitled to judgment. I therefore grant a declaration that in accordance to (read ‘with’) the native law and custom the plaintiff is entitled to occupy and possess both the OBU and the MBALA OBU I also grant the plaintiff injunction ” (brackets supplied).

In this case the respondent claims that he is, in accordance with native law and custom, entitled to occupy and possess the house known as UNO OBU and the surrounding premises called ILO OBU; and he also asks for injunction restraining the appellant from interfering with his (respondent’s) possession of the land and surrounding premises.

Substantially the facts in this case are not in dispute. Both parties agree that their ancestor ‘DUNU’ was the original owner of the house in dispute (OBU) and the surrounding premises (ILO-OBU or MBALA-OBU); that Dunu had two sons Nweke and Ububa, the elder, through whom parties in this case descend. It is also admitted that Ububa had four sons-(1) Aguba (2) Dike (3) Nwokoye and (4) Enyi-by IGBO OBELE, one of his two wives. Parties agree also that Nwafia, the grandfather of the appellant, was the son of ONU, the other wife of Ububa, and that Nwafia was born after Ububa died; but they are not in agreement on the issue of Nwafia’s paternity. This really is the cause of the present dispute. The appellant contends that Nwafia was the son of Aguba. According to him, after the death of Ububa, Aguba marred Onu by whom he got Nwafia. Appellant admits that the respondent is a son of Aguba but he maintains that Nwafia was the elder. The respondent, however, denies that Nwafia was a son of Aguba and maintains that he was a posthumous child of Ububa. It is however agreed by both parties that in accordance with the custom of their people of Enugu-UKWU, the right to possession and occupation of the OBU and ILO OBU is in the OKPALA of DUNU family; and they are also agreed that this issue (i.e., the issue of the Okpala of the Dunu family) must be traced through the male line of descent of the first son of Dunu.

Having heard all the witnesses the learned trial judge held in the passage set out earlier on, that he was satisfied that the respondent is the first son of Aguba and he found against the contention of the appellant.

The main complaint in this appeal is contained in the principal ground of appeal, and it is, that the learned trial judge had no jurisdiction to determine the claim before him, since, as it is contended by the appellant, the determination of the status of the respondent in the Dunu family was a condition precedent to the determination of the claim; the High Court it is further contended has no original jurisdiction to determine an issue relating to family status. In support of his contention the appellant relies on section 14 (formerly section 13) of the High Court Law (Eastern Nigeria) Cap. 61 vol. 41963 Edition of Laws of Eastern Nigeria, which reads-

“Except in so far as the Governor may by order otherwise direct and except in suits transferred to the High Court under the provisions of the Native Courts Ordinance or the Customary Courts Law” [1956] “the Court shall not exercise original jurisdiction in any cause or matter which is subject to the jurisdiction of a Native Court or Customary Court relating to marriage, family status, the guardianship of children or the inheritance or disposition of property on death.”

It is fair to mention at this stage that the same objection was taken in limine by the appellant in the lower court which ruled against the objection. In its ruling the court observed-

“In my view the first question I have to ask myself is whether the issue as to who is the Okpala or the first son of the plaintiffs father is the cause or matter before this court In my view the cause before me is declaration that the plaintiff is entitled to possession of the Obu and the Ilo Obu according to the Native law and custom of parties.

It would be a different thing if the section 13 had included the words ‘which raises an issue’ between the words ‘in any cause or matter’ and the words ‘relating’; because the declaration which is sought by the plaintiff raises an issue as to who is the ‘Okpala’ or the first son and this issue relates to family status. In my view therefore the omission of the words ‘which raises an issue’ in section 13 makes it clear that although the court has to deal with an issue relating to family status or inheritance in order to arrive at a decision in the cause or matter before it, that does not oust the jurisdiction of the court . (Underline supplied)

The underlined portions in the ruling of the learned trial judge set out above undoubtedly recognise the fact that an issue relating to family status arises in the case in hand; and it is in our view, a fundamental (not incidental) issue which must be resolved by the court before it can adjudicate on the claim before it. Surely, on the evidence before the lower court as well as the state of the pleadings, the only issue which calls for determination in this case, the form and nature of the claim on the writ notwithstanding, is this:

Is the plaintiff the Okpala of the Dunu family?, in other words, is he the surviving eldest male in the line of Aguba, the eldest male child of Dunu? This, undoubtedly is an issue relating to family status

This must be so because, on the admission of parties in this suit, the native custom which applies to both of them prescribes that the eldest surviving male child in the line of descent from the eldest male son of Dunu (in this case, Aguba) is entitled as a matter of right to occupy and possess the OBU and MBALA OBU.

The situation here is not the same as in the case of Lasisi Odunsi vs. Aminu Ojora [1961] All N.L.R. 283 to which learned counsel for respondent drew our attention; in that case (Ojora) it was possible to settle all the issues which arose for determination by the court “without entering into any question relating to the selection, appointment, installation, deposition or abdication of a Chief,… See Brett F.J. in the case of Ojora at p. 286 [1961] All N.L.R. The question of family status among “persons” subject to the jurisdiction of customary courts, as defined in section 19 (a) of the Customary Courts Law, of Eastern Nigeria, 1956, is undoubtedly a matter which is subject to the jurisdiction of the Customary Courts of Eastern Nigeria. By section 14 (formerly 13) of the High Court Law, Eastern Nigeria, the High Court except in the circumstances prescribed therein, has no original jurisdiction to determine the issue. This ground of appeal succeeds.

Accordingly this appeal will be allowed. The judgment and order of the High Court dated the 3rd day of August, 1964 in suit 0/26/62 are hereby set aside and in substitution therefore it is hereby ordered that the suit be struck out for want of jurisdiction. Respondent will pay to appellant costs of 95 guineas.

Other Citation: (1966) LCN/1339(SC)