Augustine Nwafor Mojekwu V Mrs. Theresa Iwuchukwu (2004)

LAWGLOBAL HUB Lead Judgment Report

UWAIFO, J.S.C.

This is an appeal from a decision of the Court of Appeal, Enugu Division given on 10 April, 1997 and reported as Mojekwu v. Mojekwu (1997) 7 NWLR (Pt. 512) 283. It touches on the peculiar system of kola tenancy in Ibo land. In this particular case, it is what is known as the Mgbelekeke family kola tenancy system of Onitsha. The plaintiff, now appellant, brought an action in June, 1983 in the High Court of Onitsha Judicial Division in respect of property subject of the said kola tenancy against Mrs. Caroline Mgbafor Mojekwu (who having died, has now been substituted in this appeal by Mrs. Theresa Iwuchukwu) claiming as follows: (a) A declaration that the. Plaintiff is entitled to the statutory right of occupancy of the property situate at and known as No. 61 Venn Road, South, Onitsha in accordance with Nnewi Native Law and Custom; (a)(i) A declaration that the plaintiff being the recognised kola tenant of the Mgbelekeke family of Onitsha is entitled to the statutory right of occupancy of the property situate at and known as No. 61 Venn Road, South, Onitsha in accordance with the Mgbelekeke family of Onitsha kola tenancy. (b) N5,000.00 (five thousand naira) being general damages for trespass. (c) Perpetual injunction restraining the defendant, her servants, agents and privies from committing further act of trespass. (d) An account of rents collected by the defendant from No. 61 Venn Road, South, Onitsha, from the month of April, 1982 until the delivery of judgment in this suit.

The case presented by the plaintiff is that his only uncle Okechukwu Mojekwu acquired a parcel of land from the Mgbelekeke family of Onitsha under their kola tenancy and built a house on it which is known as No. 61 Venn Road, South, Onitsha. The man died in 1944 and was survived by two daughters and a son called Patrick Adina Okechukwu Mojekwu (hereinafter referred to as Patrick). He said his own father, the only brother of Okechukwu Mojekwu, died in 1963 while Patrick, the only son of his said uncle, died during the Nigerian civil war without any child. He claimed that by virtue of Nnewi nati ve law and custom, he has succeeded to the estate of his late uncle, Okechukwu Mojekwu, and is now the head of the Mojekwu family. He lays claim to the property by virtue of a document (exhibit 1) he got from the Mgbelekeke family.

The mother of late Patrick was Caroline Mgbafor Mojekwu. The two daughters of Okechukwu Mojekwu are Mrs. Basilia Nwokwu and Mrs. Theresa Iwuchukwu who has been substituted for Caroline Mgbafor Mojekwu as the present respondent.

The defendant (Caroline) on the other hand had claimed that the property in question had passed to late Patrick, the only son of Okechukwu Mojekwu and that Later it passed to Patrick Chukwuemeka Okechukwu (hereinafter referred to as Emeka), the alleged infant son of Patrick. She claimed that when the house built by her husband went into ruins during the Nigerian Civil War, she rebuilt it, without any reference to the plaintiff, with her own money. She put in all the fee-paying tenants including one Clement Udezue, at first a difficult tenant who later agreed to pay rent to her; but he has been ejected ever since. She said that the plaintiff misrepresented facts to the Mgbelekeke family to recognise him as the person entitled to continue the kola tenancy. It was averred “that recognition of the, plaintiff, a stranger under the facts and circumstances of this case and where the male and female issues of the deceased kola tenant are living, is contrary to the Onitsha customary kola tenancy system of devolution of property on death.”

The leamed trial Judge (Amaizu, J.) painstakingly considered the case and on 17 September, 1993, dismissed the suit. By a unanimous decision, the Court of Appeal dismissed the appeal against that judgment on 10 April, 1997. Let me remark here that in the Court of Appeal, the appellant formulated nine issues for determination. With all due respect, six of the issues were largely peripheral to what was expected to be of concern for decision. Those six issues dealt with matters on adjectival law. They were not in any way relevant to the substance of the case which I state as three vital aspects necessary for consideration in this case, namely, (a) what law governs Mgbelekeke kola tenancy; (b) to which class of persons does that tenancy primarily descend; and (c) can the present plaintiff claim to be within that class if the deceased tenant was survived by children, male or female. In the present case that ought to be the focus. But because that was lost on the appellant’s counsel, the court below found itself dealing at length with unnecessary issues. The remaining fairly relevant three issues, though raised rather clumsily by the appellant before the court below out of the nine issues canvassed, are issues 5, 7 and 9. They were stated thus: “5. Did the learned trial Judge not evaluate the evidence before him when he held as follows: – ‘There is no averment in support of the relief sought by the plaintiff that under the Onitsha kola system of tenancy he is entitled to the land in dispute’. (formulated from ground 10).7. Did the trial Judge fail to evaluate evidence before him with respect to the issue whether the plaintiff is the surviving eldest male issue in the Mojekwu family who is entitled to inherit the property in dispute in accordance with Nnewi Native Law and Custom (Formulated from ground 12). 9. Did the learned trial Judge err in law by dismissing the plaintiffs claim and believing the testimony of the defendant’s witnesses despite the fact that the defendant in her pleadings and the evidence of her witness DW1 in one breath stated that Patrick Adina is alive therefore should inherit and in another breath asserted that Emeka, Patrick’s alleged son and herself should inherit the land in dispute (formulated from ground 14).” It is significant that the court below did reach a conclusion which I consider touched on the three vital aspects I adumbrated above when it observed in Mojekwu v. Mojekwu (supra) per Tobi, JCA at page 303:

“I have come to the conclusion that the applicable law is the lex situs. The lex situs is the kola tenancy law. In exhibit 5, AkunneAugustine Chike Peter Abomeli, now dead, gave evidence as P.W.6 on 7th May, 1986 before His Lordship, Onwuamaegbu, J. On the incident of a Kola tenancy, the witness said under cross-examination:

‘I know the custom of succession to land held under the Onitsha kola tenancy, especially that of the Mgbelekeke family. The children of a Kola tenant inherit the kola tenancy. The children include girls so that even if the deceased had no male issues the female issues would inherit the kola tenancy…. I have been a member of the Mgbelekeke Committee since the end of the Nigerian Civil War.’

Under re-examination, witness said:

‘Within the Mgbelekeke family a woman can inherit the kola tenancy of their deceased father (but not a widow only the offspring of the man) …’

The above evidence is vindicated by the decision of the Supreme Court in Udensi v.Mogbo, supra, a case which is very instructive.”

Later on in the judgment, the learned Justice of appeal in reference to the said case of Undensi v. Mogbo, observed at page 304:

“There are two significant decisions of the court. The first one is that kola tenancy under the Mgbelekeke family customary law is inheritable by the children of the deceased kola tenant – no matter the sex – but only upon production by the succeeding child, and accepted by the Mgbelekeke family, of further kola. The second is that the ‘oli-ekpe’ custom did not apply to the property.”

Still later, he said at page 305: