Eugene Meribe V. Joshua C. Egwu (1976)

LawGlobal-Hub Lead Judgment Report

MADARIKAN, J.S.C.

This appeal is from the judgment of Aniagolu, J. in the High Court, Umuahia, in an action (Suit No. HU/36/71) instituted by the respondent, as plaintiff, against the appellant who was the defendant and who was sued in a representative capacity, namely, for himself and as representing the Meribe family.  In the action, the plaintiff had claimed declaration of title to a parcel of land called “Uzo Ama Awom”, N200 damages for trespass and an injunction.

At the trial, it was common ground that Nwanyiakoli, one of the wives of Chief Cheghekwu Egwu, owned the land in dispute.  It transpired that Chief Egwu died in 1925 and was survived by many children two of whom were the plaintiff and Meribe Cheghekwu Egwu who was the father of the defendant.  Eventually, Nwanyiakoli died in 1937.

The evidence led in support of the plaintiff’s case was that because it seemed as if Nwanyiakoli was barren, she handed her niece, Nwanyiocha, over to Chief Egwu as a wife.  We shall refer, in passing, to the relevant portions of the evidence of one of the witnesses on this point. In his evidence in chief, Chief J.O. Ekwuruke (P.W.4) said:-

“It is the custom in our place that if a woman has no issue she can marry another woman for her husband; any issue from the said married woman would be regarded as an issue from the woman who married her for the purpose of representation in respect of estates and inheritance”.

And under cross-examination, he said:-

“The reasoning behind the custom is that where a man married two sisters the two sisters would never live on good terms.  For that sake the custom forbids it. But whore it is the existing wife who comes and marries her own sister for the husband, then the custom permits this to happen since the matter of quarrel would not arise where she brought her sister herself”.

Later, Nwanyiocha had children for Chief Egwu the eldest of whom was the plaintiff.  Though the plaintiff admitted that Nwanyiocha was his mother, he went further to contend that Nwanyiakoli was his step-mother and that she regarded him as her son –

“because she lived with my natural mother.  She breastfed me and maintained me as her son.  She put me in school and I lived with her as her son”.

It was part of the plaintiff’s case that when Nwanyiakoli died in 1937, he performed customary burial ceremonies and inherited all her properties (including the land in dispute). He had since been in undisturbed possession of the land until 1971 when the defendant committed the acts of trespass giving rise to this action.

The plaintiff also called two of his boundarymen (Peter Ucheagwu (P.W.1) and Gilbert U. Iheme (P.W.2)) as witnesses.  They testified that after the death of Nwanyiakoli, the plaintiff started farming on the land in dispute and that neither Meribe nor the defendant farmed on the land.

The defence to the action was that after the death of Chief Egwu, Meribe being his eldest surviving son, inherited Nwanyiakoli under native law and custom; that they both lived together as husband and wife; and that they farmed on the land.  When Nwanyiakoli died, Meribe performed the customary burial ceremonies and inherited her properties (including the land in dispute); and, on the death of Meribe, the said properties devolved on his children.  The defence stoutly denied the existence of the custom alleged by the plaintiff permitting a barren wife to marry a woman for her husband, the issues of whom would be regarded as the issues of the barren woman.

In an attempt to narrow down the issues contested at the trial, the learned trial Judge set out, in his judgment, the issues on which the parties were agreed; and before reviewing the evidence, he made the following observations:-

“The plaintiff contended, hotly disputed by the defendants, that:-