(2017) lpelr-42582(ca)a custom which enables a child born and fathered by another man to claim and...
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OKEKE v. OKEKE
CITATION: (2017) LPELR-42582(CA)
In the Court of AppealIn the Enugu Judicial Division
Holden at Enugu
ON FRIDAY, 23RD JUNE, 2017Suit No: CA/E/132/2013
Before Their Lordships:
IGNATIUS IGWE AGUBE Justice, Court of AppealTOM SHAIBU YAKUBU Justice, Court of AppealMISITURA OMODERE BOLAJI-YUSUFF Justice, Court of Appeal
BetweenMR. AFAM OKEKE - Appellant(s)
AndMADAM HELEN OKEKE - Respondent(s)
RATIO DECIDENDI1. ACTION - CLAIM(S)/RELIEF(S): Whether the Court can grant a relief not claimed
"... His Lordship's pronouncement to the effect that the aforesaid customary marriage celebrated between the respondent's father and the appellant's mother, was null andvoid, was clearly tantamount to a nullification of that marriage, which was not part of the reliefs claimed or prayed for by the respondent. Therefore, to my mind, the opinionrendered on the said customary marriage by the learned trial judge, was gratuitous as a father Christmas would do and the Court is not a father Christmas. Ekpeyong v.Effiong (1975) 2 SC 71 at 80 - 81; Ezeakabekwe v. Emenike (1998) 11 NWLR (pt. 575) 529; Attor. Gen. Abia State v. Attor Gen. Federation & Ors (2006) 16 NWLR (pt. 1005)265 at 387." Per YAKUBU, J.C.A. (Pp. 16-17, Paras. F-C) - read in context
2. COURT - DUTY OF COURT: Duty of a court not to deal with issues not placed before it".. In any event, that issue was not raised and placed before the Court below for its determination. Abbas & Ors v. Solomon & Ors (2001) 7 SC (pt. II) 45; (2001) 15 NWLR (pt.735) 144; (2001) LPELR - 23 (SC)." Per YAKUBU, J.C.A. (P. 17, Paras. D-E) - read in context
3. CUSTOMARY LAW - IGBO NATIVE LAW AND CUSTOM: Extent of the application of Section 42 of the 1999 Constitution as amended with respect to inheritance; legality ofany culture that disinherits a daughter from her father's estate or wife from her husband's property"Though Section 42 of the 1999 Constitution as amended provides that no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of thecircumstances of his birth, there is certainly a distinction between a biological child of a man and a child born post humously to a man who died five years before the birth ofthe child and who from entirely evidence on record is not the biological father of the child. In the instant case, the only person who is being discriminated against is therespondent on ground of her sex which is forbidden by the Constitution of the Federal Republic of Nigeria. The attempt by the appellant to disinherit her of her father'sproperty on the ground of her sex is unconstitutional as Section 42(1)(a) provides that:1. "A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person.a. Be subjected either expressly by, or in the practical application of any law in force in Nigeria or any executive or administrative action of the government, to disabilities orrestrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinion are not made subject." Per BOLAJI-YUSUFF, J.C.A.(Pp. 58-59, Paras. B-C) - read in context
(201
7) LP
ELR-42
582(
CA)
4. CUSTOMARY LAW - IGBO NATIVE LAW AND CUSTOM: Legality of any culture that disinherits a daughter from her father's estate or wife from her husband's property"A custom which enables a child born and fathered by another man to claim and inherit the property of a man who had died before he was even conceived by his mother andto disinherit the man's biological child because she is a female is certainly inconsistent with sound reasoning. It is repugnant to natural justice, equity and good conscience. Itis an affront to the natural order of human life.This Court and the Supreme Court have consistently maintained its position that such a custom is repugnant to natural justice, equity and good conscience. A custom whichenables a complete stranger to inherit what a man owned and worked for all his life because he has no male child cannot be allowed to continue. Even with all the giant stridesof modern science, no one has been able to dictate whether an embryo should develop into a male or female child. For now, that decision lies firmly with the creator. SeeOKONKWO V. OKAGBUE & 2 ORS (1994) 9 NWLR (PT.308) 301, ANEKWE & ANOR V. NWEKE (2014) LPELR - 22697 (SC), OJUKWU V. AGUPUSI & ANOR. (2014) LPELR - 22683(CA), MOTOH & ANOR. V. MOTOH (2010) LPELR - 8643 (CA)." Per BOLAJI-YUSUFF, J.C.A. (Pp. 57-58, Paras. A-A) - read in context
5. CUSTOMARY LAW - IGBO NATIVE LAW AND CUSTOM: Extent of the application of Section 42 of the 1999 Constitution as amended with respect to inheritance; legality ofany culture that disinherits a daughter from her father's estate or wife from her husband's property"I should say that in appropriate circumstances, the applicability of Section 42(2) of the 1999 Constitution (supra) shows up where for example, female children are deniedtheir right to inheritance of the estate of their deceased father. Such instances which had to do with the notorious and nebulous Nnewi native law and custom had reared itsugly head in several cases before which came to this Court on appeal. One of such cases is the most recent unreported Appeal No. CA/E/145/2012 between Mr. Ubaka Ugbenev. Cecelia Ugbene & Ors, decided on 9th December, 2016. In that case, the respondents who were the wife and female children respectively, of their deceased father -Benjamin Ugbene were being denied their right to the inheritance of their husband/father's estate because according to Egede native law and custom, females or women donot inherit the estates of their deceased father.My learned brother, Ignatius Igwe Agube, JCA in his lead judgment at pages 39 - 42, re-stated the law thus:"The learned counsel for the Respondent(s) on this point has rightly cited the dictum of Ogunbiyi, JSC in the case of Ukeje v. Ukeje (2014) 11 NWLR (pt. 1418) 384 at 408paras. C - E where the erudite Law Lord settled the issue of female inheritance from the estate of their intestate father by holding any such Igbo Custom which disentitlesfemale children from inheriting their deceased father's estate in conflict with Section 42(1) of the Constitution of the Federal Republic of Nigeria and therefore null and void.In that case which facts are almost similar to the one at hand, the learned Justice of Apex Court held thus:-"No matter the circumstances of the birth of a female child, such a child is entitled to an inheritance from her late father's estate. Consequently, the Igbo customary law whichdisentitles a female child from partaking in the sharing of her deceased father's estate is in breach of Section 42(1) and (2) of the Constitution a fundamental right, provisionguaranteed to every Nigerian. The said discriminatory customary law is void as it conflicts with Section 42(1) and (2) of the Constitution."That Section of the Constitution for the avoidance of doubt stipulates that:"42(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person -(a) Be subjected either expressly by, or in the practical application of any law in force in Nigeria or any executive or administrative action of the government, to disabilities orrestrictions to which citizens of Nigeria of or other communities, ethnic groups, places of origin, sex, religions or any privilege or advantage that is not accorded to citizens ofNigeria or other communities, ethnic groups, places of origin, sex, religions or political opinion.(2)No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth."By the above provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the custom of the Egede people and of Igbos as a whole which discriminatesagainst the children of Benjamin Ugbene from inheriting their father's estate in the property in dispute on ground of sex or gender is inconsistent with the Constitution apartfrom being repugnant to natural justice, equity and good conscience and the current public policy of this nation.I was minded in the case of Felicia Ngozi Okonkwo v. Benjamin Aforka Okonkwo & 5 Ors (2014) 17 NWLR (pt. 1435) 18 at 54 paras. C - G; where a childless widow was/isprevented to inherit as much as his male intestate spouse by Section 120(1)(b) of the Administration and Succession (Estate of Deceased's Person) Law of Anambra State,1991, to hold that to the extent that it discriminates or dichotomises between male and female intestate spouses, it is inconsistent with Section 42(1) and indeed (2) of theConstitution of the Federal Republic of Nigeria, 1999 (as amended). In the instant case, the 1st respondent even has two children but she is precluded by the custom of Egedepeople from inheriting her husband's share of her father-in-law's estate along with her children on ground of gender. To the extent of that discrimination on the ground of herstatus as wife of customary marriage if at all, that custom is void and of no effect whatsoever.On this ground alone, this issue shall be resolved in favour of the respondents and indeed this appeal ought to be dismissed as the respondents have proved their interest inthe disputed property on the preponderance of evidence.However, if we shall go by the authorities of Falomo v. Onakanmi (2005) 11 NWLR (pt. 935) 126 at 158 (CA); Uchendu v. Ogboni (1999) 5 NWLR (pt. 603) 470; Lawal v.Olufowobi (1996) 12 SCNJ 376; Eze v. Atasie (2000) 10 NWLR (pt. 676) 470; Onwuama v. Ezeokoli (2002) 5 NWLR (pt. 760) 353 at 367 and Kodilinye v. Odu (1935) 2 WACA336; the respondents had pleaded and given uncontradicted evidence as well as tendered Exhibit A and B which were to the effect that Benjamin Ugbene and Godwin Ugbenewere Joint Lessees of the Building Lease dated 16th January, 1961 Registered as No. 8 page 8 Volume 263 at the Lands Registry Enugu. (See page 23 - 25 of the Records). Atpages 26 - 27A of the Records, it is shown that on the 17th day of August, 1976 the appellant re-registered the same building Lease as No. 62 at page 62 in Volume 936 of theLands Registry Enugu in the name of Godwin Ugbene as the sole owner of the said property.No reasonable explanation has been offered for the said fraudulent registration which was done behind the successors-in-title of his late brother Benjamin Ugbene. The pieceof land was not land purchased by the Appellant but by inheritance from the appellant and his late brother.Accordingly, even if the term of years expired it ought to be renewed in the names of the appellant and either the wife or children of Benjamin as Joint Owners.Having not denied the fact that the 2nd and 3rd respondents and indeed the 1st were the biological children and wife of the late Benjamin Ugbene, the respondents provedtheir title and interests to the said property to warrant judgment being entered in their favour. The respondents on the strength of their case established their respective rightsas the only defence the appellant had was the custom of Egede people which I have declared null and void. I refuse to dismiss the claim of the respondents as the learned trialjudge was not in error to have given the judgment.The learned counsel for the appellant must be deluding himself to have submitted that the respondents did not place any evidence whatsoever before the Court below. On thecontrary there was over whelming evidence upon which the Court acted to give judgment in favour of the respondents."My Lord, Helen Moronkeji Ogunwumiju, JCA, in agreement with the lead judgment (supra) had this to say, to wit:"I have read the erudite and exhaustive judgment just delivered by my learned brother IGNATIUS IGWE AGUBE JCA. I am in complete agreement with his reasoning andconclusion that the appeal has no merit and should be dismissed. I will add a few words. The respondents in this appeal are the wife and female children of one late BenjaminUgbene. The property in dispute was inherited by late Benjamin and his brother Ubaka Ugbene. The argument of the appellant is that in the first instance, the 1st respondentas plaintiff had no locus under customary law of the Igbos to challenge his actions in respect of the family property which he had surreptitiously appropriated to his own soleuse. Appellant also argued that the 2nd and 3rd respondents as females children of his late brother could not inherit his share of the property in dispute because of the Igbocustom which forbids women children from inheriting from their father any landed property. I share the view of my learned brother that the biological children of BenjaminUgbene have a right in the estate of their grandfather. The type of anachronistic custom being promoted by the appellant for excluding the 2nd and 3rd respondent fromenjoying part of their grandfather's property which devolved on their father is the Igbo custom which disentitles female children from inheriting their deceased father's estatewhere their father died intestate. Ogunbiyi JSC in Ukeje v. Ukeje (2014) 11 NWLR pt. 1418 page 384 at 408 put paid to that obnoxious custom by declaring same in conflictwith S. 42(1) of the Constitution. The customs of Egede people and of the Igbos in general which seek to discriminate against women in any situation on account of their sex orgender is in my humble view that which not only run foul of the Constitution but is repugnant to natural justice, equity and good conscience and has no place in the modernsociety."And in my own modest contribution, I said, inter alia:"I have had the advantage of reading before now, the draft of the judgment rendered by my learned brother - IGNATIUS IGWE AGUBE, JCA. His Lordship, characteristically andmeticulously resolved all the issues thrown up in this appeal, to my satisfaction.By virtue of the provisions of Section 42(1) (a) (b) & (2) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, read together with Section 18(3) of theEvidence Act, 2011; the Egede custom which the appellant prided himself on, which sought to disentitle the female children from inheriting their deceased father's property,cannot be a thing of pride in the 21st century Nigeria. Such stone age custom can no longer hold sway because it is not in consonance with natural justice, equity and goodconscience. This position has been well settled beyond peradventure by the Supreme Court in Ukeje v. Ukeje (2014) 11 NWLR (pt.1418) 384 at 408 and the unreporteddecision of this Court in CA/E/227/2014 COL. DR. G. O. EMODI RTD & 2 ORS v. NNAEMEKA FIDELIS EMODI, delivered on 17th April, 2015. Further see Mojekwu v. Mojekwu(1997) 7 NWLR (pt. 512) 283; Motoh v. Motoh (2010) LPELR - 8643 CA). It is unthinkable, if female children chose or elected to be born as female children. So, why should theybe disadvantaged on account of the circumstances of their birth? Even if their parents, on account of increased scientific knowledge chose that they be born as femalechildren, then they (the parents) were mindful of the fact and boundless joy that a child is a child, hence no child can be inflicted with a disadvantage that the child did notbargain for." Per YAKUBU, J.C.A. (Pp. 46-55, Paras. D-E) - read in context
(201
7) LP
ELR-42
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CA)
6. CUSTOMARY LAW - DOCTRINE OF REPUGNANCY: Whether a custom which allows a woman to have posthumous children for her deceased husband is repugnant tonatural justice, equity and good conscience"Now, let us examine the vexed issue of whether or not the learned trial judge was right when he came to the decision to the effect that since the appellant was born in 1952,five years after the demise of Simon Okeke in 1947, the appellant was a stranger to the family of the late Simon Okeke. That is, the appellant could not have been aposthumous son of the late Simon Okeke, hence the former cannot inherit anything from the late Simon Okeke. A similar situation with respect to Nnewi native law andcustom pertaining to inheritance of a dead man's property by four children borne by his widow after his demise had arisen in the unreported appeal No. CA/E/115/2000between Benedict Ojukwu v. Gregory Agupusi and Anor, decided by this Court on 22nd January, 2014.The summary of the facts of the case as stated and agreed by the parties in their respective briefs are that the Appellant is the Head of the Ojukwu Family of Okpuno,Ebenator, Uruagu Nnewi, Anambra State. The 1st Respondent is also of Okpuno Ebenator, Uruagu, Nnewi extraction and from the same larger Dunuka Family with theAppellant. The 2nd Respondent was the wife of the late Christoper Ejimkonye Ojukwu the yonger brother of full blood of the Appellant. The said Christoper Ojukwu died in1987, and the 2nd Respondent had three surviving daughters for the deceased at the time of his demise. After the death of her husband, the 2nd Respondent begat fourchildren (two males and two females).?It was the case of the Appellant that the 1st Respondent impregnated the 2nd Respondent which resulted in the birth of the four children. However, the Respondents whileacknowledging the fact of the 2nd Respondent giving birth to those four children posthumously for Christopher Ojukwu, nevertheless, denied knowledge of who their biologicalfather is/was even though same is a fact peculiarly to the knowledge of the 2nd Respondent and the burden of proof was on her.Parties joined issues on whether it was abominable or repugnant to natural justice or good conscience for children (issues) to be credited to the deceased. The learned trialjudge held that the children born long after the death of their mother's late husband were children of the deceased and that same was not repugnant or abominable. Hefurther held that from the totality of the facts before him there was no marriage between the Respondents and that the 2nd Respondent and that the four children were/arestill members of the Ojukwu family by Nnewi Native law and Custom, contrary to the claim of the Appellant which was dismissed in its entirety.My Lord, I. I. Agube, JCA in his lead judgment at pages 22 - 28 thereof held, thus:"In Nwachinemelu Okonkwo vs. Mrs. Lucy Udegbunam Okagbue & 2 Ors (1994) 9 NWLR (pt. 308) 301, the Supreme Court in an appeal that emanated from this HonourableCourt in a case from the High Court of Anambra State, Onitsha Judicial division where the custom of the Onitsha people that enabled a woman to marry another woman forpurposes of raising children for her deceased brother fell for consideration.Ogundare, JSC at page 343 Paragraph H to page 344 Paragraphs A - B of his contribution to the lead judgment of Uwais JSC wherein Wali, Ogundare, Mohammed and Adio J.JSC concurred, reasoned thus:-"The institution of marriage is between two living persons. Okonkwo died 30 years before the purported marriage of the 3rd defendant to him. To claim further that thechildren the 3rd defendant had by other man or men are the children of Okonkwo deceased is nothing but an encouragement to promiscuity. It cannot be contested thatOkonkwo (deceased) could not be the natural father of these children. Yet 1st and 2nd defendants would want to integrate them into the family. A custom that permits of sucha situation gives licence to immorality and cannot be said to be in consonance with public policy and good conscience. I have no hesitation in finding that anything that offendsagainst morality is contrary to public policy and repugnant to good conscience. It is in the interest of the children to let them know who their true fathers are (were) and not toallow them live for the rest of the lives under the myth that they are children of a man who had died many decades before they were born."I hold the view that the observations of the learned justice of the Apex Court apply to the facts and circumstance of this case where a man who died in 1987 could still fatherfour children long after his death and that the learned trial judge had no rationale basis for distinguishing our present case from Okonkwo v. Okagbue (supra). Ogundare JSCagains in the course of his contribution also alluded to Edet v. Essien (1932) 11 NLR 47 per Cecil Carey, J. who held in a case where a man claimed the child of his former wifewho had left and married another husband who impregnated her, on the ground that the divorced wife had not refunded the bride price; that such a custom is repugnant tonatural justice equity and good conscience, to be rightly decided, and went on to reflect on Nwaribe v. President Registrar, Eastern Orlu, 8 ENLR 24 which he held that ifEgbuna, J. S. Decision was understood to uphold the local custom of Otulu which is akin to the Nnewi Custom, now in contention, then it was wrongly decided.With the greatest respect to the learned counsel to the respondent and indeed the learned trial judge, the decision of the learned Ogundare, JSC in the Okonkwo v. Okagbuecase was not obiter but was part of the ratio decidendi which was founded on settled principle of our customary jurisprudence that any custom which is repugnant to naturaljustice equity and good conscience or contrary to public policy or any law in force should not be enforced but should be struck down.Before the decision of the learned trial judge which is now on appeal, there had been a host of decided cases some of which I shall make bold to list hereunder, on thisprinciple of our law. In the celebrated case of Mariyam v. Sadiku Ejo (1961) NRNLR 81; it was held that the respondent was not entitled to custody of children theappellant/woman had for another man fifteen months after she last had any relationship with the respondent her former husband.Meribe v. Egwu (1979) 3 S.C. 23 which was cited by the learned counsel for the appellant also declared a custom which permitted marriage of one woman to another (in whichthe children of such marriage would not be sure of their natural father) to be repugnant to natural justice, equity and good conscience. See further Helen Odigie v. Iyere Aika(1985) NBCL 51.On the whole I shall commend - Dokmor Macleans v. Inlaks (1980) 8 - 11 S.C 1 at 24, Odugbo v. Abu (2001) 14 NWLR (pt. 732) S.C Eporokun v. University of Lagos (1986) 4NWLR (pt. 34) 162 S.C and Global Trans Oceanica S. A. vs. Free Ent. Nig. Ltd (2001) FWLR (PT. 40) 1706, which variously held that the Supreme Court is the ultimate or highestCourt in the land and all previous decisions of the Court are absolutely binding upon all other Courts whether the decision is correct or not until the Apex Court over rules itsself in a judgment given per incuriam.Standing by the previous decisions of the Supreme Court which have not been prove to be perverse or to have been decided per incuriam, obviates stability and enhancesconsistency and coherent corpus juris and presents continuity and manifest respect for the past decisions in our legal order. Apart from ensuring equality of treatment oflitigant before the Courts, it spares the judges the stress and drudgery of re-examining rules and principles of law thereby affording the law some degree of predictability andstability of the existing legal order.It is upon the foregoing premises, that I shall adopt the dictum of Ogundare JSC in the Okagbue case as well as Oyewunmi v. Ogunsesan (1990) 2 NWLR 182; where he statedthat: "In deciding whether a custom is repugnant to natural justice, equity and good conscience or contrary to public morality or policy, involves the value judgment of thejudge/Court which should be objectively related to contemporary mores, aspirations, expectations and sensitivities of the people of this country and the consensus opinion ofcivilized international community which we share." There is no doubt that with improved technological developments we are now in a global village and accordingly ourcultures must reflect these changing times yet without compromising our natural values and ethos.Talking of international community, the so called civilised world are now encouraging same sex marriage and unnatural behaviours but we need not copy them to ourdetriment as it would appear that we are even now paying the bitter price of modernity and westernization.Before rounding up on this issue, let me say that the learned counsel for the respondent was right to have submitted that the appellant did not pray for any relief declaring thecustom repugnant. Even then it has been held severally in Okonkwo v. Okagbue and other cases of similar facts that the issue of repugnancy of a custom need not be pleadedbut can be raised in the course of address by counsel as it is a matter of law. The Court can also raise it suo motu since it is enjoined to take same into consideration and applyit in determining whether a particular custom is applicable. See per Uwais, JSC at page 3121 paras E - G;Peanok Ltd v. Hotel Presidential Ltd (1982) S.C 1, Ashogbon v.Oduntan (1935) 12 NLR 87.At page 345 Paragraph G of the Okagbue case, per Mohammed, JSC on this point posited that once a custom has been challenged in a Court of law by anyone who isinterested or adversely affected by its application and a call has been made to examine whether it offends natural justice, the Court would pursue such complaint in order toestablish whether the custom is inconsistent with sound reason and good conscience.Uwais JSC in his lead judgment at page 323 agreed that: "Occasions have however arisen where the Courts had found it necessary to declare certain customs repugnant tonatural justice, equity and good conscience or against public policy and morality." He then went to cite the dictum of Osborne C. J. in Lewis v. Bankole (1908) 1 NWLR 81 andenumerated cases like Re Effiong Okon Atta (1931) 10 NLR 65; Re Kwaku Dumptery (1930) 1 WACA 12, Edet v. Essien (supra) 1 Amachree v. Kalio (1914) 2 NWLR 108, Nzekwu& Ors v. Nzekwu & Ors (1989) 2 NWLR (pt. 104) 373 at 895 and Eugene Meribe v. Joshua C. Egwu (supra) where Madarikan, JSC had held:-"In every system of jurisprudence known to us one of the essential requirements for valid marriage is that it must be the union of a man and woman thereby creating thestatus of husband and wife. Indeed, the law governing any decent society should abhor and express its indignation of a "woman to woman" marriage, and where there is proofthat a custom permits such an association, the custom must be regarded as repugnant by virtue of the proviso to Section 14 (3) of the Evidence Act and ought not to beupheld by the Court."I believe the dictum of Madarikan, JSC and others earlier cited have put paid to the contentions of the learned counsel to the respondent that there was no prayer for thecustom to be declared repugnant to natural justice, equity and good conscience and the erroneous decision by the Court that the Nnewi custom which permits wives to havechildren posthumously for their husbands is not repugnant to natural justice. I hold that the custom of Nnewi people which allows wives of deceased husbands to haveposthumous children for their late husbands is not only repugnant to natural justice, equity and good conscience but contrary to public morality and policy in that itencourages prostitution and promiscuity apart from stigmatizing the children who shall be perpetually insure of their biological fathers by the circumstances of their birth as inthis case."In effect, the Nnewi native law and custom which permitted widows to have children posthumously, in the name of their deceased husbands, was held to be not onlyrepugnant to natural justice, equity and good conscience but aversed to public morality and policy because it encourages wanton prostitution and promiscuity by suchwidowed wives. The implication is horrendous to the effect that children who are products of such illicit sexual activities by their mothers will have the notion of a person whois not their biological father as being their father, but who, in fact is not.?Again, back to the instant case, I am in complete agreement with the decision of the learned trial judge at page 175 of the record of appeal to the effect that since theappellant was born five years after the demise of Simon Okeke, he cannot lay claim to a right of inheritance to the estate of the late Simon Okeke nor can the appellantcontend successfully that he was denied his right of inheritance to the estate of late Simon Okeke because of the circumstances of his birth. It is up to the appellant and hissiblings to demand from their mother, who their real and biological fathers are, because their inheritance lay only to the estate of their real and biological fathers and not tothe estate of their make-belief father - Simon Okeke, who predeceased their conception and births." Per YAKUBU, J.C.A. (Pp. 33-45, Paras. D-A) - read in context
7. EQUITABLE DEFENCES - DEFENCES OF LACHES AND ACQUIESCENCE: Concept and nature of the doctrine of laches and acquiescence"The doctrine of laches and acquiescence was explained by Onyeama, JSC in Ukwa & Ors v. Awka Local Council & Ors (1965) All NLR 364, thus:"The doctrine of laches is that a person entitled to land should not stand by and allow another person who thinks the land is his to make improvements, and assert his right tothe land; he wants to take the improvements and cheat the other man of the expense he is making." Per YAKUBU, J.C.A. (P. 26, Paras. B-D) - read in context
8. EQUITABLE DEFENCES - DEFENCES OF LACHES AND ACQUIESCENCE: Principle governing the doctrine of laches and acquiescence"In Akanni & Ors. v. Makanjuola & Ors (1978) NSCC 526, the Supreme Court held to the effect that, as soon as the respondents noticed a building construction going on theland in dispute, they asserted their right to ownership and subsequently filed an action against the appellants, hence the equitable defences of laches, acquiescence andstanding by were not available to the appellants. The situation in the instant case is even worse where the appellant only merely resided with her mother on the compound indispute and no more, yet when he began to lay his adverse claim to the compound, the respondent, with her eyes well open, did not lose any sleep in challenging the adversemoves by the appellant. Therefore, equity in this instance, aids the vigilant and not the indolent. Hence, equity is on the side of the respondent and against the appellant." PerYAKUBU, J.C.A. (Pp. 27-28, Paras. D-B) - read in context
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7) LP
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CA)
9. EQUITABLE DEFENCES - DEFENCES OF LACHES AND ACQUIESCENCE: Whether a party relying on the defence of laches and acquiescence must specifically plead same"In any event, the law is well settled to the effect that in order for a plea of laches and acquiescence to be considered by the Court, the facts in support of the plea must beclearly pleaded by the defendant in his statement of defence. Isaac v. Imasuen (2016) 1 SCNJ (pt. II) 256." Per YAKUBU, J.C.A. (P. 28, Paras. B-D) - read in context
10. EVIDENCE - ESTOPPEL: Meaning, nature and effect of estoppel"Indeed, the doctrinal on plea of estoppel is part and parcel of our evidence law as encapsulated in Section 169 of the Evidence Act, 2011.In Sunday Ofoma & Anor v. Anthony Ifeanyi Obinwe & Anor CA/E/481/2013 decided on 15th July, 2016 reported in (2016) LPELR - 41042 (CA); I had cause to espouse on thedoctrine of estoppel, thus:"In law, estoppel is an admission or something which the law views as equivalent of an admission. By its very nature, it is so important and conclusive that the party whom itaffects will not be allowed to plead against it or adduce evidence to contradict it. Yoye v. Olubode (1974) All NLR 657; Ukaegbu v. Ugoji (1991) 6 NWLR (pt. 196) 127; Koiki v.Magnusson (2001) FWLR (pt. 63) 167. It is a common law principle which has gained statutory acceptance in Nigeria, such as Section 169 of the Evidence Act No. 18 of 2011. Itforbids a person or party who having shown that he agrees with a state of affairs, to later turn round and disclaim his act or omission. Hence both in common and statutorylaw, such conduct is not permitted. For example in Section 151 of the Evidence Act, 2004 which is in pari material with Section 169 of the Evidence Act, 2011, the use of thephrase that:"neither he nor his representative in interest shall be allowed" is emphatic. This was explained better by the Apex Court in Ude v. Osuji (1998) 10 SCNJ 75 thus:"The principle of estoppel by conduct is that where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legalrelation between them and to be acted upon accordingly, then once the other party had taken at his word and acted on it, then the one who gave the promise or assurancecannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance has been made by him. He must accept their legal relation asmodified by himself even though it is not supported in point of law by any consideration, but only by his word or conduct. SeeCombe v. Combe (1951) 1 All ER 69 at 770."There are principally, two kinds of estoppel. In Osunrinde & Ors v. Ajamogun & Ors (1992) 7 SCNJ 79; (1992) LPELR - 2819 SC at 39, his Lordship, Ogundare, JSC (now ofblessed memory) succinctly stated, to wit:"Now, there are two kinds of estoppel by record inter partes or per rem judicatam as it is generally known. The first is usually referred to as 'cause of action estoppel' and itoccurs where the cause of action is merged in the judgment, that is transit in rem judicatam. There is however, a second kind of estoppel inter partes and this usually occurswhere an issue has earlier on been adjudicated upon by a Court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedingsbetween the same parties (or their privies); in these circumstances. "issue estoppel arises."Furthermore, on the effect of estoppel, his Lordship, at page 46 of the report, stated:"The general rule of law undoubtedly is that no person is to be adversely affected by a judgment in an action to which he was not a party, because of the injustice in decidingan issue against him in his absence. But this general rule admits of two exceptions, one is that a person who is in privity with the parties, a "privy" as he is called is boundequally with the parties, in which case, he is estopped by res judicata: the other is that a person may have so acted as to preclude himself from challenging the judgment inwhich case he is estopped by his conduct."Indisputably, for the doctrine of estoppel to operate in any particular case, it must be established that,(i) The parties (or their privies as the case may be) in the previous case are the same as in the present case;(ii) The issues and the subject matter or res litigated upon in the previous case is the same as in the subsequent or present case;(iii) The previous action must have been determined by a Court of competent jurisdiction;(iv) The said decision in the previous case, must have finally decided the issues between the parties.The four fold requirements for the applicability of the doctrine of estoppel, must co-exist, such that the failure of one damnifies its efficacy." Per YAKUBU, J.C.A. (Pp. 29-32,Paras. A-F) - read in context
11. EVIDENCE - ESTOPPEL: Whether the plea of estoppel can be raised for the first time on appeal"the law is well settled to the effect that for a plea of estoppel to be entertained and considered by the Court, it must be pleaded in the defendant's statement of defence atthe trial Court and if not, it cannot be raised for the first time, at the appellate Court. Gbemisola v. Bolarinwa (2014) 3 SCNJ 166." Per YAKUBU, J.C.A. (Pp. 32-33, Paras. F-A) -read in context
12. JUDGMENT AND ORDER - ORDER OF COURT: Whether the court can make an order against or in favour of a person who is not a party to a suit"The learned respondent's counsel rightly stated the law to the effect that non-joinder of a party to an action does not vitiate the proceedings in that action. However, no Courthas the power to make a decision or a pronouncement which adversely affects the interest of a third party who is not a party in the action before the Court. Mrs. IfeanyiObiozor v. Baby Nnamua (2014) LPELR - 23041 (CA)." Per YAKUBU, J.C.A. (Pp. 17-18, Paras. F-B) - read in context
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TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading
Judgment): This appeal is against the judgment of the
Anambra State High Court of Justice, holden at Nnewi,
which was delivered on 22nd June, 2012 in favour of the
respondent. The reliefs prayed for by the respondent in her
amended statement of claim were namely:-
(a) A declaration that the plaintiff is the person entitled to
the grant of statutory right of occupancy in respect of
Chukwuanu the land known as the compound of late Simon
Okeke situate at Ndimgbu, Otolo, Nnewi.
(b) A declaration that the plaintiff is the person who
inherited the estate of late Simon Okeke.
(c) A declaration that the defendant is not entitled to
inherit the estate of late Simon Okeke or any part thereof.
(d) Injunction restraining the defendant, his agents,
servants or privies from further challenging or disturbing
the plaintiff in her use and occupation of the compound of
late Simon Okeke or his other estate wherever situate.
The respondent had claimed to be the heiress and
successor in title of late Simon Okeke who died intestate on
the 14th day of April, 1947. The said late Simon Okeke
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in accordance with the Marriage Ordinance lawfully
married the respondent’s mother – Mrs. Christiana Nnunwa
Okeke (Nee Ojukwu) in 1924. The marriage was blessed
with two female children namely:- Mrs. Cecilia Nnonyelum
Orizu (deceased) and Helen Okeke - the respondent. Mrs.
Cecilia Nonyelum Orizu (deceased) was born in 1925, while
the respondent was born in Jos in the then Northern
Nigeria now Plateau State on the 5th day of November,
1930.
The said late Simon Okeke in 1945 while the statutory
marriage was subsisting married a mistress – Mrs. Ebele
Okeke. The Appellant was born in 1952 that is about five
(5) years after the death of late Simon Okeke; by Mrs.
Ebele Okeke while living in her maiden home at Obiuno
Otolo Nnewi. On the death of Simon Okeke, Letters of
Administration of the deceased’s estate was granted to
Mrs. Christiana Nnunwa Okeke (Nee Ojukwu) and Mrs.
Cecilia Nonyelum Orizu (deceased) wife and daughter of
the deceased, who were also the mother and sister
respectively of the respondent.
After the death of late Simon Okeke, his brothers in
accordance with Nnewi Customary Law retained the
respondent in the
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home of her late father as his heiress and successor in title.
The respondent did not marry but had children out of
wedlock in compliance with the said custom.
The Appellant at a stage started challenging and disputing
the respondent’s right and position in her deceased father’s
compound and started claiming same as his own. The
dispute was submitted to several customary arbitrations
but remained unresolved as the appellant has been
disputing ownership of the compound of late Simon Okeke
inherited by the respondent, claiming it as his own.
The respondent at the Court below contended that the
appellant is not a son of late Simon Okeke and therefore
not entitled to the compound of the said late Simon Okeke
or any part of his estate. The respondent also contended
that the appellant by denying and challenging the right of
the respondent had misconducted himself and therefore no
longer entitled to remain in her father’s compound.
The Appellant in his statement of defence claimed that by
operation of Nnewi native law and custom he is the first
son of late Simon Okeke. He also averred that he is owner
and occupier of the compound
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(Obi) of late Simon Okeke.
The respondent in her amended reply to the appellant’s
statement of defence averred and contended that dead men
do not procreate or have children and that the Nnewi
customary law relied upon by the Appellant and which
recognizes a child born several years after the death of a
deceased person as the son of the man is repugnant to
natural justice, equity, good conscience and against public
policy.
The Appellant in his statement of defence and evidence in
Court still denied the title of the respondent to her father’s
estate and claimed same as his own.
The parties complied with the provisions of the High Court
of Anambra State (Civil Procedure) Rules, 2006 filing their
pleadings and witness depositions and documents to be
relied upon. The respondent in her evidence in chief on the
8th day of November, 2011 apart from adopting her
deposition tendered without objection the marriage
certificate issued on the marriage of her parents (Simon
Okeke and Mrs. Christiana Nnunwa Okeke (Nee Ojukwu) as
Exhibit A, Letters of Administration of the Estate of late
Simon Okeke granted to Mrs. Christiana Nnunwa Okeke
and Mrs.
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Cecilia Nonyelum Orizu (deceased) as Exhibit B and Deed
of Assent dated 23/04/96 by Mrs. Cecilia Nonyelum Orizu in
favour of the respondent. The respondent called witnesses
and thereafter closed her case.
The Appellant testified and called three witnesses. On the
closure of hearing, the parties pursuant to the provisions of
the High Court Rules (supra) filed their written addresses
which were adopted in Court. In a considered judgment,
the learned trial judge entered judgment in favour of the
respondent. The Appellant being dissatisfied with the
judgment, appealed against the said judgment. The Notice
and Grounds of Appeal is at pages 180 – 182 of the record
of appeal.
The said notice and grounds of appeal are to the effect,
inter alia:
“(A) ERROR-IN-LAW
The learned trial Judge erred in law in holding that the
marriage between the appellant’s mother Madam Ebele
Okeke and the deceased Simon Okeke was a nullity in law.
PARTICULARS OF ERROR
(a) There was no claim or counter claim on the validity of
the marriage between the deceased Simon Okeke and
appellant’s mother.
(b) Appellant’s mother was
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not a party to this matter for the learned trial Judge to have
made adverse findings against her.
(c) The Marriage Certificate tendered by the respondent as
evidence of a statutory marriage between Simon Okeke and
her mother was not a statutory marriage certificate and did
not prove same as it was mere church blessing and has no
evident implications of statutory marriage.
(d) Simon Okeke having died in 1947 was not a party to the
present suit either.
(e) The learned trial Judge decided a fundamental issue of
validity of a marriage between parties not before him and
this occasion a substantial miscarriage of justice.
(B) ERROR IN LAW
The learned trial Judge erred in law in holding that the
appellant was not a member of Simon Okeke’s family.
PARTICULARS OF ERROR
(a) One of the respondent’s witnesses Prince Ikeotuonye
testified appellant was a son of Simon Okeke, born into the
said family and entitled to remain therein.
(b) Unchallenged evidence was led to show the respondent
christened the appellant Afam Okeke
(c) Appellant was sued as Afam Okeke.
(d) Appellant for over 50 years of his life had lived
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CA)
in Simon Okeke’s compound.
(e) Respondent accepted she was directed by Ndimgbu
Community to grant residential land out of the estate of
Simon Okeke to the appellant.
(C) ERROR IN LAW
The learned trial Judge erred in law in granting the
respondent the declaratory and injunctive relief contained
in his judgment.
PARTICULARS OF ERROR
(a) All the respondent’s relief were wholly equitable in
nature.
(b) Equitable relief are not granted as a matter of course.
(c) Equitable relief are granted when the Court is satisfied
that a party is under any circumstance entitled to same.
(d) Equitable relief are not granted when they will be
inequitable to grant same.
(e) Equitable relief are not granted to a party who has
misconducted herself or placed herself in a position in
which she is no longer entitled to the equitable relief.
(f) The learned trial Judge speedily proceeded to grant the
equitable relief sought as if same were legal rights and
never considered whether under the particular
circumstances of this matter the respondent was still
entitled to same.
(D) ERROR IN LAW
The learned trial Judge
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erred in law in holding that the respondent was not guilty
or undue delay, laches and acquiescence in this matter.
PARTICULARS OF ERROR
(a) Appellant was born in 1952 by Ebele Okeke – widow of
Simon Okeke, respondent related with him as a brother and
sister for over fifty years before commencing this matter in
2007.
(b) The material issue was when respondent became aware
of the posturing of the appellant as a son of Simon Okeke –
answer over fifty years since birth.
(c) Respondent was inescapably late in pursuing her stale
claims.
(E) ERROR IN LAW
The learned trial Judge erred in law in holding that this suit
was properly constituted and properly before the High
Court.
PARTICULARS OF ERROR
(a) Appellant has a mother who claims to be a widow of
Simon Okeke through whom he was born into Simon
Okeke’s compound, this appellant’s mother was not a party
to this matter.
(b) Appellant has an elder sister Mrs. Nkechi Anazodo born
during the life and time of Simon Okeke. She too was not a
party to this suit same with appellant’s siblings all living in
Simon Okeke’s compound; none was joined as
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a party.
(c) That judgment of the Lower Court has not effectively
and effectually settled the issues relating to Ebele Okeke
and Simon Okeke and raised more problems than answers.
(F) ERROR IN LAW
The learned trial Judge erred in law in failing to hold that
appellant had been assimilated into Simon Okeke’s family.
PARTICULARS OF ERROR
(a) The custody of a child born out of wedlock follows that
of his mother.
(b) Appellant’s mother is a widow of Simon Okeke who
mourned him, participated in his burial and funeral rites.
(c) Appellant since birth till date has been living in Simon
Okeke’s house, known as Afam Okeke, grow up as Afam
Okeke, named as Simon Okeke’s son. It was inevitable
appellant had been assimilated into Simon Okeke’s family.
The learned trial Judge came to a wrong conclusion which
occasioned a substantial miscarriage of justice in this
matter.
(G) ERROR IN LAW
The learned trial Judge erred in law in holding that Section
42(2) 1999 Constitution of Nigeria as amended prohibiting
discrimination on grounds of circumstances of birth was
inapplicable to the facts and
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CA)
circumstances of this matter.
PARTICULARS OF ERROR
(a) Appellant did not bring himself into this world nor had
he any choice on the matter either.
(b) The judgment of the Lower Court amounted to total
discrimination against the appellant over circumstance of
birth.
(c) The relief granted the respondent amounted to total
homeless, hopelessness and unimaginable inequities
against the appellant totally forbidden by Section 42(2)
1999 Constitution of Nigeria as amended.
(d) The judgment of the learned trial Judge directly and
inescapably conflicted with the provisions of Section 42(2)
1999 Constitution of Nigeria as amended.”
The appellant, in order to activate the prosecution of the
appeal, was armed with the appellant’s brief of argument
dated 25th April, 2013 and filed on 2nd May, 2013. In it, B.
S. Nwankwo, Esq., of learned appellant’s counsel,
nominated four issues for the determination of the appeal
thus:
(a) Whether the learned trial judge was correct in declaring
the marriage between the deceased Simon Okeke and
Madam Mabel Eberechukwu Okeke void nor a declaration
when both were not parties before
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CA)
the High court and there was no claim or relief on same
neither was there a with claim for declaration that the
marriage between the deceased and respondent’s mother
was a statutory marriage as both parties had died?
(b) Whether the learned trial judge was correct in granting
the respondent the four equitable relief against the
Appellant?
(c) Whether the learned trial judge was correct in holding
that the Appellant was a complete stranger to the family of
Simon Okeke?
(d) Whether the learned trial judge was correct in holding
that Section 42(2) 1999 Constitution of Nigeria as amended
did not apply to the peculiar facts and circumstances of this
matter?
On her part, the respondent’s brief of argument, dated 5th
August, 2013 and filed on 6th August, 2013 was by order of
this Court, deemed as properly filed and served on 4th
April, 2017. Chief G. Oseloka Osuigwe, who prepared it,
seemed to have adopted the four issues nominated by the
learned appellant’s counsel for the determination of the
appeal. I am in agreement with learned counsel herein,
hence in the resolution of this appeal, I shall be guided by
the aforementioned four
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CA)
issues nominated by appellant’s counsel.
Issue 1
The learned appellant’s counsel contended that since the
respondent did not claim any relief in respect of the
customary marriage between Simon Okeke and Mrs. Mabel
Eberechukwu Okeke, it was wrong of the learned trial
judge to have voided the said customary marriage. He
furthermore, contended to the effect that since Mrs.
Eberechukwu Okeke, the appellant’s mother was not a
party to the action of the respondent, the learned trial
judge was in error to have decided that the case before him
could be effectually and completely determined in the
absence of the said appellant’s mother. He insisted that the
pronouncement by the learned trial judge, which nullified
the customary marriage between the late Simon Okeke and
the appellant’s mother, in the circumstances of this case
amounted to condemning the appellant’s mother who was
not joined as a party to the respondent’s action. He placed
reliance on Oloriode v. Oyebi (1984) 1 SCNLR 390,
Okafor v. Nnaife (1973) ECSLR.
Responding to issue 1, the respondent’s learned counsel
submitted that the learned trial
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judge merely made a finding of fact to the effect that the
customary law marriage which was celebrated between the
late Simon Okeke and the appellant’s mother, was null and
void. He also submitted that the learned trial judge was
justified in his finding being complained of, because the
same is borne out of the evidence placed before him and
that the appellate Court does not tamper or interfere with
findings of facts made by a trial Court which are borne out
of the evidence placed before that Court. He referred to
Nwakonibi & Ors v. Udeorah & Ors (2012) 50 NSCRQ
314 AT 334; Obibiani Brick v. ACB Ltd (1992) 1 NSCC
vol. 23 p. 428 at 469.
With respect to the non-joinder of the appellant’s mother as
a party to the respondent’s action, respondent’s learned
counsel submitted that the appellant’s mother was not a
necessary party and that the non-joinder of the appellant’s
mother was not fatal to the respondent’s action because the
action between the appellant and the respondent was
rightly determined by the learned trial judge. He referred
to Order 13 Rule 16 of the Anambra State High Court (Civil
Procedure)
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Rules, 2006; Ifeanyi Chukwu (Osondu) Ltd v. Soleh
Bonah Ltd (2000) 5 NWLR (pt. 656) 322; Okonkwo v.
Okagbue (1994) 12 SCNJ 89.
Resolution:
The learned trial judge, with reference to the customary
marriage between the respondent’s father – Simon Okeke
and the appellant’s mother Mrs. Eberechukwu Okeke, had
this to say at page 172 of the record of appeal, to wit:
“I shall now consider the validity of the marriage entered
into between the plaintiff’s father and the mother of the
defendant. I had earlier in my judgment held that the
marriage celebrated between the plaintiff’s father and her
mother was celebrated in accordance with the Marriage
Act. Mr. G. O. Osuigwe in his written address submitted
that any subsequent marriage contracted by Simon Okeke
during the subsistence of his marriage with the plaintiff’s
mother is null and void. I am wholly in agreement with
learned counsel for the plaintiff. See Section 33 of the
Marriage Act. I therefore find as a fact that the Customary
Marriage celebrated between the plaintiff’s father and the
defendant’s mother during the subsistence of the earlier
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marriage between the plaintiff’s father and mother is null
and void.”
Now, was the question of the validity of the customary
marriage between the late Simon Okeke – respondent’s
father and the appellant’s mother – Mrs. Mabel
Eberechukwu Okeke, an issue raised and ventilated upon
by the parties at the Court below? In order words, was the
issue of the validity of the customary marriage between
Simon Okeke and Mabel Eberechukwu Okeke, placed
before the Court below, for determination? In order to
answer these questions, it is necessary to have recourse to
and peruse the issues placed before the Court below, by the
parties and which were ventilated and canvassed by them,
for the Court’s determination, with respect to the
respondent’s action in that Court.
The appellant’s learned counsel in his final written address
at the Court below submitted four issues at pages 117 to
118 of the record of appeal which were ventilated upon
from pages 118 to 125 thereof whilst the respondent’s
learned counsel submitted four issues which were
canvassed at pages 126 to 135 of the record of appeal. It is
clear to
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me as crystals, that none of the issues formulated and
canvassed at the Court below by the parties herein,
bordered or touched upon the validity of the customary
marriage between Simon Okeke and Mabel Eberechukwu
Okeke. Hence, it is curious for the learned trial judge to
have found and come to the decision as he did at page 172
of the record of appeal, to the effect that the “customary
marriage celebrated between the plaintiff’s father and the
defendant’s mother during the subsistence of the earlier
marriage between the plaintiff’s father and mother is null
and void.”
I am of the considered opinion that in the circumstances,
the learned trial judge veered off the real issues raised and
placed before him for his determination which were
predicated on the respondent’s claim that had nothing to
do with the validity of the customary marriage celebrated
between the respondent’s father and the appellant’s
mother during the pendency of the earlier marriage
between the respondent’s parents. His Lordship’s
pronouncement to the effect that the aforesaid customary
marriage celebrated between the
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respondent’s father and the appellant’s mother, was null
and void, was clearly tantamount to a nullification of that
marriage, which was not part of the reliefs claimed or
prayed for by the respondent. Therefore, to my mind, the
opinion rendered on the said customary marriage by the
learned trial judge, was gratuitous as a father Christmas
would do and the Court is not a father Christmas.
Ekpeyong v. Effiong (1975) 2 SC 71 at 80 – 81;
Ezeakabekwe v. Emenike (1998) 11 NWLR (pt. 575)
529; Attor. Gen. Abia State v. Attor Gen. Federation &
Ors (2006) 16 NWLR (pt. 1005) 265 at 387.
In any event, that issue was not raised and placed before
the Court below for its determination. Abbas & Ors v.
Solomon & Ors (2001) 7 SC (pt. II) 45; (2001) 15
NWLR (pt. 735) 144; (2001) LPELR – 23 (SC).
Let me just say a word with respect to the submissions of
both counsel herein which touched on the non-joinder of
the appellant’s mother to the respondent’s action at the
Court below. The learned respondent’s counsel rightly
stated the law to the effect that non-joinder of a party to an
action does not vitiate the
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CA)
proceedings in that action. However, no Court has the
power to make a decision or a pronouncement which
adversely affects the interest of a third party who is not a
party in the action before the Court. Mrs. Ifeanyi Obiozor
v. Baby Nnamua (2014) LPELR – 23041 (CA).
Therefore, in the circumstances of the instant matter, since
the appellant’s mother was not a party to the respondent’s
action at the Court below, his Lordship, had no power to
have pronounced upon the validity of the customary
marriage celebrated between her and the respondent’s
father, to the effect that it was null and void. That was
unfair to the appellant’s mother. Hence, I resolve issue 1 in
appellant’s favour.
I shall take issues 2, 3 and 4 together. The thrust in the
submissions of the learned appellant’s counsel is that since
there is evidence to the effect that the appellant had lived
in the compound of the late Simon Okeke, to the knowledge
of the respondent, the latter had acquiesced and waived
her right to complain against the continued occupation of
the same compound with the appellant. He therefore
insisted that the respondent, not being
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CA)
in exclusive possession of the late Simon Okeke’s
compound in question, is now estopped from claiming
ownership of the said property. Furthermore, it is the
appellant’s contention that the appellant cannot be denied
his right to inherit the property of the late Simon Okeke, on
account of the circumstances of the appellant’s birth, by
virtue of Section 42(2) of the 1999 Constitution of the
Federal Republic of Nigeria. He placed reliance on the
decision of this Court in Mojekwu v. Ejikeme (2002) 5
NWLR (pt. 657) 402. He insisted that the Court below
was bound to have followed the decision in Mojekwu v.
Ejikeme (supra).
On his part, the respondent’s learned counsel submitted
that the mere fact that the appellant lives with his mother
in the compound in question is not tantamount to a waiver
of the respondent’s claim or assert her right over the
property in question. He insisted that the course of action
arose in this matter when the appellant began to lay his
adverse claim to the respondent’s property which was
donated to her at the instance of her uncles after her father
– Simon Okeke’s demise. He furthermore
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submitted that the findings made by the learned trial judge
at pages 175 – 176 of the record of appeal, were borne out
of the evidence proffered before him, hence the reliefs
sought by the respondent, were granted to her.
With respect to the applicability of Section 42(2) of the
1999 Constitution of the Federal Republic of Nigeria, to the
facts and circumstances of this case, the respondent’s
learned counsel submitted that it is not available to the
appellant and that since the appellant was born five years
after the death of Simon Okeke, the appellant could not
have become the son of the said late Simon Okeke
posthumously. He insisted that the appellant is a stranger
to the family of the late Simon Okeke.
Resolutions:
The learned trial judge at pages 168 – 169 of the record of
appeal made the following findings of facts which are
indisputable, inter alia:
“There is common ground between the parties that the
compound in dispute in this case originally belonged to late
Simon Okeke who died intestate on the 14th day of April,
1947. The parties to this suit are also in agreement that
late Simon Okeke in his life time
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CA)
married Mrs. Christiana Okeke and that the said marriage
was blessed with two children namely Mrs Cecilia Nonyelu
Orizu now late and the plaintiff. The two children of the
marriage were born in the life time of late Simon Okeke.
Exhibit ‘A’ tendered in this case is a Marriage Certificate
issued to late Simon Okeke and Mrs. Christiana Okeke after
the celebration of their marriage in 1924. Exhibit ‘B’ is a
Letter of Administration issued to Christiana Okeke and
Cecilia Nonyelu Orizu to administer the estate of late
Simon Okeke. The parties to this suit are also in agreement
that the defendant in this case was born by Mrs. Ebele
Okeke after the death of late Simon Okeke in 1952. Exhibit
‘D’ and ‘D’ tendered in this case is the judgment of
Supreme Court of Nigeria holden in Jos in Suit No.
JD/27/53 between Christiana Nnunwa Okeke and Anor. And
Jonathan Okeke a nephew to late Simon Okeke.
In Exhibit ‘J’, the trial Judge made a finding of fact relying
on the evidence of one Chukwuanu Okeke that on the death
of late Simon Okeke his brother Chukwuanu Okeke and
other members of his family who should under
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CA)
native law and custom inherit his estate since he died
without any male issue decided to give his entire estate to
the plaintiffs.”
His Lordship, thereafter at pages 174 – 176 of the record of
appeal, after evaluating the pieces of evidence proffered
before him found and held thus:
“In my view, the crucial question to be decided in this case
is who as between the plaintiff and the defendant is entitle
to inherit the estate of late Simon Okeke. The defendant
was born five years after the death of Simon Okeke. The
plaintiff on the other hand is the daughter of Simon Okeke.
The defendant has no blood link with Simon Okeke. It is my
view relying on the Court of Appeal decision in Muojekwe
vs. Ejikeme (supra) that the plaintiff is the heir and
successor in title to late Simon Okeke and that the
defendant is a complete stranger to that family. I again find
as a fact that the plaintiff is the rightful person to inherit
the compound of late Simon Okeke.
In his written address, Mr. B. S. Nwankwo learned counsel
for the defendant submitted that the defendant in the last
fifty years of his life has been assimilated into the family of
Simon
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CA)
Okeke and that to hold otherwise will run foul of the
Constitution of Nigeria forbidding discrimination against
him on grounds of circumstances of his birth. Mr.
Nwankwo also submitted that the plaintiff is guilty of
laches and acquiescence in asserting her right having slept
over her rights for over 52 years. He cited the case of
Ojukwu vs. Ojukwu (2000) 1 NWLR part 667 page 65.
Mr. G. O. Osuigwe in reply referred the Court to the
Supreme Court decision in Okonkwo vs. Okagbue (1994)
12 SCNJ 89, where the Supreme Court held that it is the
sacred and constitutional duty of the Supreme Court to give
decisions in cases that come before it without fear or
favour no matter what manner of persons are involved. The
Court also held it has not been and will never be the
yardstick for the Supreme Court to take into consideration
extraneous matters such as the general consequences of its
decision on individuals or a class of persons who are not
before it, before coming to its decision. I am wholly in
agreement that the views expressed by the Supreme Court
in the above case should also be applied by the Lower
Courts as the yardstick for dispensing justice. It is
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7) LP
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CA)
immaterial to me the consequences that this judgment may
have on the defendant or those who share similar fate. I do
not see anything unconstitutional in holding that the
defendant is not member of the family of the late Simon
Okeke. The defendant is not a child born by Simon Okeke
outside wedlock. He was born five years after his death. He
cannot therefore claim that he was denied a right of
inheritance to the estate of late Simon Okeke owing to
circumstances of his birth. Mr. Nwankwo also raised the
issue of laches and acquiescence in his written address.
The dispute in this case is over the estate of late Simon
Okeke. Exhibit ‘B’ shows that as far back as 1951, the
plaintiff’s mother was granted letters of Administration to
administer the estate of late Simon Okeke. Exhibit ‘E’
shows that the plaintiff has been successfully warding off
trespassers from the said estate. In 1999, when there was a
dispute between the plaintiff and Jonathan Okeke over part
of the estate of late Simon Okeke, the defendant did not
assert his right over the said estate. Exhibit ’H’ again
shows that in 1994, the plaintiff in exercise
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7) LP
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CA)
of his right as heir to the estate of late Simon Okeke wrote
to the defendant through her solicitor warning him not to
interfere with the plaintiff’s quiet enjoyment and
possession of her late father’s property.
It would appear that the cause of the present action was
the claim by the defendant in 2005 to the plaintiff’s father’s
compound. I agree with Mr. Osuigwe that the plaintiff’s
right to action accrues the moment the defendant begins to
raise adverse claim to the plaintiff’s right to inherit his
father’s compound and that it is for the defendant to show
when he started to deny the title of the plaintiff to his late
father’s estate. I also agree with him that the issue is not to
when the defendant came to live in the compound of Simon
Okeke but when he started to lay claims and adverse to
that of the plaintiff . The plaintiff cannot in the
circumstances of this case be said to be an indolent
litigants.”
Upon my perusal of the pieces of evidence, both parole and
documentary exhibits, placed before the learned trial
judge, I am unable to impeach any of the findings of facts
made by him and the
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CA)
conclusion he arrived at in his judgment. I have considered
the contention of the appellant to effect that the doctrine of
laches and acquiescence was available to the appellant
against the respondent who had allowed the former to stay
in the late Simon Okeke’s compound with his mother since
his birth in 1952. The doctrine of laches and acquiescence
was explained by Onyeama, JSC in Ukwa & Ors v. Awka
Local Council & Ors (1965) All NLR 364, thus:
“The doctrine of laches is that a person entitled to land
should not stand by and allow another person who thinks
the land is his to make improvements, and assert his right
to the land; he wants to take the improvements and cheat
the other man of the expense he is making.”
In the circumstances of the instant matter, apart from
merely residing in the compound of the late Simon Okeke,
with his mother, the appellant has not shown that he made
some improvements or erected a building on the said
compound and that the respondent looked the other way
and tolerated him. It is clear to me as rightly found by the
learned trial judge, that the very moment the respondent
discovered that the
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7) LP
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CA)
appellant began to lay his adverse claim to the compound
in question, she first reported the matter to the Ndimgbu
Community Development Union which led to Exhibit ‘G’.
Thereafter, since the appellant did not respect the decision
in Exhibit ‘G’, the respondent caused Exhibit ‘H’ to be
issued to the appellant. And with the appellant being
adamant and recalcitrant in his adverse claim to the
compound in question, the respondent approached the
Court below, seeking legal redress against the appellant. I
am of the considered and firm opinion that the respondent
cannot be said, in the circumstances to have slept and
snored over her right to the inheritance of her father’s
property.
In Akanni & Ors. v. Makanjuola & Ors (1978) NSCC
526, the Supreme Court held to the effect that, as soon as
the respondents noticed a building construction going on
the land in dispute, they asserted their right to ownership
and subsequently filed an action against the appellants,
hence the equitable defences of laches, acquiescence and
standing by were not available to the appellants. The
situation in the instant case is even worse
27
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7) LP
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CA)
where the appellant only merely resided with her mother
on the compound in dispute and no more, yet when he
began to lay his adverse claim to the compound, the
respondent, with her eyes well open, did not lose any sleep
in challenging the adverse moves by the appellant.
Therefore, equity in this instance, aids the vigilant and not
the indolent. Hence, equity is on the side of the respondent
and against the appellant.
In any event, the law is well settled to the effect that in
order for a plea of laches and acquiescence to be
considered by the Court, the facts in support of the plea
must be clearly pleaded by the defendant in his statement
of defence. Isaac v. Imasuen (2016) 1 SCNJ (pt. II) 256.
I have perused the averments in the appellant’s statement
of defence at pages 26 – 29 of the record of appeal, and it is
clear to me, as crystals that the appellant pleaded no facts
bordering on the question or plea of laches and
acquiescence. Therefore, it was too late in the day for the
appellant’s counsel to have raised and canvassed
arguments on the said plea in his final written address at
the Court below.
The appellant’s
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7) LP
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CA)
counsel also submitted that the doctrine of estoppel by
standing by was available to the appellant against the
respondent. Indeed, the doctrinal on plea of estoppel is part
and parcel of our evidence law as encapsulated in Section
169 of the Evidence Act, 2011.
In Sunday Ofoma & Anor v. Anthony Ifeanyi Obinwe &
Anor CA/E/481/2013 decided on 15th July, 2016 reported
in (2016) LPELR – 41042 (CA); I had cause to espouse on
the doctrine of estoppel, thus:
“In law, estoppel is an admission or something which the
law views as equivalent of an admission. By its very nature,
it is so important and conclusive that the party whom it
affects will not be allowed to plead against it or adduce
evidence to contradict it. Yoye v. Olubode (1974) All
NLR 657; Ukaegbu v. Ugoji (1991) 6 NWLR (pt. 196)
127; Koiki v. Magnusson (2001) FWLR (pt. 63) 167. It
is a common law principle which has gained statutory
acceptance in Nigeria, such as Section 169 of the Evidence
Act No. 18 of 2011. It forbids a person or party who having
shown that he agrees with a state of affairs, to later turn
round and disclaim his act or omission. Hence both in
common and
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CA)
statutory law, such conduct is not permitted. For example
in Section 151 of the Evidence Act, 2004 which is in pari
material with Section 169 of the Evidence Act, 2011, the
use of the phrase that:
“neither he nor his representative in interest shall be
allowed” is emphatic. This was explained better by the
Apex Court in Ude v. Osuji (1998) 10 SCNJ 75 thus:
“The principle of estoppel by conduct is that where one
party has, by his words or conduct, made to the other a
promise or assurance which was intended to affect the
legal relation between them and to be acted upon
accordingly, then once the other party had taken at his
word and acted on it, then the one who gave the promise or
assurance cannot afterwards be allowed to revert to the
previous legal relations as if no such promise or assurance
has been made by him. He must accept their legal relation
as modified by himself even though it is not supported in
point of law by any consideration, but only by his word or
conduct. SeeCombe v. Combe (1951) 1 All ER 69 at
770.”
There are principally, two kinds of estoppel. In Osunrinde
& Ors v. Ajamogun & Ors (1992) 7
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7) LP
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CA)
SCNJ 79; (1992) LPELR – 2819 SC at 39, his Lordship,
Ogundare, JSC (now of blessed memory) succinctly stated,
to wit:
“Now, there are two kinds of estoppel by record inter
partes or per rem judicatam as it is generally known. The
first is usually referred to as ‘cause of action estoppel’ and
it occurs where the cause of action is merged in the
judgment, that is transit in rem judicatam. There is
however, a second kind of estoppel inter partes and this
usually occurs where an issue has earlier on been
adjudicated upon by a Court of competent jurisdiction and
the same issue comes incidentally in question in any
subsequent proceedings between the same parties (or their
privies); in these circumstances. “issue estoppel arises.”
Furthermore, on the effect of estoppel, his Lordship, at
page 46 of the report, stated:
“The general rule of law undoubtedly is that no person is to
be adversely affected by a judgment in an action to which
he was not a party, because of the injustice in deciding an
issue against him in his absence. But this general rule
admits of two exceptions, one is that a person who is in
privity
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CA)
with the parties, a “privy” as he is called is bound equally
with the parties, in which case, he is estopped by res
judicata: the other is that a person may have so acted as to
preclude himself from challenging the judgment in which
case he is estopped by his conduct.”
Indisputably, for the doctrine of estoppel to operate in any
particular case, it must be established that,
(i) The parties (or their privies as the case may be) in the
previous case are the same as in the present case;
(ii) The issues and the subject matter or res litigated upon
in the previous case is the same as in the subsequent or
present case;
(iii) The previous action must have been determined by a
Court of competent jurisdiction;
(iv) The said decision in the previous case, must have finally
decided the issues between the parties.
The four fold requirements for the applicability of the
doctrine of estoppel, must co-exist, such that the failure of
one damnifies its efficacy.”
Furthermore, the law is well settled to the effect that for a
plea of estoppel to be entertained and considered by the
Court, it must be pleaded in the
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defendant’s statement of defence at the trial Court and if
not, it cannot be raised for the first time, at the appellate
Court. Gbemisola v. Bolarinwa (2014) 3 SCNJ 166.
Upon my perusal of the averments in the appellant’s
statement of defence at pages 26 – 29 of the record of
appeal, I find nothing therein bordering on a plea of
estoppel. Hence, the arguments canvassed by the
appellant’s counsel with respect to the plea of estoppel, at
pages 10 – 11 of appellant’s brief of argument, paled into
insignificance and accordingly discountenanced by me. In
sum, I am of the considered and firm opinion that the
equitable defences/pleas of laches, acquiescence and
estoppel are not available to the appellant and I so hold.
Now, let us examine the vexed issue of whether or not the
learned trial judge was right when he came to the decision
to the effect that since the appellant was born in 1952, five
years after the demise of Simon Okeke in 1947, the
appellant was a stranger to the family of the late Simon
Okeke. That is, the appellant could not have been a
posthumous son of the late Simon Okeke, hence the former
cannot inherit
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7) LP
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CA)
anything from the late Simon Okeke. A similar situation
with respect to Nnewi native law and custom pertaining to
inheritance of a dead man’s property by four children borne
by his widow after his demise had arisen in the unreported
appeal No. CA/E/115/2000 between Benedict Ojukwu v.
Gregory Agupusi and Anor, decided by this Court on
22nd January, 2014.
The summary of the facts of the case as stated and agreed
by the parties in their respective briefs are that the
Appellant is the Head of the Ojukwu Family of Okpuno,
Ebenator, Uruagu Nnewi, Anambra State. The 1st
Respondent is also of Okpuno Ebenator, Uruagu, Nnewi
extraction and from the same larger Dunuka Family with
the Appellant. The 2nd Respondent was the wife of the late
Christoper Ejimkonye Ojukwu the yonger brother of full
blood of the Appellant. The said Christoper Ojukwu died in
1987, and the 2nd Respondent had three surviving
daughters for the deceased at the time of his demise. After
the death of her husband, the 2nd Respondent begat four
children (two males and two females).
It was the case of the Appellant that the 1st Respondent
impregnated the 2nd Respondent which resulted in
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the birth of the four children. However, the Respondents
while acknowledging the fact of the 2nd Respondent giving
birth to those four children posthumously for Christopher
Ojukwu, nevertheless, denied knowledge of who their
biological father is/was even though same is a fact
peculiarly to the knowledge of the 2nd Respondent and the
burden of proof was on her.
Parties joined issues on whether it was abominable or
repugnant to natural justice or good conscience for
children (issues) to be credited to the deceased. The
learned trial judge held that the children born long after
the death of their mother’s late husband were children of
the deceased and that same was not repugnant or
abominable. He further held that from the totality of the
facts before him there was no marriage between the
Respondents and that the 2nd Respondent and that the four
children were/are still members of the Ojukwu family by
Nnewi Native law and Custom, contrary to the claim of the
Appellant which was dismissed in its entirety.
My Lord, I. I. Agube, JCA in his lead judgment at pages 22 –
28 thereof held, thus:
“In Nwachinemelu Okonkwo vs. Mrs. Lucy
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CA)
Udegbunam Okagbue & 2 Ors (1994) 9 NWLR (pt.
308) 301, the Supreme Court in an appeal that emanated
from this Honourable Court in a case from the High Court
of Anambra State, Onitsha Judicial division where the
custom of the Onitsha people that enabled a woman to
marry another woman for purposes of raising children for
her deceased brother fell for consideration.
Ogundare, JSC at page 343 Paragraph H to page 344
Paragraphs A – B of his contribution to the lead judgment
of Uwais JSC wherein Wali, Ogundare, Mohammed and
Adio J. JSC concurred, reasoned thus:-
“The institution of marriage is between two living persons.
Okonkwo died 30 years before the purported marriage of
the 3rd defendant to him. To claim further that the children
the 3rd defendant had by other man or men are the
children of Okonkwo deceased is nothing but an
encouragement to promiscuity. It cannot be contested that
Okonkwo (deceased) could not be the natural father of
these children. Yet 1st and 2nd defendants would want to
integrate them into the family. A custom that permits of
such a situation gives licence to immorality and cannot be
said to be in consonance with
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7) LP
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public policy and good conscience. I have no hesitation in
finding that anything that offends against morality is
contrary to public policy and repugnant to good conscience.
It is in the interest of the children to let them know who
their true fathers are (were) and not to allow them live for
the rest of the lives under the myth that they are children
of a man who had died many decades before they were
born.”
I hold the view that the observations of the learned justice
of the Apex Court apply to the facts and circumstance of
this case where a man who died in 1987 could still father
four children long after his death and that the learned trial
judge had no rationale basis for distinguishing our present
case from Okonkwo v. Okagbue (supra). Ogundare JSC
agains in the course of his contribution also alluded to Edet
v. Essien (1932) 11 NLR 47 per Cecil Carey, J. who held
in a case where a man claimed the child of his former wife
who had left and married another husband who
impregnated her, on the ground that the divorced wife had
not refunded the bride price; that such a custom is
repugnant to natural justice equity and good conscience, to
be rightly
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decided, and went on to reflect on Nwaribe v. President
Registrar, Eastern Orlu, 8 ENLR 24 which he held that
if Egbuna, J. S. Decision was understood to uphold the local
custom of Otulu which is akin to the Nnewi Custom, now in
contention, then it was wrongly decided.
With the greatest respect to the learned counsel to the
respondent and indeed the learned trial judge, the decision
of the learned Ogundare, JSC in the Okonkwo v. Okagbue
case was not obiter but was part of the ratio decidendi
which was founded on settled principle of our customary
jurisprudence that any custom which is repugnant to
natural justice equity and good conscience or contrary to
public policy or any law in force should not be enforced but
should be struck down.
Before the decision of the learned trial judge which is now
on appeal, there had been a host of decided cases some of
which I shall make bold to list hereunder, on this principle
of our law. In the celebrated case of Mariyam v. Sadiku
Ejo (1961) NRNLR 81; it was held that the respondent
was not entitled to custody of children the appellant/woman
had for another man fifteen months after she last had any
relationship
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with the respondent her former husband.
Meribe v. Egwu (1979) 3 S.C. 23 which was cited by the
learned counsel for the appellant also declared a custom
which permitted marriage of one woman to another (in
which the children of such marriage would not be sure of
their natural father) to be repugnant to natural justice,
equity and good conscience. See further Helen Odigie v.
Iyere Aika (1985) NBCL 51.
On the whole I shall commend – Dokmor Macleans v.
Inlaks (1980) 8 – 11 S.C 1 at 24, Odugbo v. Abu
(2001) 14 NWLR (pt. 732) S.C Eporokun v. University
of Lagos (1986) 4 NWLR (pt. 34) 162 S.C and Global
Trans Oceanica S. A. vs. Free Ent. Nig. Ltd (2001)
FWLR (PT. 40) 1706, which variously held that the
Supreme Court is the ultimate or highest Court in the land
and all previous decisions of the Court are absolutely
binding upon all other Courts whether the decision is
correct or not until the Apex Court over rules its self in a
judgment given per incuriam.
Standing by the previous decisions of the Supreme Court
which have not been prove to be perverse or to have been
decided per incuriam, obviates stability and enhances
consistency and
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7) LP
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coherent corpus juris and presents continuity and manifest
respect for the past decisions in our legal order. Apart from
ensuring equality of treatment of litigant before the Courts,
it spares the judges the stress and drudgery of re-
examining rules and principles of law thereby affording the
law some degree of predictability and stability of the
existing legal order.
It is upon the foregoing premises, that I shall adopt the
dictum of Ogundare JSC in the Okagbue case as well as
Oyewunmi v. Ogunsesan (1990) 2 NWLR 182; where he
stated that: “In deciding whether a custom is repugnant to
natural justice, equity and good conscience or contrary to
public morality or policy, involves the value judgment of the
judge/Court which should be objectively related to
contemporary mores, aspirations, expectations and
sensitivities of the people of this country and the consensus
opinion of civilized international community which we
share.” There is no doubt that with improved technological
developments we are now in a global village and
accordingly our cultures must reflect these changing times
yet without compromising our natural values and ethos.
40
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CA)
Talking of international community, the so called civilised
world are now encouraging same sex marriage and
unnatural behaviours but we need not copy them to our
detriment as it would appear that we are even now paying
the bitter price of modernity and westernization.
Before rounding up on this issue, let me say that the
learned counsel for the respondent was right to have
submitted that the appellant did not pray for any relief
declaring the custom repugnant. Even then it has been held
severally in Okonkwo v. Okagbue and other cases of
similar facts that the issue of repugnancy of a custom need
not be pleaded but can be raised in the course of address
by counsel as it is a matter of law. The Court can also raise
it suo motu since it is enjoined to take same into
consideration and apply it in determining whether a
particular custom is applicable. See per Uwais, JSC at page
3121 paras E – G;Peanok Ltd v. Hotel Presidential Ltd
(1982) S.C 1, Ashogbon v. Oduntan (1935) 12 NLR 87.
At page 345 Paragraph G of the Okagbue case, per
Mohammed, JSC on this point posited that once a custom
has been challenged in a Court of law by anyone who is
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interested or adversely affected by its application and a call
has been made to examine whether it offends natural
justice, the Court would pursue such complaint in order to
establish whether the custom is inconsistent with sound
reason and good conscience.
Uwais JSC in his lead judgment at page 323 agreed that:
“Occasions have however arisen where the Courts had
found it necessary to declare certain customs repugnant to
natural justice, equity and good conscience or against
public policy and morality.” He then went to cite the dictum
of Osborne C. J. in Lewis v. Bankole (1908) 1 NWLR 81
and enumerated cases like Re Effiong Okon Atta (1931)
10 NLR 65; Re Kwaku Dumptery (1930) 1 WACA 12,
Edet v. Essien (supra) 1 Amachree v. Kalio (1914) 2
NWLR 108, Nzekwu & Ors v. Nzekwu & Ors (1989) 2
NWLR (pt. 104) 373 at 895 and Eugene Meribe v.
Joshua C. Egwu (supra) where Madarikan, JSC had held:-
“In every system of jurisprudence known to us one of the
essential requirements for valid marriage is that it must be
the union of a man and woman thereby creating the status
of husband and wife. Indeed, the law governing any decent
society
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7) LP
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should abhor and express its indignation of a “woman to
woman” marriage, and where there is proof that a custom
permits such an association, the custom must be regarded
as repugnant by virtue of the proviso to Section 14 (3) of
the Evidence Act and ought not to be upheld by the Court.”
I believe the dictum of Madarikan, JSC and others earlier
cited have put paid to the contentions of the learned
counsel to the respondent that there was no prayer for the
custom to be declared repugnant to natural justice, equity
and good conscience and the erroneous decision by the
Court that the Nnewi custom which permits wives to have
children posthumously for their husbands is not repugnant
to natural justice. I hold that the custom of Nnewi people
which allows wives of deceased husbands to have
posthumous children for their late husbands is not only
repugnant to natural justice, equity and good conscience
but contrary to public morality and policy in that it
encourages prostitution and promiscuity apart from
stigmatizing the children who shall be perpetually insure of
their biological fathers by the circumstances of their birth
as in this
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case.”
In effect, the Nnewi native law and custom which permitted
widows to have children posthumously, in the name of their
deceased husbands, was held to be not only repugnant to
natural justice, equity and good conscience but aversed to
public morality and policy because it encourages wanton
prostitution and promiscuity by such widowed wives. The
implication is horrendous to the effect that children who
are products of such illicit sexual activities by their mothers
will have the notion of a person who is not their biological
father as being their father, but who, in fact is not.
Again, back to the instant case, I am in complete
agreement with the decision of the learned trial judge at
page 175 of the record of appeal to the effect that since the
appellant was born five years after the demise of Simon
Okeke, he cannot lay claim to a right of inheritance to the
estate of the late Simon Okeke nor can the appellant
contend successfully that he was denied his right of
inheritance to the estate of late Simon Okeke because of
the circumstances of his birth. It is up to the appellant and
his siblings to demand from their mother, who their real
and
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biological fathers are, because their inheritance lay only to
the estate of their real and biological fathers and not to the
estate of their make-belief father – Simon Okeke, who
predeceased their conception and births.
With respect to the appellant’s contention that he was
denied his right to inheritance of the estate of late Simon
Okeke and that Section 42(2) of the 1999 Constitution of
the Federal Republic of Nigeria, as amended, was
applicable to his situation, it is clear to me that his
contention is tenuous. This is because of the finding of the
learned trial judge, which I have already affirmed, earlier in
this judgment, to the effect that the appellant has no blood
link with the deceased Simon Okeke, hence he cannot
complain that because of the circumstances of his birth, he
was denied his right to the estate of Simon Okeke, who was
not his biological father. The appellant in his ipse-dixit,
under cross- examination at page 158 of the record of
appeal, was emphatic when he stated, inter alia:
“I do not know the name of my biological father. The
plaintiff is the biological daughter of late Simon Okeke.”
And in
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another breadth, the appellant said at same page 158 of the
record of appeal to wit:
“The compound in dispute in this case originally belonged
to late Simon Okeke who is also my father.”
I only need say that the fact that the appellant lived with
his mother on the premises in question, did not make him
to have metamorphosed to being a son of late Simon Okeke
who had died five years prior to the birth of the appellant,
whose mother should have told him, who his real and
biological father is. Certainly not Simon Okeke.
I should say that in appropriate circumstances, the
applicability of Section 42(2) of the 1999 Constitution
(supra) shows up where for example, female children are
denied their right to inheritance of the estate of their
deceased father. Such instances which had to do with the
notorious and nebulous Nnewi native law and custom had
reared its ugly head in several cases before which came to
this Court on appeal. One of such cases is the most recent
unreported Appeal No. CA/E/145/2012 between Mr. Ubaka
Ugbene v. Cecelia Ugbene & Ors, decided on 9th
December, 2016. In that case, the respondents who were
the wife and
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female children respectively, of their deceased father –
Benjamin Ugbene were being denied their right to the
inheritance of their husband/father’s estate because
according to Egede native law and custom, females or
women do not inherit the estates of their deceased father.
My learned brother, Ignatius Igwe Agube, JCA in his lead
judgment at pages 39 – 42, re-stated the law thus:
“The learned counsel for the Respondent(s) on this point
has rightly cited the dictum of Ogunbiyi, JSC in the case of
Ukeje v. Ukeje (2014) 11 NWLR (pt. 1418) 384 at 408
paras. C – E where the erudite Law Lord settled the issue
of female inheritance from the estate of their intestate
father by holding any such Igbo Custom which disentitles
female children from inheriting their deceased father’s
estate in conflict with Section 42(1) of the Constitution of
the Federal Republic of Nigeria and therefore null and void.
In that case which facts are almost similar to the one at
hand, the learned Justice of Apex Court held thus:-
“No matter the circumstances of the birth of a female child,
such a child is entitled to an inheritance
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from her late father’s estate. Consequently, the Igbo
customary law which disentitles a female child from
partaking in the sharing of her deceased father’s estate is
in breach of Section 42(1) and (2) of the Constitution a
fundamental right, provision guaranteed to every Nigerian.
The said discriminatory customary law is void as it conflicts
with Section 42(1) and (2) of the Constitution.”
That Section of the Constitution for the avoidance of doubt
stipulates that:
“42(1) A citizen of Nigeria of a particular community,
ethnic group, place of origin, sex, religion or political
opinion shall not, by reason only that he is such a person –
(a) Be subjected either expressly by, or in the practical
application of any law in force in Nigeria or any executive
or administrative action of the government, to disabilities
or restrictions to which citizens of Nigeria of or other
communities, ethnic groups, places of origin, sex, religions
or any privilege or advantage that is not accorded to
citizens of Nigeria or other communities, ethnic groups,
places of origin, sex, religions or political opinion.
(2)No citizen of
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Nigeria shall be subjected to any disability or deprivation
merely by reason of the circumstances of his birth.”
By the above provisions of the Constitution of the Federal
Republic of Nigeria, 1999 (as amended) the custom of the
Egede people and of Igbos as a whole which discriminates
against the children of Benjamin Ugbene from inheriting
their father’s estate in the property in dispute on ground of
sex or gender is inconsistent with the Constitution apart
from being repugnant to natural justice, equity and good
conscience and the current public policy of this nation.
I was minded in the case of Felicia Ngozi Okonkwo v.
Benjamin Aforka Okonkwo & 5 Ors (2014) 17 NWLR (pt.
1435) 18 at 54 paras. C – G; where a childless widow was/is
prevented to inherit as much as his male intestate spouse
by Section 120(1)(b) of the Administration and Succession
(Estate of Deceased’s Person) Law of Anambra State, 1991,
to hold that to the extent that it discriminates or
dichotomises between male and female intestate spouses, it
is inconsistent with Section 42(1) and indeed (2) of the
Constitution of the Federal Republic of Nigeria, 1999
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(as amended). In the instant case, the 1st respondent even
has two children but she is precluded by the custom of
Egede people from inheriting her husband’s share of her
father-in-law’s estate along with her children on ground of
gender. To the extent of that discrimination on the ground
of her status as wife of customary marriage if at all, that
custom is void and of no effect whatsoever.
On this ground alone, this issue shall be resolved in favour
of the respondents and indeed this appeal ought to be
dismissed as the respondents have proved their interest in
the disputed property on the preponderance of evidence.
However, if we shall go by the authorities of Falomo v.
Onakanmi (2005) 11 NWLR (pt. 935) 126 at 158 (CA);
Uchendu v. Ogboni (1999) 5 NWLR (pt. 603) 470;
Lawal v. Olufowobi (1996) 12 SCNJ 376; Eze v. Atasie
(2000) 10 NWLR (pt. 676) 470; Onwuama v. Ezeokoli
(2002) 5 NWLR (pt. 760) 353 at 367 and Kodilinye v.
Odu (1935) 2 WACA 336; the respondents had pleaded
and given uncontradicted evidence as well as tendered
Exhibit A and B which were to the effect that Benjamin
Ugbene and Godwin Ugbene were Joint Lessees of the
Building
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Lease dated 16th January, 1961 Registered as No. 8 page 8
Volume 263 at the Lands Registry Enugu. (See page 23 – 25
of the Records). At pages 26 – 27A of the Records, it is
shown that on the 17th day of August, 1976 the appellant
re-registered the same building Lease as No. 62 at page 62
in Volume 936 of the Lands Registry Enugu in the name of
Godwin Ugbene as the sole owner of the said property.
No reasonable explanation has been offered for the said
fraudulent registration which was done behind the
successors-in-title of his late brother Benjamin Ugbene. The
piece of land was not land purchased by the Appellant but
by inheritance from the appellant and his late brother.
Accordingly, even if the term of years expired it ought to be
renewed in the names of the appellant and either the wife
or children of Benjamin as Joint Owners.
Having not denied the fact that the 2nd and 3rd
respondents and indeed the 1st were the biological children
and wife of the late Benjamin Ugbene, the respondents
proved their title and interests to the said property to
warrant judgment being entered in their favour. The
respondents on the strength of their
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case established their respective rights as the only defence
the appellant had was the custom of Egede people which I
have declared null and void. I refuse to dismiss the claim of
the respondents as the learned trial judge was not in error
to have given the judgment.
The learned counsel for the appellant must be deluding
himself to have submitted that the respondents did not
place any evidence whatsoever before the Court below. On
the contrary there was over whelming evidence upon which
the Court acted to give judgment in favour of the
respondents.”
My Lord, Helen Moronkeji Ogunwumiju, JCA, in agreement
with the lead judgment (supra) had this to say, to wit:
“I have read the erudite and exhaustive judgment just
delivered by my learned brother IGNATIUS IGWE AGUBE
JCA. I am in complete agreement with his reasoning and
conclusion that the appeal has no merit and should be
dismissed. I will add a few words. The respondents in this
appeal are the wife and female children of one late
Benjamin Ugbene. The property in dispute was inherited by
late Benjamin and his brother Ubaka Ugbene. The
argument of the appellant is that in the first
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instance, the 1st respondent as plaintiff had no locus under
customary law of the Igbos to challenge his actions in
respect of the family property which he had surreptitiously
appropriated to his own sole use. Appellant also argued
that the 2nd and 3rd respondents as females children of his
late brother could not inherit his share of the property in
dispute because of the Igbo custom which forbids women
children from inheriting from their father any landed
property. I share the view of my learned brother that the
biological children of Benjamin Ugbene have a right in the
estate of their grandfather. The type of anachronistic
custom being promoted by the appellant for excluding the
2nd and 3rd respondent from enjoying part of their
grandfather’s property which devolved on their father is
the Igbo custom which disentitles female children from
inheriting their deceased father’s estate where their father
died intestate. Ogunbiyi JSC in Ukeje v. Ukeje (2014)
11 NWLR pt. 1418 page 384 at 408 put paid to that
obnoxious custom by declaring same in conflict with S.
42(1) of the Constitution. The customs of Egede people and
of the Igbos in general which seek
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to discriminate against women in any situation on account
of their sex or gender is in my humble view that which not
only run foul of the Constitution but is repugnant to natural
justice, equity and good conscience and has no place in the
modern society.”
And in my own modest contribution, I said, inter alia:
“I have had the advantage of reading before now, the draft
of the judgment rendered by my learned brother –
IGNATIUS IGWE AGUBE, JCA . His Lordship,
characteristically and meticulously resolved all the issues
thrown up in this appeal, to my satisfaction.
By virtue of the provisions of Section 42(1) (a) (b) & (2) of
the 1999 Constitution of the Federal Republic of Nigeria, as
amended, read together with Section 18(3) of the Evidence
Act, 2011; the Egede custom which the appellant prided
himself on, which sought to disentitle the female children
from inheriting their deceased father’s property, cannot be
a thing of pride in the 21st century Nigeria. Such stone age
custom can no longer hold sway because it is not in
consonance with natural justice, equity and good
conscience. This position has been well settled
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beyond peradventure by the Supreme Court in Ukeje v.
Ukeje (2014) 11 NWLR (pt.1418) 384 at 408 and the
unreported decision of this Court in CA/E/227/2014 COL.
DR. G. O. EMODI RTD & 2 ORS v. NNAEMEKA
FIDELIS EMODI, delivered on 17th April, 2015. Further
see Mojekwu v. Mojekwu (1997) 7 NWLR (pt. 512)
283; Motoh v. Motoh (2010) LPELR – 8643 CA). It is
unthinkable, if female children chose or elected to be born
as female children. So, why should they be disadvantaged
on account of the circumstances of their birth? Even if their
parents, on account of increased scientific knowledge chose
that they be born as female children, then they (the
parents) were mindful of the fact and boundless joy that a
child is a child, hence no child can be inflicted with a
disadvantage that the child did not bargain for.”
I think that I should now draw the curtain on this appeal. I
am satisfied that issues 2, 3 and 4 be and are each resolved
against the appellant. In effect, the appeal succeeds in part
only, with respect to issue 1, but largely stands dismissed
on issues 2, 3 and 4. And to that extent only, the judgment
of M. I. Onochie, J., in re Suit No.
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HN/6/2007 delivered on 29th June, 2012, is affirmed.
Hence the four orders made by his Lordship, in favour of
the respondents are each hereby affirmed.
Cost of N100,000.00 awarded in favour of the respondent,
against the appellant.
IGNATIUS IGWE AGUBE, J.C.A.: I have had the privilege
of reading in draft the comprehensive Leading Judgment of
my Learned Brother, TOM SHAIBU YAKUBU, JCA. I humbly
adopt same as mine.
I am satisfied that Issues 2, 3 and 4 be and are each
resolved against the Appellant. In effect, the Appeal
succeeds, in part only, with respect to Issue 1, but largely
stands dismissed on Issues 2, 3, and 4. And to that extent
only, the judgment of M. I. Onochie, J. in re Suit
No.HN/6/2007 delivered on 29th June, 2012, is affirmed.
Hence the four orders made by his Lordship, in favour of
the Respondents are each hereby affirmed.
Costs of N100,000.00 are awarded in favour of the
Respondent, against the Appellant.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have
read the judgment of my learned brother, TOM SHAIBU
YAKUBU JCA. I agree with the reasoning and conclusion
that
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the appeal lacks merit and should be dismissed. A custom
which enables a child born and fathered by another man to
claim and inherit the property of a man who had died
before he was even conceived by his mother and to
disinherit the man’s biological child because she is a female
is certainly inconsistent with sound reasoning. It is
repugnant to natural justice, equity and good conscience. It
is an affront to the natural order of human life.
This Court and the Supreme Court have consistently
maintained its position that such a custom is repugnant to
natural justice, equity and good conscience. A custom
which enables a complete stranger to inherit what a man
owned and worked for all his life because he has no male
child cannot be allowed to continue. Even with all the giant
strides of modern science, no one has been able to dictate
whether an embryo should develop into a male or female
child. For now, that decision lies firmly with the creator.
See OKONKWO V. OKAGBUE & 2 ORS (1994) 9 NWLR
(PT.308) 301, ANEKWE & ANOR V. NWEKE (2014)
LPELR – 22697 (SC), OJUKWU V. AGUPUSI & ANOR.
(2014) LPELR – 22683 (CA), MOTOH & ANOR. V.
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MOTOH (2010) LPELR – 8643 (CA).
The appellant contended that he was being prevented from
inheriting the compound of late Simon Okeke because of
the circumstances of his birth having been born five years
after the death of Simon Okeke’s death and fathered by
another man. Though Section 42 of the 1999 Constitution
as amended provides that no citizen of Nigeria shall be
subjected to any disability or deprivation merely by reason
of the circumstances of his birth, there is certainly a
distinction between a biological child of a man and a child
born post humously to a man who died five years before the
birth of the child and who from entirely evidence on record
is not the biological father of the child. In the instant case,
the only person who is being discriminated against is the
respondent on ground of her sex which is forbidden by the
Constitution of the Federal Republic of Nigeria. The
attempt by the appellant to disinherit her of her father’s
property on the ground of her sex is unconstitutional as
Section 42(1)(a) provides that:
1. “A citizen of Nigeria of a particular community,
ethnic group, place of origin, sex, religion or
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political opinion shall not, by reason only that he is
such a person.
a. Be subjected either expressly by, or in the practical
application of any law in force in Nigeria or any
executive or administrative action of the government,
to disabilities or restrictions to which citizens of
Nigeria of other communities, ethnic groups, places
of origin, sex, religions or political opinion are not
made subject.”
For the above reasons and other detailed reasons contained
in the lead judgment, I too dismiss the appeal. I abide by
the consequential orders made therein.
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