Authored By: Chukwuemeka Anointing Godwin
University of Nigeria, Nsukka
1.Case Title & Citation
Full name of the case:
Augustine Nwofor Mojekwu
Caroline Mgbafor Okechukwu Mojekwu
Official Citation & year:
(1997) 7 NWLR (Pt. 512) 283
2.Court Name and Bench
Name of the court:
Court Of Appeal Enugu Nigeria
Name of judges:
Akintola Olufemi Ejiwunmi, J.C.A ( Presided)
Niki Tobi, J.C.A. (Read the Leading Judgment)
Eugene Chukwuemeka Ubaezonu, J.C.A.
Bench type:
Enugu Division
3.Date of Judgement
Thursday, 10th April, 1997
4.Parties Involved
- Augustine Nwofor Mojekwu is the appellant (plaintiff) in this case. He’s the “Oli-ekpe” in question who inherited the disputed land from his father.
- Caroline Mgbafor Okechukwu Mojekwu is the respondent (defendant) in the case. She’s the wife of the appellant’s uncle who actually owns the land in dispute.
5.Facts of the Case
5.0 This case arouse as a question of law before the high court of Enugu State when the appellant (plaintiff) commenced an action seeking a declaration from the trial court to resist the respondent (defendant) from interfering with, laying claim to, or disposing of the land which he inherited from his father under the “Oli-ekpe” custom of Nnewi in the Eastern part of Nigeria—being a personal law to the appellant.
5.1 The “Oli-ekpe” is a custom in Nnewi that allows the male cousin to the deceased uncle to inherit his land on the ground that the uncle had no son. Okechukwu Mojekwu being the deceased uncle acquired the disputed land from the Mgbelekeke family under kola tenancy in Onitsha Anambra state, Nigeria. He married two wives (Janet and Caroline) who bore him two daughters and a son respectively. When he died in the year 1944, his brother, Charles Nwofor Mojekwu being the appellant’s father inherited the land—given that Okechukwu’s only son Patrick Adina predeceased him and was left with no child. (Said to have died during the civil war in Nigeria).
5.2 The land in dispute was inherited under a system called Kola tenancy of Mgbelekeke family— which is mostly practiced in Onitsha, Eastern part of Nigeria. This system allows a lessor to lease part of his land or property to the leasee in exchange of a kola. The leasee (both male and female) exercises ownership of the land while the actual owner exercises absolute possession and can revoke the land by exfluxion of time.
5.3 By the rules of the Nnewi custom, the eldest male inherits the father’s property along with his wives and daughters—with a pledge to take good care of the wives and daughters in exchange of them possessing good character.
5.4 The appellant initiated this case first at the trial court to stop and bar the respondent (wife of his deceased uncle) from displaying any act of ownership to the land in dispute. While the respondent argued that the plaintiff isn’t the head of Mojekwu family as the appellant’s father inherited the land from her husband (appellant’s uncle) while her son (Patrick Adina) was still alive—which she sued under Suit No. 399/59 at the District Court Grade ‘A’ and obtained a judgement in her favor.
5.4 At the trial court, one of the bones of contention was which law should apply to this case—as two distinct laws—Kola tenancy of Onitsha (where the disputed land situate) and Nnewi custom of Oli-ekpe (the appellant’s custom) are seen contradicting. The counsel to the appellant argued that the personal law being the Oli-ekpe of Nnewi should apply which permits the eldest male to inherit the father’s property excluding the female siblings. While the counsel to the respondent argued that lex situs should apply—being the Kola tenancy of Onitsha which permits both male and female to acquire.
5.5 The trial court ruled in favor of the respondent whereby dismissing the claim of the appellant (plaintiff) as being repugnant to natural justice, equity and good conscience.
5.6 The trial judge also rejected the Exhibit 1 being the docket of consent and payment which signifies he’s legally the rightful owner of the land (Kola tenancy). The trial judge further held that an unregistered registrable instrument isn’t tenable as an evidence.
5.7 The trial judge further raised an issue suo motu which questions the consent of the two daughters who signed the docket as witnesses. He thereby ruled on them without inviting the party to the claim.
5.6 The aggrieved appellant (plaintiff) appealed to this court seeking a declaration to quash the decisions of the lower court and uphold his claims.
- Issues raised
Was lex situs (Kola tenancy) the applicable law in this case?
Was unregistered registrable instrument admissible in Nigeria evidence law? 3. Was suo motu issue raised by the judge without inviting the party constitutional?
7.Arguments of the parties
- Appellant’s (plaintiff’s) argument:
On issue one, the appellant argued that the applicable law should be the personal law which is Oli-ekpe. He further buttressed that the appellant’s father had been associated with the Oli-ekpe custom—being his personal law and that should be applied in his disputed estate. The trial judge ruled that when a personal law and lex situs contradicts, lex ,situs prevails.
On issue two, the learned counsel submitted that an absence of registration does not affect a receipt issued as an unregistered document can be tendered as evidence. He thereby relied on a S.C case of Oni v. Arimoro (1973) 1 All NLR (Pt.l) 189;( 1973) 3 SC 163. The trial judge failed to recognise the admissibility of an unregistered property being admissible and ended up erring in law.
On the last issue, the learned counsel argued that the suo motu issue raised by the judge without inviting the party is unconstitutional and a threat to the legal principle—audi alteram partem which is of equal fair hearing. He therefore relied in the case of Sagay v. M/S New Independence Rubber Company Limited (1977) 5 SC 143. The trial judge dismissed his claims.
- Respondent’s (defendant) argument:
The learned counsel to the respondent on his response to the applicable law maintained that the law where the immovable property situates or is situated governs it—which makes the lex situs the applicable law. The trial judge upheld this point and ruled that lex situs was the applicable law to this case. He built his argument on the S.C case of Udensi v. Mogbo (1976) 7 SC 1.
On the second issue, the learned counsel’s argument reflected the trial judge’s decision whereby submitted that the trial judge was right in holding that an unregistered immovable property isn’t admissible as an evidence in court.
On the last issue, the learned counsel further submitted—in agreement with the trial judge on the issue of docket consent and payment as not being a valid claim over the land in dispute. The trial judge upheld the above arguments and dismissed the appellant’s argumens.
- Judgement/Final Decision
- On the first issue- the applicable law, the judge (Niki Tobi, JCA) in his legal prowess gave full analysis on what both personal law and lex situs means before ruling his judgement.On relying on judicial decisions of the supreme Court case of Udensi v. Mogbo (1976) 7 SC 1—declared lex situs to be the applicable law to this case. The court of appeal agreeing with the trial court further held that lex situs should be the applicable law when the property in question is an immovable one. Hence, laws associated within the area where the property situates or is situated becomes the applicable law. And that made the Kola customary tenancy an applicable law to this case.
- On the second issue, the trial judge has disregarded the Exhibit 1 in view that it was unregistered—treating it as inadmissible. The Court of appeal analytically corrected this approach by applying Nigerian evidentiary doctrine. By virtue of the Land Instruments Registration Law, even though an unregistered registrable land can’t prove legal title,it can still be admissible to prove an equitable interest and to prove payment of purchase money or rent. The court of appeal judge thereby relied on a case of Savage v. Sarrough (1937) 13 NLR 141.
- On the last issue, the court of appeal disregarded the decision of the trial judge on raising an issue suo motu and resolving them without inviting the counsel to address him, which violated audi alteram partem principle—a fundamental component of fair hearing under S.36(1) 1999 Constitution (although 1979 constitution applied at the time, the principle is identical).
- Therefore, the case was dismissed.
- Legal Reasoning/Ratio Decidendi
Ratio Decidendi:
- A widow is entitled a fair and equitable portion from his husband’s estates.
- In succession, lex situs (law of the place where property is situated) governs immovable property, while personal law governs personal rights.
- An unregistered registrable instrument is admissible as an evidence in court.
- A trial judge cannot raise issues suo motu that affect the rights of parties without giving them a fair hearing.
Legal Reasoning:
- The court of appeal upheld that customary law should be a reflection of natural justice, equity and good conscience. And any customary law in contravention to the aforementioned is said to be repugnant.
- Court’s judgement on the applicable law ensures predicability and consistency. The court hereby devised that an immovable property like Kola tenancy land is governed by lex situs while personal rights is governed by personal law.
- The court of appeal ruled that an unregistered registrable instrument is admissible as an evidence in court. This shows that law still reflects fairness and equitable discretion and not always as harsh as the blindfolded Lady justitia is often perceived to be.
Conclusion
On a final note, the court affirmed that the Oli-ekpe custom which excludes female siblings from taking part in their father’s estate is repugnant to natural justice, equity and good conscience. The court further held that under the Nigerian evidenciary law, unregistered property (land in dispute) can be tendered as an evidence in Court.
Finally, the court determined that the lower court raising an issue suo motu without inviting party to address them is undermining the principle of audi alteram partem which is a fundamental principle to fair hearing.
Collectively, these findings makes a paradigm shift from the partriach based customary practices to a remodeled customary practices that promotes fairness, equality and good conscience.
Reference(S):
Cases cited
Oni v Arimoro (1973) 1 All NLR (Pt 1) 189; (1973) 3 SC 163 Sagay v New Independence Rubber Co Ltd (1977) 5 SC 143 Savage v Sarrough (1937) 13 NLR 141
Udensi v Mogbo (1976) 7 SC 1
Statute
Constitution of the Federal Republic of Nigeria 1999 (as amended), s 36(1).
