Authored By: Eziefula Chidera Angel
Nnamdi Azikiwe University
IN THE COURT OF APPEAL OF NIGERIA
(ENUGU DIVISION)
THURSDAY, 10TH APRIL, 1997
SUIT NUMBER: CA/E/145/94
BEFORE HIS LORDSHIPS
AKINTOLA OLUFEMI EJIWUNMI, J.C.A (Presided)
NIKI TOBI, J.C.A. (Read the Leading Judgment)
EUGENE CHUKWUEMEKA UBAEZEONU, J.C.A
INTRODUCTION
This case concerns a dispute over inheritance rights to property governed by Nnewi native law and custom. The Court of Appeal was called upon to determine the applicable law and the validity of the Oli-eke[1] custom in regulating succession. In dismissing the appeal of Augustine Nsofor Ojukwu against Caroline Mgbafo Okechukwu Mojekwu, the court applied the principle of lex situs, upheld the Kola tenancy system[2], and held that the Oli-ekpe custom was discriminatory against women and inconsistent with principles of equity, thereby affirming the judgment of the trial court.
FACTS OF THE CASE
For ease of understanding, the parties will be referred to as:
- Appellant: Augustine Nwofor Mojekwu
- Respondent: Caroline Mgbafor Okechukwu MojekwuTop of Form
This case arose from a contest over the inheritance of a property situated in Onitsha belonging to Mr Okechukwu Mojekwu who hails from Nnewi, the uncle to Augustine Mojekwu and the husband to Caroline Mojekwu. Mr Okechukwu bought the property in dispute from the Mgbelekeke family of Onitsha under Kola tenancy land tenure system. Upon Mr Okechukwu’s death, Augustine as the eldest surviving male child of the Mojekwu family inherited the property under native law and custom of Nnewi. In addition, he paid the necessary “kola”, being the consideration to the Mgbelekeke family who recognised him as a kola tenant.
After a while, a disagreement arose between Augustine Nwofor Mojekwu and Caroline Mgbafo Okechukwu Mojekwu over who was entitled to inherit the property.
The appellant, Augustine Nwofor Mojekwu, asserted that succession was governed by the Oli-ekpe custom of Nnewi, which vests inheritance rights in male members of the family and excludes females. On this basis, he maintained that the respondent was not entitled to inherit the property. The respondent, however, argued that the property was subject to the kola tenancy system and that she was lawfully entitled to succeed to it despite being female.
At the trial court, evidence was led on the nature of the property and the relevant customary practices in Nnewi. The court rejected the appellant’s reliance on the Oli-ekpe custom and upheld the respondent’s claim. Dissatisfied with this decision, the appellant appealed to the Court of Appeal, challenging both the findings of fact and the application of customary law by the trial court.
LEGAL ISSUES
The court of appeal identified and addressed the following legal issues:
- Whether the law applicable to this case is the personal law of the deceased or the lex situs.
- Whether exhibit ‘1’, the conveyance between the Mgbelekeke Family and the appellant can be pleaded or given in evidence, being an unregistered registrable instrument.
- Whether the learned trial Judge was right in raising the issues he raised suo motu and resolving them, without allowing the parties to address him thereon.
- Whether the court can grant a relief sought by a party for which there is no averment in support thereof in his pleadings.
- Whether the learned trial Judge failed to evaluate the evidence before him that the appellant is the surviving male issue in the Mojekwu family who is entitled to inherit the property in dispute in accordance with Nnewi Native Law and Custom.
ARGUMENTS
APPELLANTS ARGUMENT
The appellant, Augustine Nwofor Mojekwu, argued that the trial court erred in awarding the disputed property to the respondent. He contended that, under Nnewi native law and custom, specifically the Oli-ekpe custom, inheritance of the property was restricted to male members of the family. On this basis, he maintained that the respondent, being a woman, was not entitled to inherit the property.
He further argued that the trial court wrongly applied the kola tenancy system and failed to give proper weight to evidence supporting the applicability of the Oli-ekpe custom. According to the appellant, the court’s decision was contrary to established customary law governing succession in Nnewi, and he urged the Court of Appeal to set aside the judgment of the trial court.
RESPONDENT’S ARGUMENT
The respondent contended that the property was held under the kola tenancy system, which governed succession to the property and did not exclude female heirs.
She further maintained that the appellant’s reliance on the Oli-ekpe custom was misplaced, and that the custom was inapplicable to the property in question and was discriminatory and inconsistent with principles of equity and natural justice. The respondent therefore urged the Court of Appeal to uphold the judgment of the trial court, which had correctly recognized her inheritance rights.
COURT’S ANALYSIS
The Court of Appeal examined the nature of the disputed property and the customary law governing its devolution. It first determined that the applicable law was the lex situs, meaning that the law of the place where the property was situated governed the dispute. In this case, the land was situate in Onitsha. Hence, the Court of Appeal agreed that the property was held under the kola tenancy system rather than being subject to the Oli-ekpe custom relied upon by the appellant.
Concerning exhibit 1 the appeal court disagreed with the conclusion of the trial court when it held that the document could not be pleaded because it was not registered. The appeal court held that generally, by virtue of the Land Instruments Registration Law, an instrument affecting land shall not be pleaded or given in evidence unless it has been registered. How ever, a registrable instrument which has not been registered is admissible to prove an equitable interest and to prove payment of purchase money or rent.
The appeal court agreed with position of the trial court that a court can only grant a relief sought by a party for which there is averment in support thereof in his pleadings.
As regards the trial court raising some issues suo motu, the court of appeal held that trial Judge was wrong in raising the issues that were not raised by the parties either in their pleadings or in evidence suo motu and resolving them, without allowing the parties to address him thereon.
The court carefully evaluated the appellant’s claim that the Oli-ekpe custom excluded women from inheriting the property. It held that the appellant failed to satisfactorily prove the existence and applicability of that custom to the property in question, as required by law. Moreover, the court observed that even if the Oli-ekpe custom were applicable, it was inherently discriminatory against women and therefore contrary to principles of equity, natural justice, and good conscience.
DECISION
In assessing the evidence and the trial court’s findings, the Court of Appeal found no error in the evaluation of facts or in the application of customary law. It concluded that the appellant’s arguments lacked sufficient legal and evidential support, and that the trial court had correctly resolved the issues before it. Consequently, the court dismissed the appeal and affirmed the judgment of the trial court. All the judges decided in line with the judgement of the Niki Tobi JCA who gave the lead judgment.
SIGNIFICANCE AND CONCLUSION
This case is significant for a lot of reasons. Some of them include: the judicial condemnation of the Oli-ekpe custom, which excluded women from inheritance. By holding the custom discriminatory and inconsistent with principles of equity, the Court of Appeal reinforced the position that customary law must conform to constitutional values and cannot perpetuate gender-based discrimination.
The decision also affirmed the principle that succession to immovable property is governed by the lex situs (the law of the place where the property is situated). This clarification provides guidance on how courts should determine the applicable law in customary land and inheritance disputes.
Again, the case strengthened the legal recognition of kola tenancy as a valid customary landholding system in Nnewi. It demonstrated that rights under kola tenancy are not strictly patriarchal, thereby broadening access to inheritance rights beyond male lineage.Top of Form
CONCLUSION
Bottom of Form
The decision of the Court of Appeal in Augustine Mojekwu v. Caroline Mojekwu represents a principled and progressive application of Nigerian law. By affirming the judgment of the trial court, the court demonstrated that customary law, though recognized and respected, is not absolute and must yield where it conflicts with principles of equity, natural justice, and good conscience. The rejection of the Oli-eke custom underscores the judiciary’s role in protecting fundamental rights, particularly the inheritance rights of women, and in preventing the enforcement of customs that perpetuate inequality and injustice. The case therefore reinforces the idea that the evolution of society must be reflected in the interpretation and application of the law.
[1] Under this tradition, succession to certain family property is restricted to male members of the family, particularly the eldest male, while female children or relatives are excluded from inheriting such property.
[2] Under the Kola Tenancy Law, 1935 Kola tenancy is a right of use and occupation of any land which is enjoyed by any native in virtue of a kola or other token payment made by such native or any predecessor in title or in virtue of a grant for which no payment in money or in kind was enacted.
