Mojekwu v Mojekwu

Case Name: Mojekwu v Mojekwu

Citation: (1997) LPELR-13777 CA; [1997] 7 NWLR (pt 512) 283

Court: Court of Appeal, Nigeria (Enugu Division)

Date of Decision: 1997

Bench Composition: Akintola Olufemi, Niki Tobi, Eugene Chukwuemeka Ubaezonu

Introduction

Mojekwu v Mojekwu is a landmark Nigerian appellate decision concerning the intersection of customary law, inheritance rights, gender discrimination, and constitutional guarantees of equality. The case is widely regarded as a watershed moment in Nigerian Customary Law. The Court of Appeal was called upon to determine whether a customary law rule that excluded women and their male children from inheriting land merely on grounds of their sex was consistent with Nigeria’s constitutional provisions on non-discrimination. The decision significantly shaped the discourse on the application of customary law in Nigeria’s pluralist legal system.

Facts of the Case

The Parties are;

•   Plaintiff: Augustine Nwofor Mojekwu (representing the male line inheritance)
• Defendant: Caroline Okechukwu Mojekwu(widow defending her right to the deceased husband’s property)

The plaintiff is the son of Charles Nwofor Mojekwu, while the defendant, Caroline, was the wife of Okechukwu Mojekwu the plaintiff’s uncle. The dispute centers on a piece of property in Onitsha, originally acquired by Okechukwu under the kola tenancy land tenure system from the Mgbelekeke family, governed by Nnewi native law and custom.

Okechukwu Mojekwu died in 1944, predeceasing his brother Charles, who died in 1963. Okechukwu had married two wives Janet and Caroline (the defendant). Janet had two daughters; Caroline had a son, Patrick Adina, who died during the Nigerian Civil War without a surviving issue. The plaintiff, as the eldest surviving son of Charles and the eldest male in the Mojekwu family, claimed to have inherited the property under Nnewi custom. He also paid the required “Kola” consideration to the Mgbelekeke family, who recognised him as the kola tenant. The defendant and others accompanied the plaintiff to the Mgbelekeke family for this recognition, and the daughters of the deceased Okechukwu signed the docket of consent as witnesses

Following the Nigerian Civil War, the plaintiff allowed Caroline to move from Nnewi into the disputed property to collect rents and care for herself, around January 1970. One of Janet’s daughters also lived in a room there temporarily, and upon leaving, Janet placed a rent-paying tenant in that room. The plaintiff continued to exercise acts of ownership over the property.

On 1st April 1982, the defendant commenced moulding cement blocks on the property in preparation for constructing a building without the plaintiff’s consent. The plaintiff intervened, stopping her, and subsequently made public announcements and newspaper publications to prospective lessees before filing the action.

The defendant contended that the plaintiff was not the head of the Mojekwu family and had no right to inherit the property under Nnewi custom. She pointed to prior litigation: in Suit No. 399/59 at the District Court Grade ‘A’, she had obtained judgment while the plaintiff’s uncle sought to take over the property even while Patrick Adina was still alive.

Legal Issues

• Whether the applicable law governing succession to the disputed kola tenancy property was the lex situs (the Kola Tenancy Law of 1935 and Mgbelekeke family customary law of Onitsha) or the personal law of the parties (the Nnewi customary law of “Oli-ekpe”).
• Whether the plaintiff had validly inherited the property in dispute under Nnewi native law and custom as the eldest surviving male of the Mojekwu family.
• Whether the “Oli-ekpe” custom of Nnewi which vests inheritance exclusively in male descendants was applicable to the property and whether it was repugnant to natural justice, equity and good conscience.

Arguments Presented

Plaintiff’s Arguments

The plaintiff contended that a kola tenant of the Mgbelekeke family holds only a possessory interest in land not a proprietary interest and therefore registration was not required. A docket of consent was sufficient proof that the kola had been paid, which was valued at N600

The also contended that under the kola system of tenancy, the plaintiff as the eldest surviving son of Charles Nwofor Mojekwu and the eldest male in the Mojekwu family was entitled to succeed the land both in Nnewi Customary Law and Kola Tenancy Law

Defendants Arguments

The defendant argued that the appellant was not the head of the Mojekwu family and had no entitlement to inherit the property under Nnewi custom or any other applicable custom.

Also that when the husband of the respondent (Okechukwu) died, the appellant’s uncle had wrongfully attempted to seize the property even while Patrick Adina was still alive. The respondent obtained judgment against this attempt in Suit No. 399/59 at the District Court Grade ‘A’.

Courts Analysis

The Court opened with pointed criticism of both parties’ briefs. Niki Tobi JCA observed that the appellant had formulated nine issues while the respondent formulated four, remarking that multiplicity of issues tends to reduce the substantive merit of an appeal by fragmenting cogent grounds into trivial ones. The Court emphasised that briefs must be concise, succinct and accurate, with issues clearly identified by subheadings under the argument section. Where counsel failed to identify the issues argued, the Court was left in confusion an outcome described as unhelpful, wasteful of the Court’s time, and conducive to conjecture.

On Kola Tenancy

Niki Tobi JCA provided a detailed exposition of the nature of kola tenancy in Onitsha. Before the Kola Tenancy Law of 1935, the traditional practice allowed landowners to grant parcels of land to grantees in return for a kola a nut of cultural and ritual significance among the Onitsha Igbo. The grantee thereby acquired virtually the same legal status as the original owner of the land. Problems arising from this arrangement including alienation disputes prompted the enactment of the Kola Tenancy Law of 1935.

Section 2 of that Law defines a kola tenancy as a right of use and occupation of any land enjoyed by any native in virtue of a kola or other token payment. Section 3 provides that where a grantee or successor in title receives a more substantial benefit than the grantor might have anticipated, the grantor may apply for extinction of the tenancy. The Court noted that a kola tenant has a transmissible right to descendants but the grantor retains a reversionary right exerciseable on determination of the tenancy.

The Court referenced Mgbelekeke Family v Madam Iyaji (1931) SC Suit No.4 to explain that original grantors of the kola tenancy were entitled to a declaration of title but, in the absence of express agreement, could not claim a proportionate part of the yearly rent (valued at N400). The case of Daniel v Daniel [1956] 1 FSC 50 was also cited to confirm that land held under kola tenancy in Onitsha could not be alienated by a holder who inherited it through his mother.

On The Applicable Law

The central jurisprudential question was whether succession to the property was governed by the lex situs (the law of the place where the property is situated i.e., the Mgbelekeke family customary kola tenancy law and the Kola Tenancy Law of 1935) or by the personal law of the parties (the Nnewi customary law of “Oli-ekpe”).

The Court held that the applicable law is the lex situs. The property is situated in Onitsha; accordingly, the law governing its tenure, inheritance and succession is the Mgbelekeke family kola customary tenancy not the Nnewi personal law of the parties.

The Court relied on the general private international law principle that lands and immovables are governed by the lex situs, affirming this position with reference to Udensi v Mogbo (1976) 7 SC 1 a case also dealing with kola tenancy in which the Supreme Court had no cause to pronounce on the lex situs issue but the trial judge’s observations on the Kola Tenancy Law were endorsed.

On The Oli-Ekpe Custom

The Court considered whether, even if the “Oli-ekpe” custom of Nnewi were applicable (which the Court held it was not), could be enforced. “Oli-ekpe” under Nnewi custom vests inheritance solely in male descendants specifically the first son of the late brother.  Witnesses described this custom in detail, affirming that under it, women cannot inherit family property.

The Court reasoned that a custom which discriminates against women solely on the basis of sex is antithetical to a democratic society, unconstitutional in principle, and an affront to the Almighty God Himself as the Creator of both male and female. The Court observed per Niki Tobi;

“Day after day, month after month and year after year, we hear of and read about customs which discriminate against the womenfolk in this country. They are regarded as inferior to the menfolk. Why should it be so? All human beings male and female are born into a free world and are expected to participate freely, without any inhibition on grounds of sex; and that is constitutional.”

This reasoning was offered as an alternative holding: even if Nnewi personal law applied, the “Oli-ekpe” custom was repugnant and a court of law sitting in equity could not invoke it.

On Succession Under The Kola Tenancy

The Court examined the two key decisions it identified from Udensi v Mogbo. The first established that kola tenancy under Mgbelekeke family customary law is inheritable by the children of a deceased kola tenant irrespective of sex but only upon production by the succeeding child of further kola payment, accepted by the Mgbelekeke family. The second established that the “Oli-Ekpe” custom (a related but distinct custom invoked in that case) did not apply to the property. In the present case, the Court applied the first principle to hold that the succession was governed by Onitsha/Mgbelekeke law, not by Nnewi Oli-ekpe custom.

Courts Decision

The Court of Appeal allowed the appeal and set aside the decision of the learned trial judge who had dismissed the appellant’s claim. The Ratio Decidendi is;

• The applicable law governing the disputed kola tenancy property is the lex situs namely the Mgbelekeke family customary tenancy law and the Kola Tenancy Law of 1935 and not the Nnewi personal customary law of the parties.
• The “Oli-ekpe” custom of Nnewi, which restricts inheritance to males only, was not applicable to the property in dispute and was, in any event, repugnant to natural justice, equity and good conscience.
• Under the applicable Onitsha kola tenancy law, the succession to the property was not governed by gender-discriminatory customary rules. The kola tenancy is inheritable by the children of a deceased tenant, regardless of sex, subject to payment of further kola and acceptance by the Mgbelekeke family.

The court granted the appellant’s reliefs, a declaration of title to the kola tenancy, injunction, and an account of rent.

Critical Analysis

Mojekwu v Mojekwu is a landmark decision in Nigerian customary law and property law for several reasons:

It is one of the earliest and most cited Nigerian appellate decisions to declare a gender-discriminatory customary rule specifically the Nnewi “Oli-ekpe” custom to be repugnant to natural justice, equity and good conscience, and therefore void and unenforceable. It planted the seed that bore fruit in the Supreme Court’s subsequent decision in Mojekwu v Ejikeme [2000] 5 NWLR (Pt.657) 402.

The case affirmed the lex situs principle as governing succession to immoveable property in Nigerian conflict-of-laws analysis: the law of the place where land is situated governs its tenure, inheritance and succession, regardless of the personal law of the parties.

It provided a comprehensive judicial exposition of the Kola Tenancy Law of 1935 (Onitsha) clarifying the nature of a kola tenant’s interest as akin to absolute ownership save for a limited right of disposition, with a transmissible right to descendants.

The judgment’s remarks on gender equality in customary law have been widely cited in Nigerian academic literature, feminist legal scholarship, and subsequent judicial decisions as foundational to the dismantling of patriarchal inheritance customs under the repugnancy proviso.

From an appellate practice standpoint, Niki Tobi JCA’s critique of prolific issue-formulation in briefs has itself become a frequently cited statement on brief writing standards before Nigerian appellate courts

Conclusion

In summary, the case addressed the validity of the oli-ekpe custom, which excluded female children from inheriting property, and whether such a custom could stand in light of principles of justice and equity. The Court of Appeal ultimately rejected the discriminatory practice, emphasizing that customs repugnant to natural justice, equity, and good conscience cannot be upheld.

The judgment reflects a growing judicial willingness in post-civil war Nigeria to subject discriminatory customary practices to constitutional and equitable scrutiny. It anticipates the constitutional guarantees against sex discrimination and the growing body of international human rights norms that Nigeria has ratified. The case demonstrates how the repugnancy proviso, long dormant in many jurisdictions, can serve as an active instrument of legal reform in the hands of a purposive judiciary.

The lasting impact of this judgment lies in its contribution to the gradual dismantling of patriarchal inheritance systems in Nigerian customary law. It set an important precedent that courts can invalidate customs that marginalize women, thereby promoting equality within the legal system.

Looking ahead, the case raises important questions about the extent to which courts should intervene in customary practices and how to balance respect for tradition with constitutional values. It also opens the door for further litigation and possible legislative reforms aimed at fully eliminating discriminatory inheritance practices.

Reference(S):

Cases

Mojekwu v Mojekwu [1997] 7 NWLR (Pt 512) 283 (Court of Appeal, Enugu Division)

Mojekwu v Ejikeme [2000] 5 NWLR (Pt 657) 402 (Supreme Court of Nigeria)

Mgbelekeke Family v Madam Iyaji (1931) SC Suit No 4 (Onitsha)

Daniel v Daniel [1956] 1 FSC 50

Udensi v Mogbo (1976) 7 SC 1

Legislation

Kola Tenancy Law 1935 (Onitsha) ss 2, 3

Land Use Act 1978 (Nigeria)

Secondary Sources

Nwabueze BO, Nigerian Land Law (Nwamife Publishers 1972)

Obi SC, The Ibo Law of Property (Butterworths 1963)

Tobi N, Cases and Materials on Nigerian Land Law (Ababa Press 1990)

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