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

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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

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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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

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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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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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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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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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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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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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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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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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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.

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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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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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