Customary Law Applicable in a Locality – Presumption of knowledge and Proper Application of by a Trial Court
In the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 18th Day of June, 2021
Before Their Lordships
Musa Dattijo Muhammad
Chima Centus Nweke
Helen Moronkeji Ogunwumiju
Justices, Supreme Court
CLEMENT OKEKE APPELLANT
- AMUCHE NWIGENE
- SOMADINA EMEKA NWIGENE RESPONDENTS
“IN ALL MATTERS OF CUSTOMARY LAW, THE TRIAL COURT IS PRESUMED TO KNOW THE LAW APPLICABLE IN THE LOCALITY AND IT ALSO HAS THE ADVANTAGE OF SIFTING THE LAW”
(Lead judgement delivered by Honourable Tijani Abubakar, JSC)
The Respondents instituted an action against the Appellant at the High Court of Enugu State, seeking a Declaration that they are entitled to the Right of Occupancy over two parcels of land at Umuachina Ekwulobia, Aguata Local Government Area of Enugu State.
The Appellant filed a Counter-claim for the declaration of title to the said parcels of land. The parties all traced their title to a common ancestor, Ezegoro who was the Appellant’s father and the Respondents’ grandfather. The said Ezegoro had three sons and their names in order of seniority are Nwanneche, Ibemesi (the Respondents’ grandfather) and Okeke (the Appellant’s father). Nwanneche being the eldest son inherited their father’s Obi (“Obi Ezegoro”) at his death while the other properties “Ana Obi” was partitioned by him and shared between his brothers. Nwanneche subsequently died without a successor. Ibemesi who was his next brother in order of seniority and who would have ideally inherited the Obi predeceased Nwanneche; however, he had a young son called Nwigene.
The case of the Respondents as the Plaintiffs was that under Ekwulobia Customary Law, the young Nwigene was entitled to the Obi Ezegoro, sitting in the position of his deceased father who would have ordinarily inherited the property if he had been alive. They canvassed that because Nwigene was not of age at this time, Okeke, who was his uncle and the last surviving son of Ezegoro, left the portion of land apportioned to him at the Ana Obi and moved into the Obi with young Nwigene and his mother so as to protect the property from trespassers. However, after Nwigene came of age and was capable of securing the Obi, the Appellant refused to move out of the property.
The case of the Appellant on the other hand was that his father had moved into the Obi as of right as the only surviving son of Ezegoro and not to protect Nwigene’s interests. While both parties pleaded similar facts as to the origin of their title, their point of divergence was as to the person under Ekwulobia custom and tradition that was entitled to inherit Nwanenche’s Obi. The Respondents claimed entitlement to the Obi Ezegoro through Nwigene their father (as successor to Ibemesi their grandfather) while the Appellant claimed entitlement through Okeke his father.
After trial in the suit, the trial court delivered judgment in favour of the Respondents and declared that Nwigene was the rightful person to inherit the Obi Ezegoro upon the death of his father. The trial court held that Respondents are thus, entitled to the Right of Occupancy over the property through Nwigene. Dissatisfied, the Appellant appealed to the Court of Appeal which dismissed his appeal and affirmed the judgment of the trial court. The Appellant filed a further appeal to the Supreme Court.
Issue for determination
In resolving the appeal, the Supreme Court considered the following sole issue as being central to the appeal:
Whether the Court of Appeal was right when it held that Nwigene, the son of Ibemesi is the right person to succeed to the Obi Ezegoro on the death of his father.
Counsel for the Appellant relied on Paragraph 15(2) of the Customary Law Manual of East Central State, as applicable to Anambra State, which provides that “where a man is not survived by a son, his compound is inherited by his eldest surviving brother of full blood” and argued that Nwigene cannot be equated to be the Nwanneche’s eldest surviving brother of full blood and cannot therefore be entitled to the Obi. He submitted that Okeke as the eldest surviving brother to Nwanneche was thus entitled to the property in dispute and the Appellants rightly derived their title to the property from him. Counsel contended further that the courts below were in error when they relied on the evidence of the Respondents’ witnesses – PW1, PW2 and PW3, being women, as authorities on the customs and traditions of Ekudulobia, while the courts failed to evaluate the evidence of the Appellant and his witnesses.
In response, counsel for the Respondents argued that seniority under the Eastern States Customary Law or Igbo Customary Law is not limited to the individual persons but to their lineage or successors. Counsel submitted that the position of counsel for the Appellant is at variance with the evidence given by the Appellant at the trial court. The Appellant had testified that “when a man dies, his eldest son retains the Obi against the man’s younger brother”. DW6, one of the witnesses who testified on behalf of the Appellant, also testified that when a man dies and is survived by a son who is a minor, his right to the Obi does not vanish as the son continues his lineage. He contended that after the death of Ibexes, his son Nwigene, sitting in the position of his late father, is by Ekwulobia Native Law and Custom, entitled to the Obi Ezegoro. Counsel submitted that the Customary Law manual relied on by the Appellant is not a legal authority or basis upon which the proof of a custom or tradition must be premised and that the lower court agreed that the Manual is merely a guide which must be pleaded by the Appellant.
Court’s Judgement and Rationale
The Learned Justices held that the Supreme Court does not ordinarily interfere with concurrent findings of facts by the trial court and the Court of Appeal unless there are compelling reasons to do so. The court held further that in all matters of customary law, the trial court is presumed to know the law applicable in the locality and it also has the advantage of sifting the law.
The court held that it was very clear from the records and the findings of the trial court based on the evidence elicited before it as well as the Court of Appeal’s concurrent finding of fact that, under the Ekwulobia Native Law and Custom, it is generally recognised that when a man dies but is survived by a son, he is deemed to be living in the eyes of the people, thus, notwithstanding the fact that Ibemesi predeceased Nwanneche, Ibemesi is deemed to be in existence through his son Nwigene. Any property which ordinarily would have been inherited by Ibemesi can therefore be lawfully transferred to his son Nwigene, through whom the Respondents are now claiming.
Thus, the court found that there was no compelling reason to interfere with the concurrent findings of fact of the two lower courts as it was clear from the records and the findings that going by Ekwulobia Native Law and Custom, after the death of Ibemesi, his son Nwigene is entitled to the land in dispute, sitting in the position of his late father (Ibemesi). It did not matter that the Appellant’s father, Okeke moved to the land in dispute and was in possession of the same for 50 years as he only moved into the land to protect it on behalf of young Nwigene until he became of age.
Regarding the submission about the weight attached to the evidence of the Respondents’ witnesses who are females, the Supreme Court held that the witnesses, though females, are knowledgeable and understand the customs and tradition of their communities – EZEDIGWE v NDICHE (2001) 12 NWLR (Pt. 726) 37 at 61.
Chief Okwuchukwu Ugolo, SAN for the Appellant.
K.C. Ezeanyika for the Respondent.
Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Report (NMLR)(An affiliate of Babalakin & Co.)