The case of Mojekwu v Iwuchukwu (2004) 11 NWLR Pt. 883 was an appeal against the judgment of the Court of Appeal in the former case of Mojekwu v Mojekwu. In this case, the Supreme Court of Nigeria was called upon to review the judgment of both the Court of appeal and the High Court which gave judgment for the defendant/respondent. The basic issue before the Supreme Court in Mojekwu v Iwuchukwu was whether the “Oli-epke” custom of the Nnewi people is repugnant to natural justice, equity and good conscience as promulgated by the court of appeal.
More so, the Supreme Court had to consider whether it was the “Oli-epke” custom of the Nnewi people which was to be followed in the case at hand or the Kola tenancy of Mgbelekeke family. In this page, you will get the complete facts, issues and decision of the Supreme Court in Mojekwu v Iwuchukwu.
Facts of the case:
The facts of Mojekwu v Iwuchukwu are as follows:
At the high Court, the appellant/plaintiff sued Mrs Caroline Mojekwu (one of the wives of Okechukwu Mojekwu), who having died, was substituted by her daughter who is now the respondent. The appellant claimed a declaration that he was entitled to the statutory right of occupancy of property situated at No 61 Veen road, South, Onitsha in accordance with the Nnewi native law and custom. His argument was that since he was the recognized kola tenant of the Mgbelekeke family of Onitsha, he was entitled to the to the property by law.
The appellant/plaintiff therefore brought an action for general damage, injunction and an account of rents collected by the defendant from the month of April 1982 until delivery of jurgmemt.
According to the appellant his uncle, Okechukwu Mojekwu, acquired a parcel of land from Mgbelekeke family under the Kola tenancy and built a house on it. He died in 1944 leaving two daughters and a son called Patrick Adina Okechukwu Mojekwu. The appellant averred that his own father, the only brother of Okechukwu Mojekwu died in 1964 while Patrick the only son of the said uncle died during the civil war without any child. He contended that according to the Nnewi native law and custom, he succeeded the estate of the his uncle and he became the head of the Mojekwu family. He held action to the property by virtue of Exhibit 1, a document he collected from the Mgbelekeke family.
The mother of the late Patrick was the defendant at the high Court. The respondent who was substituted for the defendant was one of her daughters.
The case of the defendant/respondent was that the property has passed to Patrick and to Chukwuemeka Okechukwu (an alleged son of Patrick). The defendant agreed that when the house of her husband want into ruins during the civil law, she built it with her own money, without any reference to the appellant and she put in all the free-paying tenants. However, the defendant/respondent stated that the appellant misrepresented facts to Mgbelekeke family to recognize him as entitled to continue the Kola tenancy; that the recognition of the appellant where the male and female children of the deceased are still living is contrary to the the Onitsha customary Kola tenancy system of devolution of property on death; and that the native law and custom of inheritance of Onitsha applied and not the native law and custom of the Nnewi people.
At the trial court, evidence led by the appellant/plaintiff was that under the Nnewi custom a male child inherits property; and where there is no male child, the brother of the decreased inherits the property even where he is succeeded by female children. In either case, the person who inherits the property is called the oli-epke. However, when the suit was earlier heard by Onwuamaegbu J, which was tendered in support of the appellant’s case. The PW6 which testified on behalf of the appellant/plaintiff stated under cross-examination that the children of a Kola tenant of the Mgbelekeke family inherited the Kola tenancy such that where the deceased had no male child, the female child/children will inherit the property.
On whether Patrick had ever married and bore a child in 1973, DW1 who testified for the respondent/defendant stated that Patrick actually had a child who was born in 26 August, 1973. She also stated that the last time she saw Patrick was in 1970. At the time DW1 testified in 2nd November, 1992 and 3rd April, 1993 she maintained that Patrick was not dead. On the other hand, one James Okoronkwo also testified that Patrick who was in the Biafran army, died during the Biafran war on the 25 August, 1969.
At the high Court, the court dismissed the suit on the grounds that there was no evidence to support the relief sought by the plaintiff that under the Onitsha Kola tenancy, he was entitled to the land in dispute. The court also stated that it did not believe that Patrick died in 1969. It found out that Patrick married and gave birth to Emeka in 1973.
Aggressived with the decision of the high court, the plaintiff appealed to the court of appeal. The court of appeal dismissed the appeal but came to the conclusion that the applicable law was the lex situs (That is, the Kola tenancy law) not the personal law of the parties (Nnewi custom of oli-epke). Conversely, the Court of appeal also held that the oli-epke custom is repugnant to natural justice, equity and good conscience. The plaintiff further appealed to the Supreme Court.
On appeal to the Supreme Court, the appellant contented that the court of appeal raised the issue of the repugnancy of oli-epke custom suo motu and did not hear from the parties before giving a decision on that.
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Issues raised in Mojekwu v Iwuchukwu
- Whether the court of appeal was right in declaring that the “Oli-epke” custom of the Nnewi people is repugnant to natural justice, equity and good conscience.
- Whether Exhibit 1 was of much assistance to the appellant.
- Whether Patrick, the son of the defendant was ever married and bore a son in 1973
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Decision of the Supreme Court in Mojekwu v Iwuchukwu (2004) 11 NWLR Pt. 883
Unanimously dismissing the appeal, the Supreme Court held that once it is submitted that a property is held under a Kola tenancy, one thing the holder cannot do under customary law is to absolutely alienate the property. However, kola tenancy under the Mgbelekeke family is inheritable by the children of a deceased Kola tenant, no matter the sex and this is upon production by the succeeding child and acceptance by the Mgbelekeke family upon further Kola. Therefore, so long as a deceased Kola tenant is survived by children, male or female, the question of the deceased brother or any such stranger inheriting will not arise.
In the instant case, there was evidence that female children were entitled to inherit the Mgbelekeke Kola tenancy held by a deceased Kola tenant. This position of the law ruled out the appellant from such inheritance.
On the issue as to whether the court of appeal was right in declaring that the “Oli-epke” custom of the Nnewi people is repugnant to natural justice, equity and good conscience, the Supreme Court held that a custom cannot be said to be repugnant to natural justice, equity and good conscience just because it is inconsistent with an English law or some principle of individual right as understood in any other legal system. Therefore, the court must hear the parties and act with solemn deliberation over all the circumstances before declaring a custom repugnant. In some outrageous and needlessly discriminatory custom, there maybe no difficulty in reaching a decision. In some other cases it may not be too easy. This is where the repugnancy principle should be dispassionately considered and applied. Relying on this, the Supreme court held that the opposed the court of appeal on the issue as to whether the Oli-epke native custom is repugnant to natural justice, equity and good conscience. The court also condemned the court of appeal for bringing up the issue of repugnancy without hearing from the parties before giving its judgment.