A custom that precludes a testator from devising her legitimate property based on gender is repugnant to natural justice
In the Court of Appeal In the Enugu Judicial Division Holden at Enugu
ON THURSDAY, 1ST AUGUST, 2019
Suit No: CA/E/181/2013
Before Their Lordships:
IGNATIUS IGWE AGUBE, JCA
CHINWE EUGENIA IYIZOBA, JCA
ABUBAKAR SADIQ UMAR, JCA
1. OBIORAH NWUDE
2. CHISOM NWUDE (Defending by his Guardian
– Respondent(s) Ad litem ESTHER NWUDE)
3. NWITO NWUDE
LEAD JUDGMENT DELIVERED BY ABUBAKAR SADIQ UMAR, J.C.A.
FACTS OF THE CASE
The Appellant as Plaintiff in the Anambra State High Court, Awka Judicial Division instituted this action, the subject of this appeal against the Respondents as Defendants, jointly and severally claiming against them the following reliefs to wit: i. Declaration that the LAST WILL AND TESTAMENT OF MADAM UMERAH NWUDE DATED 27TH SEPTEMBER 1989 is null and void to the extent where it refers to compound allegedly knows as and called “NGULU BE UMERAH NWOBU NWUDE” and the six rooms story building including one under construction which the deceased bequeathed to the four sons of Nwobu Nwude according to Awka native law and customs are shown in Plan No. EP/AN635/89 dated 7/8/89 attached to the last Will and Testament of Madam Umerah Nwude and to set aside every averment in the Will and Testament touching on the said compound and building therein.
ii. Declaration that the compound and all the building within the compound are properties of Late Nwobu Nwude according to Awka native law and custom and any partitioning thereto must be in accordance with the said custom. iii. Declaration that the plaintiff is the first and eldest son of Late Nwobu Nwude entitled to inherit the compound and buildings thereto according to Awka native laws and custom of inheritance and the plaintiff is the one to partition the rest among the other sons of the deceased Nwobu Nwude if he so desires. iv. An injunction restraining the Defendants, their agents, servants, privies, persons claiming for or under the Defendants or acting on instruction from partitioning the said compound and building or collecting rents therefrom or doing anything that will prejudice or jeopardize the interests and rights of the Plaintiff.”
The case of the Appellant is that the property in dispute known as No. 200 Zik Avenue Awka but formerly known as 198 Enugu Road Awka belonged to his father late Nwobu Nwude but that at the death of the said Nwobu Nwude who predeceased his mother, the Appellant’s grandmother made a will whereby she partitioned the said property amongst the male children of her late son Nwobu Nwude. It is also the case of the Appellant that his grandmother claimed that the property belonged to her as she bought the same with her own money.
However, the Appellant who is the first son of the said Nwobu Nwude claimed that his paternal grandmother had no right to devise the said property by Will as the property belonged exclusively to his late father and that he as the first son has the sole right according to native law and custom of Awka to inherit the property from his late father and deal with same according to the Awka native law and custom.
The case of the Respondents is that late Umerah Nwude, the mother of the said Nwobu Nwude had a right to deal with the property as she did since she bought the property in a dispute with her own money. In its considered judgment, the trial Court dismissed the Appellant’s claim in its entirety. The Appellant dissatisfied with the said judgment invoked the appellate jurisdiction of the Court of Appeal.
ISSUES FOR DETERMINATION
The Court determined the appeal on the following issues:
“i. Whether on the pleadings/evidence canvased in the suit, the lower Court was right in holding that the claim put before the Court for determination was for “title to land simpliciter?” ii. Whether on the evidence canvassed, the lower Court was right in dismissing the claims of the appellant?
On issue one, learned counsel to the Appellant made reference to issues distilled in the Appellant’s final written address at the trial Court and submitted that the claim of the Appellant at the trial Court is not that his immediate late father Nwobu Nwude inherited the property in dispute from his own father (i.e. the Appellant’s grandfather) but that the said property was given to the late Nwobu Nwude by Obuekwe Nwude (the Appellant’s grandfather). It is the contention of counsel that issues on the pleadings regarding the words used, ‘GRANT’ and ‘INHERITANCE’, was in no way a contradiction so long as it is appreciated that the Appellant’s father Nwobu received the property as settlement portion from the Appellant’s grandfather and later his own father founded his Homestead thereon which on his own father’s death now transmitted to him as the eldest son under the tenets of Awka Town Tradition and Custom.
Counsel submitted that the trial Court’s failure to appreciate the Appellant’s claims hence the perception of the Court in dwelling on the existing authorities relative to the legal considerations for a grant of the declaration of title to land ending with a dismissal of the Appellant’s claims on that score alone. Counsel submitted that the same Court held in its judgment that Section 18 of the Anambra State Actions Law on 12 years Limitation period in respect of straight actions for recovery of land was inapplicable for the reason that the suit was merely not one based on declaration simpliciter but rather on issues pertaining to succession of inheritance under the extant customs/tradition of Awka Town.
On issue two, learned counsel to the Appellant submitted that in the circumstance both on the pleadings and evidence, the defence put nothing whatsoever against the solid evidence of the Plaintiff with regard to the Plaintiff’s right under the customary law of Awka for the custody, management, and control of the subject property as the eldest male inheriting those rights from his late father. Counsel submitted further that there was evidence from PW1 who was the Local Government Principal Rating and Valuation officer that the official records in their office show that the property in dispute is registered in the name of the Ikechukwu Nwude (i.e. the plaintiff) and that the registration was made by his late father Nwobu Nwude in his name in 1978. Counsel submitted further that the evidence raises the presumption of advancement in favour of the plaintiff as his eldest male child. Counsel submitted that under the percepts of Awka Town Community traditions, even where the property is proved to have been purchased by Umerah Nwude, the same would automatically enure to her only male child Nwobu Nwude, thereby denying her rights of disposition by Will as was attempted. Counsel referred this Honourable Court to the case of EZEOKAFOR V PAUL MBAH & ORS (1975) 5 U.I.L.R (PT. 11) 162. Counsel made heavy weather on the customary law restrictions on the testamentary freedom of Madam Umerah Nwude referring the Court to the cases of LEWIS V BANKOLE (1908) 1 NLR 82; SALAKO V SALAKO (1965) LLR 136.
In response to the submissions and arguments above, learned counsel to the Respondent submitted that if a party is relying on traditional evidence in proving his title to land, he must plead and prove not only who founded the land but how he founded it and the particulars of intervening owners through whom he claims. Counsel submitted further that it is obvious that the Appellant failed miserably to shoulder the burden placed on him by law and that it is either the Appellant’s pleading is deficient or that his evidence is irreconcilably contradictory, illogical or absurd.
On the capacity of Madam Umerah Nwede to devise the property in dispute the way she did, counsel to the Respondents submitted that since there is no contest regarding the validity of the Will and that since the testator’s testamentary capacity was also not challenged, then the Appellant’s ground of attacking the Will is that the Awka customs disables a woman from devising a landed property because by that custom a woman cannot own land, even when it is established that she personally acquired same. Counsel submitted further that the existence of such custom was not pleaded and that from the evidence of DW1 and DW2, the said custom does not exist. It is also the submission of counsel that assuming but without conceding that there is a custom to that effect, it would be unconstitutional and void on the ground of being discriminatory against women and interference with their fundamental right to own immovable property. Counsel referred the Court to Section 41(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the case of ASIKA V ATUANYA (2008) 17 NWLR (PT. 1117) 448 AT 515 – 516 (PARA. H – E).
RESOLUTION OF ISSUE
In resolving issue one, the Court stated the position of the law that parties and the trial Court are strictly bound by the pleadings and issues raised by the parties in their pleadings. Their case succeeds or fails on the basis of their pleadings and evidence led. See ETIM V. CLASEN VENTURES & ORS (2011) LPELR – 3827 (CA) AT 18-19 (G-D). The Court observed that the issue of the ownership of the property in dispute was joined between the parties. While the Appellant claimed that the property in dispute solely belonged to his late father thereby tracing his root of title to his father and the father’s predecessors, the Respondents set a defence by claiming that the property in dispute belonged to Madam Umerah Nwude to the exclusion of any other persons.
The Court further observed that the trial Court and the parties in their final addresses joined issues on the fact that the claims of the Appellant was statute-barred having been brought 14 years after the cause of action arose and which was at variance with the provisions of Section 22(2) of the Actions Law Cap 3 of the Revised Laws of Anambra State 1991. The Court held that the propriety of the disposition of the said property in the Last Will and Testament of Late Madam Umerah Nwude cannot be decided when the ownership rights on the said property are strongly in contention between the parties. Premised on this, the issue was resolved against the Appellant.
On issue two, the Court stated the trite position of law that a party claiming title to land by inheritance must plead facts relating to the founding of the land in dispute, the person(s) who found the land and exercised original acts of possession and the intervening owners through who the land has evolved from the original founder to the present. See IROAGBARA V UFOMADU (2009) LPELR-1538 (SC) AT 15 (C-E); IKPAMAKU V MAKOLOMI (2011) LPELR-4513 (CA) AT 21-22 (G-C). The Court noted that it is crystal clear that the Appellant abdicated his duty by failing to prove the persons who founded the land and exercised original acts of possession and the intervening owners through who the land has evolved from the original founder to the present. He merely traced his roots to his grandfather and his father without more.
In concluding the judgment, the Court held as follows: “Looking at this issue from another judicial lens, although, I am not oblivious of the various customary law restrictions on a testator’s testamentary freedom in this part of the world and the Court’s attitude towards the preservation of such cultures provided they are reasonable, however, without ascribing the ownership of the property in dispute to the said Madam Umerah Nwude, I am of the opinion that if a woman buys a property with her personal money to the exclusion of any other person, will it be conscionable to judicially ratify a custom precluding her from disposing same according to her will? My answer is in the negative. Even if there was a custom to that effect, in my opinion, a custom, which restricts a person’s testamentary freedom on the basis of gender, is unreasonable, repugnant to natural justice, equity and good conscience. I do not agree with learned counsel to the Appellant that since the property would naturally have devolved to the Appellant’s father, then the Appellant was the one entitled to the control the property in dispute being the first son of his father.”
On the whole, the Court found no merit in the appeal and it was thereby dismissed.
J.H.C Okolo, SAN
F.O. Anyanugbu, Esq.
– For Respondent
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