Circumstances of an individual’s birth cant’t disqualifying him\her in sharing of the deceased’s estate

OKEBRAM MARK v. PST. IFEANYICHUKWU IRONU & ORS (2019) LPELR-47026 (CA)

In the Court of Appeal
In the Owerri Judicial Division
Holden at Owerri

ON FRIDAY, 15TH MARCH, 2019
Suit No: CA/OW/215/2015

Before Their Lordships:

AYOBODE OLUJIMI LOKULO-SODIPE J.C.A
ITA GEORGE MBABA J.C.A
IBRAHIM ALI ANDENYANGTSO J.C.A

Between

OKEBRAM MARK – Appellant

And

1. PST. IFEANYICHUKWU IRONU – Respondent
2. ANYACHUKWU IRONU
3. NNMADI IRONU
4. BRIGHT IRONU
5. EBERE IRONU

LEAD JUDGMENT DELIVERED BY ITA GEORGE MBABA, J.C.A.
FACTS OF THE CASE
This appeal is against the judgment of the High Court of Abia State delivered on November 19, 2014 by Hon. Justice C.C. Jones Udeogu.

At the trial Court, the Plaintiffs had sought the following reliefs:
(a) A declaration that the claimants, are according to the native law and custom of Umueze Alala Emede Autonomous Community, Ibeku Umuahia North L.G.A. of Abia State, entitled to succeed to and inherit the estate of Ironu Eboh;
(b) A declaration that the claimants are entitled to the grant of statutory right of occupancy to the pieces or parcels of land which formed the estate of Ironu Eboh, which said estate include among others the following pieces or portions of lands, to wit:
(1) Ala Mmiri, (2) Iyi Achi, (3) Ihu Oku, (4) Oru Mkpuru, (5) Ukwu Udara (6) Ndagbite (7) Isi Ikwu, (8) Uhu Ochie and (9) Ude Ndagbite, which the claimants inherited from Ironu Eboh, according to the custom and tradition of Umueze Alala, Emede, Autonomous Community, Ibeku Umuahia North L.G.A of Abia State, within the jurisdiction of this honourable Court, with an annual value of N100;
(c) N500, 000 general damages for trespass; (d) Perpetual injunction restraining the Defendant, himself, his heirs, agents assigns or privies from further acts of trespass or in any other way interfering with the rights of the claimants over the said land.

The defendant filed a counter-claim, seeking: (a) A declaration that the defendant counter-claimant, being the only surviving grandson of his grandfather called Eboh, is by the native law and custom of Umueze Ibeku in the Umuahia North Local Government Area of Abia State, solely entitled to inherit his grandfathers, estate;
(b) A declaration that, the defendant… being the only surviving ancestral relation of the late Ironu Eboh (the father of 5th Claimant – Counter Defendant) through Eboh’s line, is by the native law and custom of Umueze Ibeku in the Umuahia North Local Government Area of Abia State solely entitled to inherit the estate of the said Eboh, who died intestate and without any surviving male children;

(c) A declaration that the defendant… is by reasons aforesaid, entitled to the statutory right of occupancy to the following pieces or parcel of land: (1) Ala Mmiri (One Parcel of land); (2) Iyi Achi (Four Parcels of land); (3) Oru Mkpuru (Two Parcels of land) ; (4) Ndagbite (Two Parcels of land); (5) Uhu Ochie (Three Parcels of land); (6) Isi Ikwu (One parcel of land); (7) Nchii; (8) Oru Main Road – (Two parcels of land); all of which are situate and lying at Umueze Ibeku in Umuahia North L.G.A. of Abia State, whether seen and treated as Eboh’s parcels of land or Ironu’s parcel of land;
(d) N20, 000,000 being general damages for trespass in that the claimants counter-defendants have at all materials of land without the consent and authority of the Defendant-Counter claimant;
(e) An order of Court directing the Claimants Counter-Defendants to release and/or surrender the parcels of land in sub-paragraph (c) above to the Defendant Counter Claimant as his bone (sic) fide entitlement; (f) An order of perpetual injunction restraining the Claimants Counter defendants, their agents, workmen, or privies from further entry into the parcels of land mentioned in sub-paragraph (c) above, and from further interfering with the right of the Defendant-Counter Claimant to the aforesaid parcels of land – and/or in any other way disturbing the Defendant Counter-Claimant over the parcels of land.
After hearing the case and considering the addresses of counsel and evidence adduced before it, the trial Court held for the claimants (Respondents). Being aggrieved by this decision, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION
The Court determined the appeal on the issues formulated by the Respondent, as follows: (1) Whether the learned trial Judge, considering the evidence before him, was right to hold that the estate of late Eboh was shared by the children at his death. (2) Whether from the totality of the evidence adduced by the Appellant at the Court below, the Appellant was entitled to the grant of the reliefs in his counter claim.

APPELLANT’S COUNSEL SUBMISSIONS
On issue one, the appellant submitted, disagreeing with the holding of the trial Court that it is an age old accepted Igbo custom that to perpetuate a man’s lineage, his unmarried daughter can give birth in his house and by that arrangement, that child is as much the man’s child as any child born by his wife.According to appellant, there is no universally applicable, acceptable or prevalent custom in Igbo land as propounded by both the Claimants and the trial Judge. Appellant also submitted that the respondent failed to prove the custom alleged in line with Sections 16 and 18 of the Evidence Act, 2011.

On issue two, appellant submitted that the respondents did not state how Eboh’s estate was shared by his four children; that the burden was on them to show how the partitioning or sharing was done. He submitted that the trial Court was wrong to hold that the sharing of Eboh’s estate by his children had been established, relying on the Arbitration report in Exhibits B & C. The Appellant concluded that the trial Court did not make pronouncement on the entire verdict of the native arbitration but rather picked and chose the aspect of the verdict to suit its opinion and casted the rest away.

On issue three, Appellant submitted that, the evidence of CW1 was contradictory as although he confirmed the claim of the 5th Respondent that Ironu told the 5th Respondent to stay in his house and procreate, he also stated that the said Ironu had no surviving male child. Under cross-examination, CW1 said Ironu told him about this directive and that he was not there to witnesses it. Appellant argued this was a material contradiction, which cast serious doubt on the entire averments of CW1. Appellant also alleged that the reason the 5th Respondent gave as to why the father instructed her to stay home and procreate in his name was conflicting.

On issue four, appellant submitted that the trial Court was wrong to hold that the estate of Eboh had been shared, relying on Exhibits B and C; that the trial Court did not evaluate, consider, or let alone, assign any probative value to the evidence of DW1, who was over 80 years old and DW3, who testified for the Appellant.

RESPONDENT’S COUNSEL SUBMISSIONS
On issue one, the Respondent submitted that the Respondents had given account of how the properties of Eboh were shared among his children in their pleadings. He argued that the Appellant had even admitted that the Respondents were in possession of the said lands in dispute. Respondent stated that Exhibit C (a replica of Exhibit B) was tendered by Appellant at the trial, and it, clearly, stated that Eboh’s estate had been shared by his four sons. He submitted that the decision of the native arbitration was binding on the appellant since he did not appeal against it and he cannot resile from it. The Respondent submitted that the burden to establish the customs relating to the sharing was on the appellant, who raised the issue.

On issue two, the respondent submitted that the totality of the evidence adduced by appellant did not entitle the appellant to judgment in the counter-claim. He said that the trial Court, having found out as a fact that the estate of Eboh had been shared and that the Respondents were entitled to inherit the estate of Ironu Eboh, it was obvious that the foundation of the Appellant’s claim had collapsed. Respondent further submitted that the trial Court had based its decision on the decision of the arbitration (Exhibits B and C) and since there was no appeal against those findings/holdings of the trial Court, same were binding and conclusive.

RESOLUTION OF ISSUES
The Court in resolving issue one and two, stated that the custom in question did not appear to be of any consequence in the judgment of the trial Court neither did it form the basis of the judgment. That, though the trial Court acknowledged the existence of such custom, the Court stated that the custom cannot help the claimants in this case in view of the decision in the case of Muojekwe v. Ejikeme (2000) 5 NWLR (Pt.493); (1999) LPELR-10237(CA). According to the Court, there is no disputing the fact that the 5th Respondent was one of the daughters of Ironu Eboh, and that the 1st to 4th Respondents are her sons and grand children of Ironu Eboh, which facts were pleaded in paragraphs 7 and 8 of the statement on Oath of CW3 (5th Respondent) and was corroborated in evidence by the CW1, Sunday Onyiwara, the 80 years old cousin of the 5th Respondent and Appellant.

The Court upheld the findings of the trial Court that the Appellant could not and cannot stop the Respondents, including the 1st – 4th Respondents, from inheriting their father/grandfather (Ironu’s) estate, including his (Ironu’s) share in Eboh’s estate, as there were credible evidence that Eboh’s properties (estate) had been shared among his (Eboh’s) 4 sons, including Ironu and the father of the Appellant. The Court relied on the recent judgment of the Court of Appeal in Aduba & Ors v. Aduba (2018) LPELR-45756 (CA).

On a final note, the Court held that the appellant had voluntarily submitted to the said Arbitration and accepted the decision. He cannot resile or be allowed to resile from it, especially as regards the fact that Eboh’s estate had been shared among his 4 sons. The Court held that the Appellant cannot, therefore, wish away the clear statement contained in Exhibits B and C, that Eboh’s estate had been shared; and the decision of the Court that Ironu Eboh was entitled to his share of the said estate, which the 5th Respondent and her children inherited, on the death of Ironu. The Court relied on the following cases to buttress the binding nature of Native arbitration and when applicable: Ojibah v. Ojibah (1991) LPELR – 2374 (SC); Onyenge & Ors v. Ebere (2004) LPELR – 2741 SC; Onyenawuli v. Onyenawuli & Anor (2017) LPELR – 42661 (CA); Agu v. Ikweibe (1991) 3 NWLR (Pt.180) 385 (SC), (1991) LPELR-253(SC); and Oparaji v. Ohanu (1999) 9 NWLR (Pt.618) 290, (1999) LPELR-2747(SC).
The Court resolved both issues against the Appellant and held that there was no merit in the appeal.

HELD
On the whole, the Court found the appeal unmeritorious and dismissed it.
Appearances:
Dr. H.U. Akotaobi with him, C.E. Onyekwere (Miss) – For Appellant
S.U. Apu, Esq. – For Respondents

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