⦿ CASE SUMMARY OF:
Anthony Aduba & Ors v. Titus Aduba (2018) – CA
by PipAr Chima
Court of Appeal – CA/OW/90/2012
⦿ JUDGEMENT DELIVERED ON:
⦿ AREA(S) OF LAW
Fostering a child.
⦿ NOTABLE DICTA
* ONLY ONE ISSUE CAN ARISE FROM A GROUND OF APPEAL
It should, however, be noted that, Appellant had distilled their Issue one from grounds 1, 2 and 5 of the Grounds of the Appeal, and thereafter, distilled the Issue 3 (which the Respondent attacked, mistaking it for Issue 4) from the same ground one of the appeal. Appellants cannot do that, as it would amount to proliferation of issues. Having earlier used the ground one, together with grounds 2 and 5, to distill the issue one, the said ground one was no longer available to donate another issue for the determination of the appeal. We have held repeatedly, that a ground of appeal cannot be split to generate issues for determination, and that, once an issue has been distilled from a given ground of appeal, the said ground of appeal is no longer available to give birth to another issue for determination, either alone or in conjunction with other grounds of appeal. Where a ground of appeal has been used to formulate an issue for determination, using it again to formulate another issue will corrupt that other issue for determination and render it incompetent. – Mbaba JCA. Aduba v. Aduba (2018)
* PURPOSE OF A REPLY BRIEF
A Reply Brief is meant to explain or contest fresh issue of law raised in the Respondents brief, which was not canvassed in/by the Appellants Brief. – Mbaba JCA. Aduba v. Aduba (2018)
* ONCE ADOPTED ALWAYS ADOPTED
I think this case is at the root of National Public Policy and constitutional rights of persons/citizens in our jurisprudence. Where a child, taken from an orphanage or Social Welfare Department, is adopted or received and integrated into a family setting and given a name or allowed the name of the family of the adoptor(s), or person who shows love and benevolence to the unfortunate child, he should not and cannot be left at the vice or mercy of the other children/relations of the adoptor(s), be they biological children or other beneficiaries of the estate of the adoptor(s).It would be wrong, in my view, to remind and play back the sad and ugly circumstances of the childs birth, taunt, mock and discriminate against him, and subject him to ridicule, just because somebody wants to deny him the benefit(s) of the estate of his adoptor. – Mbaba JCA. Aduba v. Aduba (2018)
* ADOPTION OF A CHILD CANNOT BE QUESTIONED LATER BY THIRD PARTIES
And whether the word adoption of a child, is used in the strict, legal and statutory sense, or loosely, I think, once it is shown that the child was intentionally accepted and integrated into the family, and made to feel a sense of belonging by the adopting parent(s) or person(s), nobody should or can rise up to question the good gesture of the adopting parent(s) or person(s), and deny the child (now grown adult) share in the covering, gains, benefits or liabilities, accruing from the common patrimony or estate of the adoptor(s) or person(s), who adopted the child. – Mbaba JCA. Aduba v. Aduba (2018)
* THERE IS A PRESUMPTION OF REGULARITY OF OFFICIAL ACTS
If there was any short coming in the Exhibit F, that made it to fail to comply with the adoption laws of Eastern Nigeria, as alleged by the Appellants, that cannot, in my opinion, be the fault of the Respondent or his adoptors, Aduba and his wife, and would not discount from the presumption of its regularity as official Government instrument, authorizing the acceptance and adoption of the Respondent into the home of Mr. and Mrs. Aduba Nwaemere as a member of their family. In the eye of the law, the presumption of regularity of official act remains strong (See section 168 of the Evidence Act 2011), and so is Exhibit F presumed in favour of the Respondent. Again, equity looks as done, that which ought to be done. – Mbaba JCA. Aduba v. Aduba (2018)
* ONLY SONS INHERITING PROPERTY IS REPUGNANT
Appellants had relied on their customs, to say that only biological sons of a family can inherit their fathers landed property. Of course, such old and oppressive laws in Igbo land have since been reviewed by case law, pursuant to Section 42 of the 1999 Constitution, as amended. – Mbaba JCA. Aduba v. Aduba (2018)
* FINDING OF COURT NOT APPEALED
The law is that a finding or holding of a Court, not appealed against or challenged, remains binding and conclusive. – Mbaba JCA. Aduba v. Aduba (2018)
* VANITIES OF THE WORLD
It was most unfortunate and excruciatingly uncomfortable that because of the vanities of the world, the Appellants who grew up together with the Respondent as members of one family, and whose parents in their wisdom and benevolence, and in particular, legitimately, accepted and received the Respondent as a member of their family, would dramatically turnabout to disown him, question his legitimacy and membership of their family as established by their late parents. – Mbaba JCA. Aduba v. Aduba (2018)
* RESPONDENT WAS ADOPTED TO BRING PRIDE
The Respondent was received into their family when he was five years old and he knew no other parents than the Late Aduba Ohagwam Nwaemere and the Late Mrs. Felicia Nwugo. He was adopted to bring succour and sense of belonging and pride to the said late Felicia Nwugo whose only biological son died sometime before the adoption or acceptance of the Respondent in 1972. – Mbaba JCA. Aduba v. Aduba (2018)
Anthony Aduba & Ors.
⦿ LEAD JUDGEMENT DELIVERED BY:
ITA GEORGE MBABA, J.C.A.
* FOR THE APPELLANT
– Chief F.O. Onyebueke.
* FOR THE RESPONDENT
– Chief I.M. Kadurumba.
⦿ CASE HISTORY
This is an appeal against the judgment of the Imo State High Court in Suit No. HAM/9/2002, delivered on 29th March, 2011, by Hon. Justice U.D. Ogwurike, wherein the learned trial Court held for the Plaintiff, that he was the adopted son of Aduba Ohagwan Nwaemere, and that he was entitled to the Customary Right of Occupancy of the land and building in dispute. The Court also nullified the partitioning of the family land of Aduba Ohagwan Nwaemere, and made an order of perpetual injunction against the Defendants, against discrimination of the Respondent and his family.
The Plaintiff sued at the Trial Court for, inter alia, “a declaration of the Court that the purported sharing or partitioning of the landed estate of Nwaemere Aduba by the Defendants among themselves, in exclusion of the Plaintiff, is discriminatory, null and void and therefore of no effect.”
The facts of this case show that the Respondent was received and accepted by the parents of the Appellants in 1972, when the Respondent was only five years old, from the Ministry of Health and Social Welfare. Exhibit F is the document showing where, when and how the Respondent became a member of the family of Aduba Ohagwam Nwaemere and Felicia Nwugo Aduba. Aduba Ohagwam Nwaemere married two wives, Felicia Nwugo Aduba and Ihuoma Aduba; Felicia Nwugo Aduba was the first wife. She had a son for Aduba, but the son died at young age. She also had female children. The second wife, Ihuoma, had many male children, including the Appellants. After the death of the only male child of Felicia for her husband, the two opted for adoption of the Respondent at the Ministry of Health and Social Welfare, East Central State, in 1972, as shown in Exhibit F. The Respondent adopted or was given the name of the family (Aduba) and was absorbed and treated as a child of the family, trained and nurtured by Aduba and Felicia as their son. He grew up with the other children, including Appellants,into adult-hood, married in 1990 and begot children of his. Nobody challenged his status as a member of the family, while the parents were alive. After the death of Aduba Ohagwam Nwaemere and his wife, Felicia Aduba, the Appellants came up with the idea that the Respondent was not a member of late Aduba Nwaemere family. The 3rd Appellant in particular alleged that the Respondent was a stolen child brought into the family by PW2, Comfort Aduba, and he wrote a petition to the Police. They excluded him (Respondent) in the share of the estate of their father Aduba Ohagwam Nwaemere. Hence, this Suit by the Respondent to challenge the Appellants.
⦿ ISSUE(S) & RESOLUTION
[APPEAL: DISMISSED, with N50,000]
1. Was the trial Court right when it held that the Respondent was an adopted son of Aduba Ohagwam Nwaemere and Felicia Nwugo Aduba, to entitle him to share in the landed property and estate of Aduba Ohagwam Nwaemere, given the evidence and the circumstances of this case?
RULING: IN RESPONDENT’S FAVOUR.
I. I do not think the Appellants would have the vires to reject the Respondent and strip him of the covering, protection and legacy which their parent(s) bestowed or transferred to the Respondent, by reason of his acceptance, adoption, training and nurturing as a son of the family. Appellants, in my opinion, lacked the Power to overrule their father, in death. Of course, part of the legacies which the Respondent got from Aduba Ohagwam Nwaemere and Felicia Aduba was the family name Aduba which they donated to the Respondent, and which stuck to him, right from when he was 5 years old, and now gives him and his wife and children, identity. That, to me, is part of the benefits of the estate of a parent to children, being their family identity. It does not lie in the other children (Appellants) to deny the Respondent that identity, or to strip him of the name given to him by their father.
II. Of course, apart from the Respondent, who asserted the fact of his adoption by Aduba Ohagwam Nwaemere and his wife, Felicia, his sisters (who are/were also sisters of the Appellants) PW2 and PW3, as well as the traditional ruler of their Community, PW4, all gave evidence that the Respondent was an adopted child/son of the family of Aduba, and accepted member of the Aduba family. They (PW2 and PW3) gave evidence of how their parents acknowledged, accepted, regarded and treated the Respondent as their son; that they themselves, accepted and treated the Respondent as their brother, even up to date!
III. It is glaringly clear that the Respondent is being discriminated against by reason of the circumstances of his birth. The Appellants late father accepted and acknowledged him as the son of his first wife and so shall it continue to be. Whether the late parents were designated as foster parents or not, the scenario seemed to me an informal adoption. It may be interesting to note, as had been asserted by many writers that informal adoption takes the form of the adopter taking into his family the child of a relative or an orphan. The child is brought up and treated as the other children of the adopter. This arrangement if continued over a long period may mature into an adoption. The process is one by which foster-parentage matures in time into adoption. Also, where a widow with a child or a single mother (re)marries, she may bring her child into the marriage.
2. In respect of the very land in dispute, was the trial Court right to hold that the land and the building therein belonged to the PW2, Comfort Aduba (not Aduba Ohagwam Nwaemere) and to grant the Respondent customary right of occupancy thereof, upon proof of exclusive possession, with the consent of PW2?
RULING: IN RESPONDENT’S FAVOUR.
I. Evidence disclosed that PW2, Comfort Aduba, was the owner of the land and building, having acquired the land from the DW1, through their father, Aduba Ohagwam Nwaemere (whom she gave the money to pay to DW1). Evidence also showed that she (PW2) built her house on the land, making it a home for her parents and brothers. Exhibit A shows a receipt of the Sum of N200.00 from PW2 by the DW1 for the lease of the land for 99 years. The transaction was witnessed by many people, including Charles Aduba (3rd Appellant) and Felicia Aduba (mother of PW2). As part of the receipt, it was stated: Miss Aduba (Comfort) is free to make use of this land extended to her entire family or to those whom she can empower to do so. (See page 98 of the Records).
II. The trial Court had held: It is in evidence and not in dispute that the Plaintiff is the one now in possession of the land and house in dispute. The DW3 (the 3rd Defendant) and the Defendants witnesses, DW1 and DW2, admitted, under cross-examination, that the Plaintiff and members of his family are the only persons living in the said house; that the defendants packed out of the house with their mother during the life time of their father when the defendants completed their own house It is observed that the PW2, Miss Comfort Aduba, who the Plaintiff states purchased the land and erected the house thereon is not opposed to the grant of right of occupancy in the land in dispute to the Plaintiff, her brother. (Page 340 of the Records).
I cannot fault that sound reasoning of the learned trial Judge, as I uphold the same, and hold that the Respondent was entitled to the grant of customary right of occupancy.
⦿ ENDING NOTE BY LEAD JUSTICE – Per IBRAHIM ALI ANDENYANGTSO, J.C.A.
The conduct of the appellants which gave rise to the litigation in the lower Court and consequently this appeal, is offensive to the provisions of Section 42 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The conduct of the Appellants is inequitable. The conduct of the Appellant is repugnant to natural justice. In fact it is reprehensible. No Court of law and justice will accede to the whims and caprices of the Appellants.
⦿ REFERENCED (STATUTE)
S. 42 of the Nigerian Constitution 1999 (as amended);
⦿ REFERENCED (CASE)
* FUNCTION OF A REPLY BRIEF
In Ecobank Plc v. Honeywell Flour Mills Plc (2018) LPELR 45124 (SC), it was held: I need to emphasize that the function of a Reply Brief is to answer the arguments in the Respondents brief which were not taken in the Appellants brief. It is not meant to be a repetition of the arguments in the Appellants brief. It is not an opportunity to re-emphasize the arguments in the Appellants brief.
⦿ REFERENCED (OTHERS)
* ADOPTION BY ESTOPPEL
Blacks law Dictionary, 8th Edition page 52 talks about adoption by estoppel, which it defines as: An equitable adoption of a child by one who promises or acts in a way that precludes the person and his or her estate from denying adopted status to the child; an equitable decree of adoption treating as done that which ought to have been done. Such a decree is entered when no final decree of adoption has already been obtained, even though the principal has acted as if an adoption has been achieved.
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