➥ CASE SUMMARY OF:
Christopher Egbogu Iwuji Duru V. Nnamdi Akodum Duru (CA/OW/306/2013, 10 May 2016)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Biological child;
➥ CASE FACT/HISTORY
The Plaintiffs’ claim at the Lower Court was for: “(a) Declaration that the plaintiff is entitled to Right of Occupancy over the piece or parcel of land known as “AMAUKWU NKODUM” being the only surviving child of Late Nkodum Uwah Duru according to native law and custom. (b) Declaration that the plaintiff is entitled to inherit the property of Nkodum Uwah Duru (late) of Umueze Obokpo Ubomiri in Mbaitoli Local Government Area. (c) ₦1000,000.00 (One Million Naira) being damages against the Defendant. (d) Perpetual Injunction restraining the Defendant, his servants, agents or privies on the said land.”
After hearing the case, taking evidence and considering the addresses of Counsel, the learned trial Court said, on page 165 of the Records of Appeal: “In all, as above stated, the case of the defendant leaves much to be desired. He only came to Court to try his luck. I therefore enter judgment in favor of the claimant. As for damages claimed, the defendant is condemned to pay him the sum of ₦100,000.00 (One Hundred Thousand Naira) only and costs fixed at ₦20,000.00 (Twenty Thousand Naira) only.”
Dissatisfied, Appellant (who was the Defendant at the trial Court) filed several notices of appeal.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]
↪️ I. Whether on the totality of the pleadings, evidence and sole issue settled for determination, the judgment of the trial Court in favour of the Respondent should be set aside?
RESOLUTION: IN APPELLANT’S FAVOUR.
[THE RESPONDENT IS NOT THE ONLY MALE CHILD OF HIS FATHER
‘Late Nkodum Uwah Duru had no surviving male child before he allegedly married Nduwuchi, his late uncle’s wife. Iwuji Duru, who died earlier, in 1937, was junior in age to Nkodum Duru. Nduwuchi, Appellant’s mother gave birth to the Appellant and his brother, Clement, after the death of Iwuji, by which time she was said to have married Nkodum, according to native law and tradition, which permitted the widow to marry a relation of the deceased husband, to continue to remain in the family, as a wife. Meanwhile, Susan Obiageri, the last daughter of Nkodum Uwah Duru, had the Respondent (Claimant), out of wedlock, while still living with the father, and she claimed, it was the father’s arrangement for her to give him a male child. See her statement on oath on page 42 of the Records of Appeal. She said the father (Nkodum Uwah Duru) adopted the Claimant as his only son, and treated him as such. She deposed that the Appellant (her brother of a different mother) was not a child (son) of her father. Of course, she did not come to Court to give the evidence and be cross examined, and so her evidence, repeated by the Respondent amounted to hear-say, in my opinion. Moreover, Respondent could not have been the only male child of Ndokum, when Appellant and his brother, Clement, had been born before Susana Obiageri conceived of the Respondent! Was the trial Court right to hold for the Respondent (Claimant at the Lower Court), that he was the only male child of the deceased, entitled to inherit the estate of Nkodum Duru as sole heir.’
‘I agree with the trial Court that attempt to deny the Respondent right to the Mgbala, given to his mother, simply because he was born out of wedlock (albeit on the same status as the Plaintiff, as male grandchild of the family of Igbozuruike) would be discriminatory and deprivative, as the alleged custom, sought to rely on (if in existence) would be unconstitutional, null and void, and would offend the Provisions of Section 18 (3) of the Evidence Act, 2011, … That Section says: “In any judicial proceedings, where any custom is relied upon, it shall not be enforced as law, if it is contrary to Public Policy, or not in accordance with natural justice equity and good conscience.”’
APPELLANT IS SENIOR TO THE RESPONDENT
‘Under cross examination, the Respondent admitted that Appellant was senior to him (Respondent) in age and was the head of Nkodum Duru family, see pages 115 and 117 of the Records, respectively. He also admitted that when Nkodum Duru died, his children pledged his land to Chief Magistrate Amadi for ₦30,000. And with this they buried him.’
‘The Respondent, had alleged that he was the only surviving child of the late Nkodum Uwah Duru (or the surviving biological son of the deceased), entitled to inherit the estate of the late father, in accordance with the native law and custom of Umueze Obokpo Ubomiri in Mbaitoli Local Government Area. But the evidence, led by him (Respondent), rather revealed that he was not a biological son of the late Nkodum Uwah Duru but a grand son, who was adopted by the grand father. He also led evidence to show that the Appellant (whom he (Respondent) changed name for the purpose of the case to CHRISTOPHER EGBOGU IWUJI DURU”, instead of Christopher Nkodum Duru”) was the head of Nkodum Duru family (See page 117 of the Records of Appeal) and that he (Appellant) was born, after the death of Iwuji by Nduwuchi. It was also the Respondent who supplied the evidence that Appellant was Senior in age to him (Respondent) and that Iwuji died in 1937, while Nkodum died in 1978. There was also evidence that Nkodum Duru had other children, including Clement and Susana Obiageri, who were still alive.’
‘The arbitration document, which each party in this case cited and relied on, showed the proper name of the Appellant as Christopher Nkodum Duru and that he was older than the Respondent, and the disputed property, was jointly owned (See page 101 of the Records). There was evidence, that the mother of Appellant (Nduwuchi) was married by Nkodum Uwah Duru), after the death of his uncle, Iwuji Duru, and that she Nduwuchi had, not only Christopher (Appellant) for Nkodum, but also Clement Nkodum Duru, before the Respondent was born by their sister Susana Obiageri, out of wedlock, and accepted/adopted by Nkodum Uwah Duru. See page 67. There was no evidence to controvert or deny the fact that Nkodum Uwah Duru married Nduwuchi after the death of Iwuji (her former husband), and that Appellant and his brother Clement were born, after the death of Iwuji and during the subsistence of their mother’s 2nd marriage (to Nkodum Uwah Duru). The Respondent had deposed that Nduwuchi remained in the family, after the death of Iwuji: who then impregnated the woman to give birth to Appellant and Clement. Respondent had no answer for this, and carefully evaded who was Appellant’s father since he admitted Iwuji had died at the time he was born!’
‘It is sad the learned trial judge could say all that, in the face of the overwhelming evidence (even supplied by the Respondent) to the contrary. Did the trial Court not hear/see/read that Nduwuchi married Nkodum, after the death of Iwuji Did he not read the claimants affidavit, that Appellant was born after the death of the said Iwuji Did he not see the statements on oath of Defendant, that he did not accept the name given him in the suit and had protested when he gave evidence (pages 130 and 133 of the Records) Did the trial Court not see the document tendered by the Respondent, said to be the arbitration report (decision) of the village elders over their dispute about the sharing of Nkodum’s property on page 107 of the Record of Appeal. In that document by Umueze Obokpo Village Meeting dated 30/12/2003. it is obvious, the name of Appellant, as written by the Village was CHRISTOPHER NKODUM DURU just as that of Respondent was PROPHET NNAMDI DURU and they were acknowledged as the children of Nkodum Uwah Duru (with the latter being adopted, son of Nkodum’s daughter, Susana Obiageri.’
‘It will be strange, and an absurd custom, to elevate an adopted son to the position of sole heir of the estate of a man, who died, leaving behind his biological children sons and daughters, and to allow him (adopted son) to replace, supersede and/or deny the biological children a share in the estate of their father. Such native law and custom (if it exists) would be obnoxious and unable to meet the repugancy test. See Section 18 (3) of the Evidence Act, 2011, and Section 20 of the High Court Law of Imo State.’]
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.
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✓ DECISION:
‘I resolve the issues for the Appellant and hold that the appeal is meritorious and is allowed. I set aside the decision of the trial Court, delivered on 14/1/2013 by Justice Ngozi Opara in the Suit No. HOW/794/2008 as the same was offensive, flawed and perverse. The Respondent shall pay the cost of this appeal, assessed at ₦50,000.00 (Fifty Thousand Naira) only.’
➥ FURTHER DICTA:
⦿ RESPONDENT CANNOT DISTILL ISSUES FROM APPELLANT ISSUES
I do not think the law permits a Respondent to distill issues for the determination of appeal, from the Appellant’s issue(s) for determination of the appeal. Issue(s) for determination of appeal can only be distilled or formulated from the grounds of appeal by the Appellant, and the Respondent by law, has no room to formulate issue(s) for determination of appeal, outside the grounds of appeal raised by the Appellant, except where he (Respondent) cross appealed or filed a Respondent’s Notice on the fresh or stranger issue formulated by him. See Onuegbu and Ors v. Gov. of Imo State and Ors (2015) 8 CAR 224 at 240; (2015) LPELR – 25968 (CA). In the case of Cletus Anyalenkeya v. Engr. Godson Anya and Ors (2016) LPELR-40218 CA, delivered on 18/3/16, this Court held: “Appeals are considered on issues, distilled from grounds of appeal and, where an issue for determination does not flow from or relate, properly, to the ground of appeal, the same simply floats, without a base, and must be ignored or struck out. Authorities on this are replete. See Musa v. State (2014) LPELR-22562 (CA); Ossai v. FRN (2013) 13 WRN 87; Oseni v. Bagulu (2010) All FWLR (pt.511) 813; Shettima v. Goni (2011) 18 NWLR (pt.1279) 413.” — I.G. Mbaba JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Ita George Mbaba, JCA.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
O.S. Akinola Esq.
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
