⦿ CASE SUMMARY OF:
Chief O. N. Nsirim v. Aleruchi Etcheson Nsirim (2002) – SC
– Marriage in customary law;
– Title to land;
– Estoppel, laches, acquiescence;
Chief O. N. Nsirim
ALERUCHI ETCHESON NSIRIM
(2002) 3 NWLR (Pt.755) 697;
(2002) 2 S.C (Pt.1) 47
⦿ LEAD JUDGEMENT DELIVERED BY:
A. I. Iguh, J.S.C.
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– W. Boms Esq.
* FOR THE RESPONDENT
– M. O. Abudu Esq.
The plaintiff averred that the land in dispute formed part of the portion of their family land which was allocated to his great grand father, Akwaka, and that he inherited the same as the only surviving male child of his late father.
He stated that the defendant was only the son of DW2, his elder sister of full blood, whose husband was DW 1, one Adele Nlerum. He averred that the defendant being the son of the said DW1 who did not belong to their family was not entitled to inherit the property of the plaintiff’s great grand father.
The plaintiff claimed that the defendant unlawfully broke into the land and started construction work thereon without his prior consent hence this action.
The defendant for his own part, claimed that the land in dispute formed no part of the land which belonged to Kpakani. He averred that the land belonged to the Okpoko family who acquired the same as a spoil of war after successfully fighting the Rumueme and Rumopara wars. The defendant claimed that he bought the land in dispute from the Okpoko family in 1978 and was issued with a receipt for the money he paid. He also obtained a conveyance in respect of the transaction. He further claimed to have farmed on the land for a while before he erected his New Era Hotel thereon without let or hindrance from the plaintiff or anyone else. He completed the erection of his hotel on the land in 1981. Consequently, he relied on the plea of laches and acquiescence as part of his defence. More importantly, the defendant asserted that his father, DW1, at no time married his mother DW2 under their applicable Ikwerre customary law. As a result he was a full member of the family of his mother, DW2, that is to say, the plaintiff’s family.
He contended that as a member of that family, he had equal rights with the plaintiff and the other male members of the family in respect of the enjoyment of their family properties including land.
The defendant in support of his assertion relied on the plea of estoppel as a bar to the plaintiff’s denial that he is a member of that family. He argued that the plaintiff having regard to his various conduct which he particularised was estopped from claiming that the said defendant did not belong to the plaintiff’s family.
The courts below gave verdict in favour of the defendant (herein, the respondent).
The plaintiff (herein the Appellant) has appealed before this Supreme Court.
1. Whether the plaintiff/appellant has proved title to the land in dispute.
2. Whether the plaintiff/appellant proved the existence of any marriage between the appellant’s sister DW2 and the defendant’s/respondent’s father, DW1, so as to disentitle the defendant/ respondent from inheriting any part of Nsirim’s property.
3. Whether on the facts of this case, the pleas of estoppel, laches and acquiescence avail the defendant/respondent.
⦿ HOLDING & RATIO DECIDENDI
ISSUE 1: The Supreme Court gave judgment in favour of the respondent.
i. Whereas by the appellant’s pleadings, the land in dispute was founded by and therefore originally belonged to members of Kpakani family by dint of first settlement or occupation, the appellant’s evidence on the same issue was that the said land originally belonged to Kpakani who was the first settler or occupier thereof and that it was at a later date that he shared the land amongst his three children. This discrepancy seems to me fatal to the appellant’s case for if the evidence of a party is at variance with his pleadings, the claim would fail and stand dismissed. Parties are bound by their pleadings and evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded by the Court.
ISSUE 2: For this issue, the Supreme Court gave judgement in favour of the respondent.
ISSUE 3: For this issue, the Supreme Court relied on the facts found by the trial Court and gave judgement in favour of the respondent.
i. He [Judge] went on: “I have seen from the totality of the above findings of fact that the plaintiff is estopped from denying that the defendant is not a member of his family and therefore “not entitled to any share of properties or any rights over any properties of Akwaka Kpakani, the plaintiffs great grand father.” If the defendant was never a part of the plaintiff’s father’s family, how did he come about building a house there for him and the mother (DW2). He did so because defendant is his nephew, being the son of DW2 his elder sister. He did so because he believed that defendant belongs to his (plaintiff) father’s family. By this conduct he is estopped from contending the contrary.”
ii. The trial court next turned to the respondent’s name and commented: “Defendant bears the same surname as the plaintiff. For purposes of repetition and at the expense of sounding prolix, it is NSIRIM. The spelling is the same. It is a six letter name. And it is likely to be an Ikwerre name. And by the evidence before me the defendant has been bearing this name right from his birth. And he is now above forty years. The question is this: Why did the plaintiff allow the defendant to use his dear father’s name for so long a time. Why should he now challenge the defendant’s right to use the same after more than forty long years? Again, the plaintiff is caught by the plea of estoppel and he cannot run away from it in law. No, he cannot.”
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
It is trite law that in a claim for declaration of title to land, the onus of proof lies on the plaintiff who must succeed on the strength of his case and not on the weakness of the defendant’s case except, of course, in cases where the defendant’s case itself supports the plaintiff’s case and contains evidence on which the plaintiff is entitled to rely. – Iguh, JSC. Nsirim v. Nsirim (2002)
If the evidence of a party is at variance with his pleadings, the claim would fail and stand dismissed. – Iguh, JSC. Nsirim v. Nsirim (2002)
In this regard, the point must be made that native law and custom, otherwise also referred to as customary law, are matters of evidence on the facts presented before the court and must therefore be proved in any particular case unless, of course, they are of such notoriety and have been so frequently followed or applied by the courts that judicial notice thereof would be taken without evidence required in proof. – Iguh, JSC. Nsirim v. Nsirim (2002)
In the first place, it is trite law that a trial Judge having had the opportunity of hearing witnesses and watching their demeanour in the witness box is entitled to select witnesses to believe or facts he finds proved and the Court of Appeal should not interfere with such facts unless they are perverse. – Iguh, JSC. Nsirim v. Nsirim (2002)
So, too, this court will not ordinarily interfere with the concurrent findings of the trial High Court and the Court of Appeal on essentially issues of fact where there is sufficient evidence on record to support them and where there is no substantial error apparent on the record of proceedings unless special circumstances are shown such as violation of some principle of law or procedure or where such findings are shown to be perverse or patently erroneous and a miscarriage of justice will result if they are allowed to stand. – Iguh, JSC. Nsirim v. Nsirim (2002)