ITA GEORGE MBABA, JCA (Delivering the Leading Judgment): This appeal is against the final judgment of Imo State High Court in Suit No. HOW/794/2008, delivered on 14/1/2013 by Hon. Justice Ngozi Opara, wherein, his lordship entered judgment in favour of the plaintiff (Respondent herein) and awarded damages of ₦100,000.00 (One Hundred Thousand Naira) to him and cost of ₦20,000.00 (Twenty Thousand Naira) only.
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. He did on 22/2/13 (pages 198-204), on 28/3/2013 (pages 269-272), and on 21/3/2013 (pages 272 A to 272 H), respectively, of the Records of Appeal. At the hearing of the appeal. Appellant elected to rely on the 2nd Notice of Appeal, filed on 28/3/2013, disclosing 4 grounds of appeal. Appellant filed his brief of argument on 7/2/14 and distilled a lone issue for the determination of the appeal, namely:
"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. (Grounds 1, 2, 3 and 4)."
The Respondent filed his brief on 14/3/14 and said:
"From the lone issue nominated by the Appellant's Counsel, I will distill three issues for determination and these issues are:
(1) Whether the reframing of the issue for determination by the Respondent's Counsel and adoption of same by the trial Court breached the Appellant's right to fair hearing
(2) Whether in the entire circumstances of this case the respondent did not prove his case before the Court below on the balance or preponderance of cogent, credible and probable evidence as required by law
(3) Whether the award of ₦100,000.00 (One Hundred Thousand naira) damages by the trial Court to the claimant respondent was unconscionable"
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."
Appellant, however, filed a Reply brief on 20/3/14 to the Respondent's brief. I shall consider this appeal on the sole Issue donated by the Appellant.
Arguing the appeal, on 22/3/16, learned Counsel for the Appellant, O.S. Akinola Esq (of D.C. Denwigwe, SAN and Associates), who settled Appellant's brief, said the burden of proof was on the Respondent to prove his assertion that he was the biological first son of late Nkodum Uwah Duru, as the law is for one who asserts or alleges to prove his assertion or allegation. He relied on Agbi v. Ogbeh (2005) 8 NWLR (pt.926) 40 at 110; Owir v. Ighiwi (2005) 5 NWLR (pt.917) 184 at 217. He argued that misplacement of the burden of proof, invariably, occasions miscarriage of justice and relied on Omobruchere v. Esegina (1986) 1 NWLR (pt.19) 799 at 805; PHMB v. Ejitagha (2000) 11 NWLR (pt.677) 154 at 160 161; Osasuwa v. Isibor (2000) 3 NWLR (pt.859) 16 at 43; Olanloye v. Fatunbi (1999) 8 NWLR (pt.164) 203 at 225 161.
Counsel submitted that the trial Court occasioned a miscarriage of justice against the Appellant, when he placed the burden on him to prove that he was the biological first son of Nkodum Uwah Duru (deceased); he said that the evidence on record had revealed a common ground between the Appellant and the Respondent, that Appellant was older than the Respondent in age and was the head of the Nkodum Uwah Duru family, the ofo title holder of the family and the person that showed the Respondent where he built in the Nkodum Uwah Duru compound. He said that there was evidence that Appellant was born through a marital relationship or at least, a co-habitation between his mother (Nduwuchi) and the said Nkodum Uwah Duru (deceased), whom the Respondent claimed to be his father. Thus, it goes without saying therefore that Appellant was the surviving biological 1st son of the late Nkodum Uwah Duru. He argued that, as between the Appellant and the Respondent, the burden was on the Respondent to rebut that presumption, but, unfortunately, the trial Court misplaced the burden, when it said that Appellant did not lead evidence to corroborate his story and that he came to Court to try his luck. He said that had occasioned a miscarriage of justice to Appellant.
Counsel added that the Respondents mother, who was still alive and who had deposed to a statement on oath (page 42 of the Records), was in a better position to tell the Court the biological father of the Respondent, but she was not called, because the Respondent was apprehensive the mother would let the cat out of the bag, under cross examination. He urged us to invoke Section 167 (d) of the Evidence Act, 2011 against the Respondent for not fielding the mother of the Respondent, but as a witness, saying her evidence would have been against her son. He relied on the case of Daniel-Kalio v. Daniel-Kalio (2005) 4 NWLR (pt.915) 305 at 325.
Counsel argued that, after having adopted the sole issue at the Lower Court for the determination of the appeal, the Respondent was bound to fight the case on that issue. He relied on Order 25 Rule 3(a) of the High Court (Civil Procedure) Rules, 2008, saying that settlement of issues supersedes pleadings. He relied on Anyaorah v. Anyaorah (2001) 7 NWLR (pt.711) 158 at 185.
Counsel said that it is not the place of the Court to nominate and try a case different from or outside the case on which the parties have joined issues - Okere v. Amadi (2005) 14 NWLR (pt.945) 545 at 559; Haruna v. UniAgric Makurdi (2005) 3 NWLR (pt.912) 233 at 281. Counsel added that the liberty which the Court has to reframe issue(s) for determination, where the issue(s) nominated by the parties is in appropriate, does not permit the Court to build a new case for the parties, suo motu, especially, at the point the parties have lost opportunity to lead evidence and or address the Court on the issue. He relied on Unokan Enterprises Ltd v. Omuvwie (2005) 1 NWLR (pt.907) 293 at 313.
Counsel referred us to page 112 of the Records, where the trial Court stated the sole issue agreed by the parties for the determination of the case, but said that the trial Court reframed that issue, suo motu, in the final judgment, at a point the parties had lost every opportunity to lead evidence and address the Court on the issue. He referred us to page 162 of the Records of Appeal and said that Appellant was denied fair hearing, by so doing and so the decision is void. He cited the case of Enigwe v. Akaigwe (1992) 2 NWLR (pt.225) 505 at 535; Okafor v. A.G. Anambra State (1991) 6 NWLR (pt.200) 659 at 678.
Counsel argued that the Appellant did not need to call evidence to demonstrate that he was the biological 1st son of the Nkodum Uwah Duru (late) in the face of the evidence on record, as per pages 37-41, 86-89, 105-106 and 113-133 of the Records of Appeal. He added that civil case are proved on preponderance of reliable evidence, not on the number of witnesses; that the decisions of a Court must be supported by reasonable evidence. He relied on Goodnews Agbi v. Adudu Ogbe (2005) 8 NWLR (pt.926) 40 at 110 111 and 142-143; Goodnews Agbi v. Audu Ogbe (2006) 11 NWLR (pt.990) 95 at 123.
On the award made by the trial Court, Counsel said the claim of the Respondent and the decision of the trial Court were unconscionable and deserved condemnation, as the trial Court reversed the order of justice and rewarded the Respondent with ₦100,000.00 damages, when it was the Appellant that was ousted from his ancestral home by his nephew, born by his half sister, at his over 70 years of age, without any choice of where else to go. He argued that award of general damages is made by a Court by way of exercise of judicial discretion, which must be done judiciously and judicially in favour of a party, as compensation for loss incurred and as a natural fall out of deserved success in a case. Counsel submitted that the judgment was not supported by pleadings, evidence and the sole issue adopted for the determination of the suit. He urged us to resolve the issue for Appellant and allow the appeal.
Counsel for the Respondent Ikechukwu Dike Esq, on the agreed issue for determination of the Suit (settled at the pre-trial) said the issue was reframed at the point of Respondents address, when he posed:
"Whether under the custom and tradition of Umueze Obokpo Ubomiri, between the Claimant and defendant, who is the son of late Nkodum Uwah Duru and consequently, the heir and successor in title to the estate of Nkodum Uwah Duru."
He argued that the trial Court is entitled to reframe or re-formulate issue(s) for determination of a suit, where he finds out that the issue adopted by parties is clumsy or unclear; he said that the interest of justice demands this. He added that issue for determination of a Suit can only supersede the pleadings, when the issue(s) is distilled from the pleadings. He relied on the case of African International Bank Ltd v. Integrated Dimensional System Ltd (2012) MRSCJ Vol. v. 75 at 79; Awojugbade Light Industries Ltd v. P.N. Chiwukwe and Anor (1995) 4 NWLR (pt.390) 370; Musa Sha (Jnr) and Anor v. SA Ray Kwam and Ors (2000) 5 SCANJ 101; (2000) 8 NWLR (pt.670) 685, and said that the trial Court was right to rephrase the issue for the determination of the Suit; that that did not deny the Appellant right of fair hearing, as he (Appellant) was served with the process(address of Claimant which was based on the re-framed issue) and he had a right to reply, thereto, as per Order 30 Rule 16 of the High Court (Civil Procedure) Rules, which says:
"The party who files the first address shall have a right of reply on points of law only. The reply shall be filed within 7 days after service of the other parties address."
Counsel observed that the trial Court had acknowledged the reframing of the issue by the claimant, and that the same had been communicated to the defendant - he referred us to page 162 of the Records.
He added that a party cannot complain of fair hearing, when he has failed to avail himself of the opportunity to be heard; that Appellant had opportunity to file a Reply on points of law to claimant's address, but failed to do so. He relied on Gov. of Zamfara State and Ors v. Gylange and Ors (2012) MRS CJ VOL.IV 83, at 89; Bakare v. Lagos State Civil Service Comm. and Anor. (1992) 8 NWLR (pt.262) 641 at 692; Odogwu v. Odogwu (1992) 2 NWLR (Pt.225) 539 at 556. Counsel added that a party who disregards the rules of Court cannot, after words, complain of breach of right of fair hearing. He relied on Nigerian Navy and Ors v. Labinjo (2012) Vol. 211 LRCN 1; Military Govt. of Lagos State 7 Ors v. Adeyiga (2012) Vol. 205 LRCN 1.
Counsel, on the issue of being biological child of Late Nkodum Uwah Duru, submitted that Respondent's case at the trial Court was that he was the only surviving child (son) of the Late Nkodum Uwah Duru; that he never claimed he was a biological child of late Nkodum Uwah Duru; that being the only surviving child (son) of the deceased, he was entitled to inherit and succeed to the estate of the deceased, according to their native law and custom.
Counsel submitted that, under cross examination, Appellant admitted his mother was married to Iwuji Duru and he was born during the subsistence of that marriage and so was the son of Iwuji Duru; that it was therefore strange for Appellant to deny Iwuji Duru as his father and rather sought to claim Nkodum Uwah Duru as his father. He relied on the case of Daniel Bassey and Anor v. Chief Lasisi Fajeme and Anor. (2001) 6 NSCQR.
Counsel added that the claim by the Appellant, as being the biological son of the late Nkodum Uwah Duru, was irrelevant to the live issue of who was the successor in title to the estates of late Nkodum Uwah Duru, according to native law and custom of Umueze, Obokpo Ubomiri, Mbaitoli L.G.A of Imo State. He asserted the effect of Customary Law over English legal system in the circumstances, and added that the argument as to who, between the two parties, was senior in age, was not relevant or applicable, in the circumstances. He acknowledged that Appellant was the surviving head in the larger Duru kindred, but that he was restricted to inherit through his father, Iwuji Duru, who was the immediate junior brother of Nkodu Uwah Duru; that the issue of being biological or natural was irrelevant to the fundamental issues of customary law, raised by the facts of this case.
Counsel said, when it comes to Customary Law, the English law is not helpful; that Customary Law is not subject to English law of statute of limitation.
On the award made to the Respondent, Counsel noted that the Respondent (as claimant) had asked for ₦1M (1 million naira) as damages.
He argued that damages are awarded at the discretion of the Court; that the trial Court had exercised that discretion judiciously and judicially by giving ₦100,000.00 to claimant as damages for trespass.
He urged us to resolve the issue against Appellant and dismiss the Appeal.
Appellant's Reply brief was, largely, a rehearse of the arguments in the Appellant's brief or attempt to improve upon it. That is not the purport of a Rely brief. See Nwankwo v. Customary Court Ndiawa Arondizuogu and Ors (2009) LPELR-4589 CA; B.M. Ltd v. Woermann line (2009) 13 NWLR (pt.1157) 149; (2009) LPELR-756 (SC).
RESOLUTION OF ISSUES
The facts of this case appear to be an unfortunate play back of the sad effect of blind adherence to primitive tradition or custom, relating to getting a male child, at all cost, to succeed a deceased and inherit ones estate. It is also, in my opinion, the story of greed, where those favoured to inherit the estate of Late Nkodum Uwah Duru, who died intestate, are at war with each other in their individual bid to get the estate, alone and edge out the other(s). They resorted to name calling, lies, blackmail, hatred and litigation, relying on conflicting purported, native law and custom! The Respondent, in particular, despite his claim of being Prophet, sought to upstage and back-stab his senior relation.
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.
The main reliefs of the Respondent, at the Lower Court, were the 1st and 2nd Declaration that he was entitled to the Right of Occupancy over the land Ama Ukwu Nkodum, being the only surviving child of late Nkodum Uwah Duru, according to Native law and custom, and that he was entitled to inherit the property of Nkodum Uwah Duru (late), as the only male child.
The trial Court summarized the evidence adduced and the issue for the determination, which was Of the two (parties), who was the son of late Nkodum Uwah Duru, and consequently the heir and successor in title to the estate of Nkodum Uwah Duru Or As between the Claimant and the defendant who is the biological 1st son of Nkodum Uwah Duru (As reframed by the Claimant).
The trial Court said:
"I must sound it loud and clear, that when a case revolves on custom, the English Law is not relevant in solving any problem. Whereas, in English Law, only the natural or biological father is recognised in the issue of paternity, under customary law, a different view is taken... In Customary Law, in Igbo Land and, particularly in Mbaitoli Local Government, where both parties are from, this issue of children born out of wed lock is looked at, differently, from the English Law. The age long Custom that is prevalent amongst Igbos is that such a child is not abandoned to his faith (sic). He is fully integrated in the family of his mothers father. It is even more so when a man in his life time had no male issue but females. In such case a decision could be taken to allow the female child to stay in the family and procreate in order for the lineage to continue. It is only when some one claims the child or has paid bride price, that a different decision is reached..." See pages 162-163 of the Records.
With due respect to the learned trial Court, the issue for the determination of the Suit, which the parties agreed to at the pre-trial and was, eloquently, adopted by the trial Court, had nothing to do with what tradition or native law and custom says about a child born out of wedlock, or as to discrimination, rejection or denial of the child's right, in the family of the mother's father. The comparism of the Customary Law with the English Law, in that regards, appeared unwarranted and misleading, especially as both the English law and the Customary Law have provisions for adoption, and so it is not "only the natural or biological father that is recognised in issue of paternity", under English Law.
Under the English Legal system, paternity is even presumed, once a child is born within wedlock, not minding whether the mother had "an away match", that is, was conceived by another man (unknown to the husband). In the case of Anozia v. Nnani and Anor. (2015) 8 NWLR (pt.1461) 241 at 256, this was stated that:
"The law has always acknowledged the right of a woman to say who the father of her child is, and, of course, where a child is born within wedlock, the presumption is conclusive, that the child is the seed or product of the marriage...
"At common law, there is presumption of paternity of the child born during the subsistence of marriage."
Added to the above, is the situation of application of adoption law by which a parent adopts and integrates a child adopted into his/her family, and the child is entitled to all the rights, privileges and obligations in the estate of the Adaptor, including right to inherit or share in inheritance of the adopting parent. Thus, it is not only Traditional/Customary Law of the Igbos of Mbaitoli LGA that acknowledges this practice of accepting a child of an unmarried daughter as one of the members of the family of the father of the mother. This practice appears to be accepted all over this Country and it accords with our national Constitution which abhors discrimination of a child or citizen of Nigeria because of the circumstance of his birth. In a recent case of this Court in Igbozuruike v. Onuador (2015) LPELR-25530 (CA) it was held:
"The 1999 Constitution of the Federal Republic of Nigeria must have had the likes of the Plaintiff/Appellant in contemplation, when it enacted in Section 42 (1) (a) and (2) as follows:
(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex religion or political opinion shall not, by reason only that he is such a person -
(a) Be subjected either expressly by or in the practical application of any law... to disabilities or restriction to which citizens of Nigeria of other communities ethnic groups, places of origin, circumstances of birth, sex, religious or political opinions are not made subject, or
(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth."
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."
The above case dealt with situation where Respondent was born by a daughter, in her maiden home, after the breakdown of her marriage and her brother (whose only child had abandoned home and stayed in America), had adopted the Respondent as his son and allowed him to live in the family house and enjoy the Mgbala (his grandmother's home stead) which was given to his mother, intervivos. When the Appellant returned from America, he sought to take the Mgbala from the Respondent, to add to other estate of his (Appellant's) father, which he appropriated alone; his reason was that by their custom, Respondent had no share in the estate of his (Appellant's) father, having been born out of wedlock.
Of course, such custom was adjudged offensive by the standard of Section 18 (3) of the Evidence Act and Section 42(1), (2) of the 1999 Constitution. See also the case of Peter Chinweze and Anor v. Veronica Mazi (Mrs) and Anor. (1989) 1 NWLR (pt.97) 254; (1989) LPELR- where the Supreme Court held:
"A man's family normally consist of the man, his wife or wives and the children born to him by such wife or wives. I have on purpose used the expression "wife" or "wives", because we have here in the Marriage Act or Ordinance. This is a monogamous system of marriage.
(b) Marriage by Customary Law. This is Polygamous system. In this case, the pleadings are completely silent on the type of marriage Peter contracted with Elizabeth Chinweze. But whatever the system of marriage the undisputed fact is that the appellants were born after the death of Peter Chinweze. They were therefore not his natural sons, for it is contrary to the course of nature for as a dead man to produce children. They were not his adopted or "acknowledged" children and thus legitimized under the rule in the decisions like Alake v. Pratt 15 WACA 20; Bamgbose v. Daniel 14 WACA 116."
The above, shows that where the child is adopted or "acknowledged" by the parent, the same is entitled to share in the estate. See also the of Ukeje v. Ukeje (2014) LPELR -where the Supreme Court nullified the Igbo Customary Law, which discriminates against and denies female children of rights to the estate of their parents.
This case, at hand, shares some similarities with the case of Igbozuruike v. Onuador (supra), being founded on tradition and custom too, and relating to another situation of assertion of exclusive right of inheritance, but this time, by an adopted son - born by one of the daughters of the deceased. There is evidence that the deceased (Nkodum Uwah Duru) had six (6) female children, and one of them, while unmarried, gave birth to Respondent, who was adopted as a son by the mother's father. The mother later went out to marry. There is also evidence that Nkodum Uwah Duru had male children (before the parties in this case) but they just did not survive.
The person contesting the intestate estate with the Respondent is Respondent's maternal uncle, who is acknowledged as the eldest surviving son of Nkodum and the head of the Nkodum Duru family, and whose mother (Mrs. Nduwuchi Iwuji Duru), was married by Nkodum Uwah Duru, at the demise of Iwuji Duru. The Respondent (as Claimant) gave evidence (his statement on oath) to the effect that;
"(5) The late Nkodum Uwah had no surviving male child of his own.
(6) That in consequence of which he (Nkodum Uwah) asked his last daughter Obiageri (my mother) to bear him a son that would inherit him on his death.
(7) That as a result of the agreement between my father and daughter, Obiageri (my mother) remained unmarried and gave birth to me for my father.
(8) That I was born during the life time of my late grandfather (Nkodum) and that he accepted me as his only son and bequeathed all he had to me.
(9) That I looked upon the late (Nkodum called and related to him as my father until he died in 1978. My fathers land was sold to bury him.
(10) That the Defendants (sic) is the son of Iwuji Duru, through his wife, Nduwuchi.
(11) That Iwuji (Defendants father) died in 1937 before I was born and that was in 1955.
(12) That the Defendant was born after the death of his father (Iwuji).
(13) That since Nduwuchi (Defendants mother) did not re-marry after the death of her husband (Iwuji) the Defendant remains the bonafide son of Iwuji.
(14) That the Defendant can only inherit the estate of late Iwuji and can partake only in the shares of Iwuji, according to Ubomiri native law and custom.
(15) That when Nkodum Duru died, I inherited his estates including his house.
(16) That I lived in his said house with his 2nd wife.
(18) That I built my house and now wanted to destroy my father's house and use the space to expand, the defendant refused.
(19) That thereafter he laid claim to ownership of the land.
(20) That I reported to the village for customary arbitration which was in my favour. I rely on the said document in this trial.
(21) That the Defendant still insists on his ownership of my late fathers estate, hence this suit."
See pages 37-39 where he adopted the above depositions.
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 Appellant's statement on oath stated:
"3) That I am the 1st surviving male child of Nkodum Uwah now late, before my younger brother Clement Duru was born.
4) That before my father Nkodum Uwah married my mother, he married other wives, including the mother of PW3 Susana Obiageri Durunna (Nne Uwah) and all the male children his wives begot for him died.
5) That initially my mother Nduwuchi was married to Iwuji Duru, an uncle to Nkodum Uwah.
6) That when Iwuji Duru died, Nduwuchi was still a very young woman and Nkodum Uwah decided to remary her and she agreed.
7) That Nkodum Uwah then performed all the customary rites on her which included refund of her bride price to the relations of Iwuji Duru and then started to live with her as husband and wife.
8) That it was during the marriage between Nkodum Uwah and Nduwuchi that Nduwuchi begat myself and Clement Duru for Nkodum Uwah and we survived.
9) That it was several years, after I and my brother were born, that Susana Obiageri, our half sister, then a young girl at home, unfortunately, became pregnant through an incestuous relationship with our village man with whom we don"t intermarry, called Christopher Oparaugo from Umuekechi Umueze and begat the Claimant out of wedlock and in her father"s compound
(11) That Nkodum Uwah my father disowned Susana Obiageri and her pregnancy and took her to Christopher Oparaugo and it was Christopher's elder brother, Lawrence Oparaugo, who gave her F10 (Ten Pound) to cater for herself and her pregnancy.
(12) That later when Susana gave birth to the Claimant, my father still never acknowledged nor accepted the Claimant through out his life time.
(13) The it was one of our kinsmen, called Athanasius Ulu now late, who gave the Claimant the name he now bears and not my father either as alleged or at all.
(14) That I have read the written deposition of Susana Obiageri Durunna PW3.
(15) That Paragraphs 3, 4, 5, 7, 8 and 9 are false and are hereby denied
(25) That I was the person who, out of magnanimity, showed the claimant where he built his house after consultation with my brothers.
(26) That today I am the head of my family ie. the Nkodum Uwah family and the Ofo holder."
(See pages 86-88 of the Records and page 130, where the Appellant (as DW1) adopted his said statement on oath).
I had earlier reproduced the agreed narrow issue for the determination of the suit at the Lower Court, which was:
Between the Claimant and the Defendant, who is bonafide biological 1st son of Nkodum Uwah
The Respondent, however, reframed that in his final address, to read:
Whether under the Custom and tradition of Umueze Obokpo Ubomiri, between the Claimant and the Defendant, who is the son of late Nkodum Uwah Duru and consequently the heir and successor in title to the estate of Nkodum Uwah Duru
The trial Court's findings admitted that, at the pre-trial. The parties were in agreement as to the narrow issue to focus the trial on which:
As between the claimant and the defendant, who is the biological 1st Son of Nkodum Uwah Duru.
See page 162 of the Records
The above shows that, ever before the hearing of the case, the parties were in agreement and had resolved that the issue of each of them being admitted and accepted as children or sons of the late Nkodum Uwah Duru, was not disputed, but what was in dispute, was between them, who was the biological first son of the father, Nkodum Uwah Duru.
The hearing was set out to unravel who was the biological 1st son of Nkodum Uwah Duru, and the evidence and proceeding directed and tailored to attain that objective. The Claimants Counsel therefore could not be permitted to shift the focus and set another case for the parties at the address stage, as the new issue formulated by the Claimant (after being served with the Defendant's address, based on the agreed issue for determination) amounted to a complete new case for which the evidence were not directed. It was, in my opinion, not a mere reframing or rephrasing of the agreed issue or focus of the trial, as the Claimant was now changing his position and stretching the evidence to prove a different case from the one heard. To ask which of the parties under the custom of Umueze Obokpo Ubomiri was the son of late Nkodum Uwah Duru and consequently entitled to the estate of the Deceased is, completely, different from, between the two of them, who was the biological first son of the deceased.
By the rules of Court, once the parties have agreed at the pre-trial, as to the issue(s) for determination in a suit, set out to pursue same, and called evidence, therefor, they are bound by it and no party is allowed to jump ship and set out for another case, at the address stage. See Order 25 Rules 3 (a) and 6 of the High Court (Civil Procedure) Rules of Imo State:
"3) (a) At the pre-trial conference the judge shall consider and take appropriate action with respect to such of the following (or aspect to them) as may be necessary or desirable
(a) formulation and settlement of issue:
(5) After pre-trial conference the judge issue and order giving direction for further proceedings in the matter. The order shall guide the subsequent course of the proceedings, unless modified by the trial judge
6) If a party or his legal practitioner fails to attend the pre-trial conference or obey a scheduling or pre-trial order, or is subsequently unprepared to participate in the conference or fails to participate in good faith, the judge shall:
a) in the case of the Claimant dismiss the claim or
b) in the case of a defendant, enter final judgment against him."
See Page 112 of the Records of Appeal which carries the pre-trial conference Report, thus:
Both parties agree on only one issue i.e. Between the Claimant and the Defendant who is the bonafide biological 1st Son of AKODUM (sic) UWA.
As earlier stated in this judgment, the claimant and even the Court, cannot be allowed to change the settled issue, at the point of final address of Counsel or at the judgment by the Court. See the case of Anyorah v. Anyorah (2001) 7 NWLR (pt.711) 158.
It is not the place of the Court to nominate and try a case different from or outside the case on which the parties had joined issues. Okere v. Amadi (2005)14 NWLR (pt.945) 545 at 559; Haruna v. University of Agriculture Makurdi (2005)3 NWLR (pt. 912) 233.
Going by the claim before the Court, as per the reliefs 1 and 2, and the evidence led at the Lower Court, as well as the issue for determination, agreed upon by the parties, and the trial Court, it is difficult for me to appreciate the trial Court's stance, with regards to the party on whom the burden of proof resided, whether in respect of the agreed issue for the determination of the suit, or even the new one, reframed by the Claimant.
The general principle of law is that, it is the party that asserts or alleges that must prove his assertion or allegation. And by law, the burden is always on the plaintiff, who files a suit, to lead credible evidence to establish his claim, and in doing so, he must rely on the strength of his own case, not on the weakness of the case of the defendant (if any). See Sections 131, 132 and 133 of the Evidence Act. 2011 and the case of Hadyer Trading Manufacturing Ltd and Anor v. Tropical Commercial Bank (2013) LPELR 20294 (CA); Okoye and Ors v. Nwankwu (2014) LPELR 23172 (SC); Anozia v. Nnani (2015) 8 NWLR (Pt.1461) 241 at 257.
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!
With such facts and evidence, above, it beats my imagination to understand the learned trial judge, when he said on page 164 of the Records:
"The case put forward by Defendant was, to say the least not convincing. The defendant was at pains answering questions put to him by Claimant's Counsel. In one breath he will agree that Mrs Nduwuchi Iwuji was his mother's name but they added that Iwuji was not his father. In another prevarication he disagreed that his name Christopher Iwuji Duru implies he is the son of Iwuji, but said it was the name he was sued with. No where did he protest either in his pleading or deposition over this issue."
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.
The learned trial Court, in my opinion, also erred, greatly, when he shifted the burden of proof in the case to the Defendant (Appellant). He said:
"On the contrary, the defence did not find it fit to call even a witness to corroborate his testimony. I am not convinced that he had no one in Obokpo Umueze Ubomiri to come and lend credence to his case. In all, as stated above, the case of the defendant leaves much to be desired. He only came to Court to try his luck. I therefore enter judgment in favour of the Claimant."
See page 164-165 of the Records.
Did the Appellant have any case to prove at the trial Court The answer is capital "NO!"
The case was brought by the Respondent and the burden of proof resided with him, throughout. It was the Respondent who needed to produce credible evidence to show that he was the only surviving male child of the late Nkodum Uwah Duru, entitled to exclusive claim of inheritance over the estate of his late father, Nkodum Uwah Duru.
Having admitted that the Appellant was the head of the family of Nkodum Uwah Duru, and his (Respondent's) own senior in age, the duty became more on him to exclude the Appellant in the estate. And, given the fact that, he admitted being a grand son of the deceased, and his mother was the last daughter of Nkodum Uwah Duru, his claim and attempt to exclude the other children of Nkodum Uwah Duru (including the female children) became laughable. See the case of Ukeje v. Ukeje (supra) and Chinweze v. Mazi (supra).
Even the version of the alleged report of the Umueze Obokpo Kindred Meeting, tendered by him (Respondent) on page 101 of the Records of Appeal, stated in Paragraph(c) as follows:
"That Prophet Nnadi Nkudom Duru shall have an equal share of right among other members of the family regardless of the circumstances that surrounds his birth, hence, late Nkudom Duru assume prophet Nnadi, duty and responsibility also rights of inheritance while alive."
It should be noted that even the names of the Respondent and his forester father, Nkodum Uwah Duru, were not properly spelt in the said controversial document, tendered by the Respondent, and the Village, on page 107 of the Records, had written to dismiss it as forgery.
I had earlier referred to the case of Anozia v. Nnani (2015) 8 NWLR (pt 1461) 241, to the effect that when a child is born within wedlock, the presumption is conclusive that the child is the seed or product of the marriage. Since there was no evidence to rebut the assertion that Nkodum Uwah Duru married Nduwuchi (mother of Appellant) and she gave birth to Appellant and other children, after the marriage and after the death of her first husband, Iwuji, the presumption that Appellant and his brother Clement, and other children of Nkodum Uwah Duru, were products of that marriage, remains strong and binding.
I had earlier stated that a Plaintiff has the burden of establishing his claim, with credible evidence, before he could succeed, and is not permitted to rely on the weakness of the defence for that purpose (if any). In the case of Yusuf v. Akande and Ors (2011) LPELR-5114 CA, this Court said:
"A Plaintiff who claims a declaration of title to land has a duty to prove his title by credible evidence, not withstanding any weakness in the defence, unless the case of the defendant actually supports the Plaintiffs claim. See also Akuduro v. Alaya (2007) 15 NWLR (pt.1057) 312; Odunze v. Nwosu (2007) 13 NWLR (pt.1050) 1; Ogunjemila v. Ajibade (2010) 11 NWLR (pt.12050 559 at 581; Balogun v. Yusuf (2010) 9 NWLR (pt.1200) 515."
In Obiazikwor v. Obiazikwor (2007) 27 WRN 106, it was held:
"Contradictions in the evidence of a defendant, who by the pleadings has not the initial burden to prove his case, can only be material in the determination of the case, if the plaintiff has, in the first place, proved his case. Where the plaintiff has not proved his case, contradictions in the evidence of the defendant will not avail or held the plaintiff in sustaining his claim. See also Iroaganachi v. Madubuko (2016) LPELR 400 48 CA (at 1150)
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.
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.
RAPHAEL CHIKWE AGBO, JCA: I had the privilege of reading in advance the lead judgment written by my learned brother Ita G. Mbaba, JCA and I agree completed with both the reasoning and conclusions. I have nothing useful to add.
IGNATIUS IGWE AGUBE, JCA: I have read in draft the lead judgment just delivered by my learned brother, I. G. Mbaba, JCA, I agree completely with him that the Appeal is meritorious and should be allowed. I also allowed the Appeal and abide by the consequential orders made in the lead judgment.