Mojekwu V. Mojekwu (1997) LLJR-CA

LAWGLOBAL HUB Lead Judgment Report – COURT OF APPEAL

NIKI TOBI, J.C.A. (Delivering the Lead Judgment)

This appeal deals with property situate at and known as No. 61 Venn Road South, Onitsha. The appellant as plaintiff in the lower Court, commenced an action against the respondent, as defendant.

In the action, the plaintiff sought for a declaration that he is entitled to the property “in accordance with the Nnewi native law and custom”. He asked for other reliefs in the alternative twice.

In the first set of alternative reliefs, plaintiff asked for
(a) A declaration that he, being the recognised kola tenant of the Mgbelekeke family of Onitsha is entitled to the statutory right of occupancy of the property.

(b) A declaration that the defendant is only entitled to be accommodated at the property in accordance with Mgbelekeke family of Onitsha kola tenancy land tenure system and the kola tenancy law.

In the second set of alternative reliefs, the plaintiff asked for
(a) A declaration that the defendant is only entitled to be accommodated at the property, subject to good behaviour and maintained from the property by the plaintiff during her life time in accordance with Nnewi native law and custom.

(b) A declaration that the defendant is only to be accommodated at the property, subject to good behaviour and maintained from the property by the plaintiff.

(c) Perpetual injunction restraining the defendant, her servants, agents and privies from putting in tenants on the property, leasing, selling or alienating the property or any part thereof without the plaintiffs permission

(d) An account of rents collected by the defendant on the property from the month of April 1982 until the delivery of judgment in the suit.

The case of the plaintiff as claimed by him could be summarised: His father’s name was Charles Nwofor Mojekwu. He died in 1963. Nwofor had an only brother, Okechukwu Mojekwu, who predeceased him. Okechukwu died in 1944. The property in dispute was owned by Okechukwu, who married two wives: Janet and Caroline, the defendant. Janet had two daughters while Caroline had a son. His name was Patrick Adina. He died during the Nigerian Civil War. Patrick was neither married nor had a surviving issue. Okechukwu, the plaintiff’s uncle bought the property in dispute from the Mgbelekeke family of Onitsha under kola tenancy land tenure system.

The plaintiff inherited the property under the native law and custom of Nnewi. In addition, he paid the necessary “Kola”, being the consideration to the Mgbelekeke family who recognised him as a kola tenant; the plaintiff being the eldest surviving son of his father, Charles and the eldest male in the Mojekwu family. The defendant and other people accompanied the plaintiff to the Mgbelekeke family for recognition and the two daughters of his deceased uncle-Okechukwu, signed the docket of consent from the Mgbelekeke family as witnesses.

After the Nigerian Civil War, the plaintiff went over to the Northern part of Nigeria, apparently to stay there. The first wife of Okechukwu – Janet – stayed at Nnewi. The plaintiff allowed Caroline – the defendant to come down from Nnewi to live in the property in dispute and collect rents from all the rooms but one, and to feed and take care of herself. That was in or about January, 1970. One of the daughters of Janet lived in the remaining room. When she left, Janet put in a rent paying tenant therein.

The plaintiff exercised acts of ownership on the property and also performed the functions of a head of family. On 1st April, 1982, the defendant commenced moulding cement blocks on the property in dispute without the consent of the plaintiff, in preparation for construction of a building. The plaintiff stopped the defendant. He made public announcements and newspaper publications to prospective lessees. He thereafter filed the action.

The case of the defendant as claimed by them could also be summarised: The plaintiff is not the head of Mojekwu family and did not inherit the property in dispute under Nnewi custom or any other custom. When the husband of the defendant died, the plaintiff’s uncle sought to take over the property even when Adina Mojekwu was still living. Defendant took the plaintiff to Court.