Onyema Nwabuekwe V. Nnaemeka Muo (2016) LLJR-CA

LawGlobal-Hub Lead Judgment Report

TOM SHAIBU YAKUBU, J.C.A.

The Anambra State High Court of Justice, holden at Awka, on the 19th December, 2006 in its judgment, per F. C. Nwizu, J., granted a declaration in favour of the respondent to the effect that he is the person solely entitled to the statutory right of occupancy over the landed property of his deceased father – Muo Emezinam Nwokeke, in accordance with the native law and custom of Umuokpu village, Awka on inheritance.

The claim of the respondent who was the plaintiff at the Court below, as represented in the Amended statement of claim, was for:
(a) A declaration of Court that the plaintiffs are the persons solely entitled to the statutory right of occupancy over all the landed property of their late father Muo Emezinam Nwokeke in accordance with the Native law and Custom of Awka on inheritance.
(b) An order of Court for the partitioning or dividing of the yet un-partitioned Late Ozo Nwokeke Elenwe’s lands known as and called “Ana Nwokeke” between the plaintiff and the defendants. The said lands to wit: Ana Ezi Oyibo, Ana iru be Mama, Odo Ugwu Mgboko, Odo Ngwo, Odo Ngwo Nwanja situate at

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Umuokpu Village Awka within the Awka Urban and are shown in the plaintiff’s survey plans filed with this Amended statement of claim excepting the Mgboko and Odo Ngwo lands which are very well known to the parties.
(c) N500,000.00 (Five hundred thousand naira) being damages for trespass against the defendants jointly and or severally over all the said lands in plaintiffs possession and ownership.
(d) A perpetual injunction restraining the defendants, their servants, agents and privies from trespassing upon or interfering with the plaintiffs possessory rights and ownership over all late Muo Nwokeke’s already partitioned pieces or parcels of lands situate at Umuokpu village Awka within jurisdiction.

The appellant denied the claim and filed his defence thereto. The resume of the respondent’s case was that:
i. Nrachi custom which empowers a man who has no male child to retain one of his daughters in the man’s house to bear male child for the man and the male child born to inherit the man’s property operates in Umuokpu Awka.
ii. The Respondent was a product of the Nrachi custom and did inherit the property of late Muo Emezinam Nwokeke who

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did not have a male child but retained his daughter (Angelina Nwuyanwoke Muo) to beget the Respondent for Muo Emezinam.
iii. The Respondent and the Appellant claimed their title from Ozo Nwokeke Elenwa. According to the Respondent Ozo Nwokeke Elenwe had as his first son late Muo Emezinam Nwokeke. Late Muo Emezinam Nwokeke had no male child; he had the mother of the Respondent and other daughters.
iv. Muo Emezinam Nwokeke and Nwaobuekwe Nwokeke (the father of Nwogbo Nwaobuekwe) now late were brothers of the full blood and the above duo had half brothers called Ndife Nwokeke and Mgbendumma Nwokeke.
v. The property of Ozo Nwokeke Elenwe was partitioned between Muo Emezinam Nwokeke and Nwaobuekwe Nwokeke on one part and Ndife Nwokeke and Mgbendumma Nwokeke on the other part.
vi. The landed property of Ozo Nwokeke Elenwe were not shared between Nwogbo Nwaobueke and his children on one part and the Respondent who inherited the share of Muo Emezinam Nwaokeke.
vii. The Respondent further alleged that there has been sharing of part of the estate of Ozo Nwokeke Elenwe between Nwogbo Nwaobuekwe and himself. And that after the sharing, ‘Obu’ was

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left for him. Further that 5 (five) properties of the direct descendants of Muo Emezinam Nwokeke were not shared between the Respondent and the Appellant.
viii. The Respondent prayed the Court to order the partition of the remaining 5 (five) plots and to order for perpetual injunction restraining the Appellant from trespassing on the six plots of land that the plaintiff got when the land was shared in 1993.

?On the other hand, the Defendant’s case was that:
i. The Respondent was patri-linearly not a descendant of Ozo Nwokeke Elenwe or any of the sons of Ozo Nwokeke or their male descendants.
ii. The Respondent was born by one of the daughters of Muo Emezinam Nwokeke (the 2nd son of Ozo Nwokeke Elenwe) having not been begotten by Muo Emezinam Nwokeke Elenwe. The latter had no male child.
iii. The Respondent is only “Nwadiala” in Ozo Nwokeke Elenwe’s family and his mother never went through nrachi ritual as pleaded or alleged.
iv. The custom of Nrachi copiously relied on by the Respondent to claim equal right to inherit landed property and to exercise the right of the eldest son did not apply in Umuokpu Awka.
v. There was no

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time land was partitioned between the Respondent and the Appellant’s father; because of the manner the Respondent was born he had no locus to share any land with the Appellant and no land was shared between the parties.
vi. The Respondent did not share any land with the Appellant’s father. The Appellant’s father only shared land with Mgbeodumma and never with the Respondent.
vii. The Respondent approached Nwogbo Nwaobuekwe and begged him for land to build and Nwogbo Nwaobuekwe gave the Respondent about 4 (four) plots of land to build.

In the course of the trial, the respondent’s mother – Mrs. Angelina Nwuyanwike, who was a co-plaintiff died and her name was struck out as a party. Similarly, the 1st and 2nd defendants Nwogbo Nwaobuekwe and Osita Nwaobuekwe respectively, died in the course of the proceedings and their names were struck out as parties in the action. The respondent gave evidence for himself and called another witness as PW2 – Ozomma Chukwu Ukor. The appellant also testified for himself as DW3 and called four other witnesses ? DW1, DW2, DW4 and DW5. Both sides tendered into evidence, some documentary exhibits. Learned counsel

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to the parties, filed and exchanged written addresses. In his judgment, the learned trial Judge, found for the respondent.

The appellant, not unnaturally, was not satisfied with the judgment of the trial Judge, hence this appeal was lodged against it and predicated on nine grounds of appeal. In order to prosecute the appeal, the amended appellant’s brief of argument, settled by Arthur Obi Okafor, SAN, FCI Arb, dated 28th September, 2012 and filed on 2nd October, 2012 was deemed as properly filed and served, by this Court on 19th June, 2013. Four issues were formulated therein for the determination of this appeal.
They are, to wit:
i. Did the Respondent (who was the plaintiff at the court below) establish that his mother Angelina Nwuyanwoke went through the process of Nrachi custom as alleged? (Ground 1).
ii. Was the Court below right in the conclusion it reached that there was partition and/or sharing of various portions of land of Ozo Nwokeke Elenwe between Nwogbo Nwaobuekwe (the original first defendant) and the plaintiff/Respondent (Ground 4)
iii. Was the Court below right in the conclusion it reached that it was Dr. Onejeme that

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detailed PW2 to come and lead evidence in respect of the alleged ancient Nrachi Custom (Ground B).
iv. Was the Court below right in the findings it made accepting as proved the existence and operation of the alleged Nrachi custom which the Respondent relied on to trace his paternity and affiliation to Ozo Nwokeke Elenwe the original owner of the land in dispute and his entitlement to Ozo Nwokeke Elenwe’s properties including the ‘Obu’. (Grounds 2, 3, 5, 6, 7 and 9).

The respondent’s amended brief of argument, settled by Chief O. B. Onyali, SAN, dated 4th May , 2OL5 was filed on 12th May, 2015 and deemed as properly filed and served, by this Court on 27th January , 2016. In it, four issues, were also nominated for the determination of this appeal, to wit:
1. Whether the trial court was right when it held that the respondent established the facts that there is Nrachi custom in the whole of Awka inclusive of Umuokpu village of the parties and that his mother was installed in the family by way of “Nrachi” custom.
2. Whether the trial Court was right in its finding that the respondent and the father of the appellant by name Nwogbo Nwaobuekwe

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shared some of the land of Ozo Nwokeke Elenwe.
3. Whether the trial Court was right when it held that the respondent had been recognized and acknowledged as someone who has stepped into the shoes of Muo Emezinam Nwokeke and entitled to Ozo Nwokeke Elenwe’s lands including the “Obu”.
4. Whether the court below was right when it found as a fact that it was Dr. Onejeme that detailed P.W.2 to come and lead evidence in respect of the ancient “Nrachi” custom.

The amended appellant’s Reply brief of argument, dated 26th February, 2015 and filed on 27th February, 2015 was deemed by this Court as properly filed and served, on 13th April, 2016, when the appeal was taken.

?Having perused the pleadings of the parties; the parole and documentary evidence led at the trial; the judgment of the trial judge, the grounds of appeal and the issues formulated for the determination of the appeal by each senior counsel herein, I am of the opinion that the issues so formulated by them are to all interests and purposes the same. I adopt the issues nominated by the learned counsel to the appellant’ in my consideration and determination of this appeal. I propose to

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take all the issues together.

?Appellant’s Arguments:
It is the learned senior counsel to the appellant’s contention that the Nrachi custom of Umuokpu, Awka upon which the respondent’s claim was anchored was not proved, to the effect that because Muo Emezinam Nwokeke had no male child, he had to initiate and install his daughter ? Angelina Nwuyanwoke, in his compound, to raise a male child for him and that the product of that arrangement is the respondent. He submitted that the pieces of evidence proffered by the respondent as PW1 with that of PW2 did not prove the alleged Nrachi custom because according to him, neither the PW1 nor the PW2 personally witnessed the Nrachi initiation ritual of Angelina Nwuyanwoke. He contended that all customary transactions in order to be valid, must be conducted in the presence of witnesses. He gave examples of such customary transactions, to include customary pledge, customary marriage, gifts inter vivos, etc. That is, in order to prove such transactions, there must be credible evidence of witnesses who Were present at the customary transactions. He gave the instance of proof of customary pledge to the effect

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that it must be in the presence of witnesses. He referred to Akuchie v. Nwamadi (1992) 8 NWLR (pt.258) 214 at 226. And with respect to the gift of land under customary law, he referred to Nigerian Land Law, 4th Ed. Sweet & Maxwell 1971, pages 149 – 150, by T. O. Elias; Nigerian Land Law, Nwamife Publishers Ltd (1972) at pages 367 – 368, by Prof. B. O. Nwabueze – all to the effect that transfer or gift of land to another person, under customary law which requires no writing, ought to be in the presence of witnesses.

He insisted that since neither the PW1 nor PW2 were present at the alleged Nrachi initiation of the respondent (PW1’s) mother, their pieces of evidence were hearsay and inadmissible. He placed reliance on Okhuarobo v. Aigbe (2002) 9 NWLR (Pt.771) 29 at 70; Ukpo v. Imoke (2009) 1 NWLR (Pt.1121) 90 at 147.

?With respect to the issue of partitioning and/or sharing of various portions of land of Ozo Nwokeke Elenwe between Nwogbo Nwaobuekwe and the respondent, learned appellant’s counsel contended that the respondent did not prove or establish that he had a relationship with the appellant that would have warranted the respondent to partake in

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the properties of Ozo Nwokeke Elenwe. He submitted that the respondent and the appellant’s father were not co-owners or heirs-in-common to any landed property and that there was no partition of land between them in 1993. He referred to Exhibit D – to the effect that there was no partitioning of any land in 1993. He insisted that the sole evidence by the PW1 with respect to the partitioning in question, ought to be corroborated and that the said lone evidence by PW1 is not credible. He relied on Oba Lawal Fabiyi v. Chief Solomon Adeniyi & Ors (2000) 6 NWLR (pt. 662) 532 at 544; Ezeanya v. Okeke (1995) 4 NWLR (Pt.388) 142 at 167. He insisted that if the learned trial judge had properly evaluated the pieces of evidence proffered by the respondent and the appellant vis-?-vis Exhibit D, he would have come to the conclusion that the respondent did not prove partition which he had set up. He placed reliance on Mogaji v. Odofin (1978) 4 SC. 91 at 93; Dennis Ivienagbor v. Henry Osato Bazuaye (1999) 6 NWLR (Pt.620) 552.

Learned appellant’s counsel in arguing on the issue relating to the subpoena issued to Dr. Onejeme who allegedly sent the former to come

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and give evidence in Court, ought to have been produced by PW2 and for failing to do so, Section 149 (d) of the Evidence Act, Cap 112 of the Laws of the Federation 1990 should be invoked against the PW2 for withholding evidence, which if produced, would have gone against his evidence. He also urged that Section 149 (d) of the Evidence Act be invoked against the respondent for failing to tender in evidence, the written decision by Ozo Awka titled men on Nrachi custom.

?Respondent’s Arguments:
Learned respondent’s senior counsel conceded that native law and custom or customary law is a question of facts to be proved by the person/party who asserts of its existence, unless such custom has acquired notoriety because of its frequent application by the courts, such that judicial notice is taken by the courts, of its existence. He referred to Olowu v. Olowu (1985) 3 NWLR (Pt.13) 372; Temile v. Awani (2001) 12 NWLR (Pt.728) 726; Otaru v. Otaru (1986) 3 NWLR (Pt.26) 14 at 15.
He submitted that the pieces of evidence proffered by the PW1 at pages 184 – 186; 192 – 193 of the record of appeal were in tandem with his averments in his pleadings with respect

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to Nrachi custom in Umuokpu Awka. He further submitted that the evidence of PW2 of the Ozo title men with respect to the Nrachi custom in Awka, supported the evidence of the PW1.
He therefore submitted that the learned trial judge was justified in believing and accepting the evidence of the respondent with respect to Nrachi custom in preference to the pieces of evidence proffered by the appellant and his witnesses. He referred to the pieces of evidence by the appellant as DW1 at page 217 of the record of appeal which contradicts the pieces of evidence by DW3 and DW5 with respect to the existence of Nrachi custom in Umuokpu village, Awka. He submitted that where the trial Court properly evaluated the pieces of evidence placed before her, the appellate would be slow to re-evaluate those pieces of evidence and set aside the findings made by the trial Court. He placed reliance on Nwaezema v. Nwaiyeke (1990) 3 NWLR (Pt.137) 230 at 239 – 240; Igbuya v. Eregare (1990) 3 NWLR (Pt.425) 425 at 433.

?Furthermore, it is the contention of the respondent’s learned senior counsel to the effect that since PW2 was not cross examined by the appellant’s counsel with

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respect to his evidence on the existence of Nrachi custom in Umuokpu village, Awka, those pieces of evidence are true and cogent. He relied on Gaji v. Paye (2003) 8 NWLR (pt. 823) 583 at 591.
And with respect to the meaning of the name Nwuyanwoke, it is his submission, that the evidence on it as given by the appellant as DW3 at pages 219 – 220 of the record of appeal, accords with the evidence of PW1 and PW2, hence what is admitted needed no further proof. He placed reliance on Din v. African Newspapers Ltd (1990) 3 NWLR (pt. 139) 39 at 405.

With respect to the issue of partitioning/sharing of the lands of Ozo Nwokeke Elenwe between the respondent and the appellant’s father – Nwogbo Nwaobuekwe, learned respondent’s senior counsel referred to paragraphs 14 and 15 of the amended statement of claim and the survey plans pleaded by the respondent which were in accord with the PW1 (respondent’s) evidence at pages 125, 132 – 134 of the record of appeal. He also referred to paragraph 20 (ii) of the appellant’s statement of defence and the cross-examination of the appellant as DW3 at pages 218 – 219 of the record of appeal and submitted that in customary law,

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oral partition is valid. He relied on Olorunfemi v. Asho (2000) 2 NWLR (Pt.643) 143 at 156 – 157. He insisted that with the survey plan exhibited by the respondent showing the family property as partitioned vide Exhibits B – B9 at page 206 of the record of appeal, which were not contradicted by a counter – survey plan at the instance of the appellant, the latter cannot be heard to contend that there was no evidence of partitioning. He referred to Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt.5) 41 at 60 and that the appellant in challenging the respondent’s survey plan, ought to have filed a counter – survey plan, which he did not do. He relied on Obi v. Ozor (1991) 9 NWLR (Pt.213) 94 at 105.

With respect to Exhibit D, he submitted that it was not in respect of the partitioning in question which had taken place in 1993, that is, Exhibit D came into existence after the partitioning of 1993 between the respondent and the appellant’s father – Nwogbo Nwaobuekwe. And with respect to the subpoena issued to Ozo Dr. S. E. Onejeme, learned respondent’s counsel submitted that since the subpoena was not issued to PW2, he was not obliged to produce it and that in any

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event, the appellant was at liberty to have called any other OZO title man to have given evidence for him, in contradiction of the evidence proffered by PW2 regarding the existence of Nrachi custom in Umuokpu village, in Awka. He insisted that the evidence by PW2 with respect to the Nrachi custom, whether or not he hailed from Umuokpu village was immaterial, since the evidence he proffered as a member of the OZO Awka traditional institution, was to the effect that Nrachi custom applied in the entire Awka town.
Resolution:
Indisputably, it is a firmly established principle that customary law is a question of facts to be proved by evidence, hence the party who alleges that it exists in any particular community must adduce sufficient and cogent evidence to the satisfaction of the Court, in order to prove it. And where a custom by frequent litigation on it in the Courts, become notorious, the Courts will no longer require proof of it, but take judicial notice of it. Thus, the law is well settled beyond peradventure, that proof of the customary law of a particular group of people in a particular community, is on the person who alleges that such a custom

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exists. Section 16(1) and (2) of the Evidence Act 2011, is unequivocal to the effect that:
16. “A custom may be adopted as part of the law governing a particular set of circumstances if it can be judicially noticed or can be proved to exist by evidence.
2. The burden of proving a custom shall lie upon the person alleging its existence.”
Therefore, it is very well settled that customary law is a question of fact to be proved by evidence at the instance of the person who alleges the existence of a particular custom. He must adduce sufficient evidence to satisfy the Court of the existence of such a custom. Iyang v. Ita (1929) 9 NLR 84; Agbai v. Okogbue (1991) LPELR – 225 (SC); (1991) 9 ? 10 SCNJ 49; (1991) 7 NWLR (Pt.204) 391; Lipede v. Sonekan (1995) 1 NWLR (Pt.374) 668; (1995) LPELR 1786 (SC); (1995) 1 SCNJ 184; Ojiogu v. Ojiogu (2010) 9 NWLR (Pt.1198) 1; (2010) LPELR – 2377 (SC).
The law is also well established that upon frequent filing of actions in the Courts with respect to a particular custom and the Courts have clearly pronounced on it, there would be no need of proving the custom subsequently, as the Courts would be prepared

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to take judicial notice of it. Buraimo v. Gbamgboye (1940) 15 NLR 139; Giwa v. Erinmilokun (1961) 1 SCNLR 337. In Oyewunmi & Anor v. Ogunesan (1990) 5 S.C. (Pt.1); (1990) LPELR – 2880 (SC) at page 40, my Lord, Iguh, JSC succinctly stated that:
“Under our law, customary law is a question of fact (see Taiwo v. Dosunmu (1966) NNLR 94 to be proved by evidence (see Otogbolu v. Okeluwa (1981) 6 – 7 S.C. 99 or judicial notice if it has been established as required by Section 14(2) and Section 73 Evidence Act or law as the case may be in decisions of the superior Courts of law.
Customary law is the organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is organic in that it is not static. It is regulatory in that it controls the lives and transactions of the community subject to it. It is said that custom is a mirror of the culture of the people. I would say that customary law goes further and imports justice to the lives of all those subject to it.”
In his own contribution and concurring judgment, his
Lordship, Nnamani, JSC (now of blessed memory) at page 57 of the report had this to say, with

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respect to the ascertainment of customary law, thus:
“The locus classicus case for the ascertainment of customary law and subsequently of judicial notice is the Judicial Committee of the Privy Council decision of Kobina Angu v. Allah P. C. ’74-’28, 43. There, the formula for the ascertainment of native law and custom was stated as follows:-
“As is the case with all customary law, it has to be proved in the first instance by calling witnesses acquainted with the native customs until the particular customs, by frequent proof in the courts, have become So notorious that the courts will take judicial notice of them.”
According to Angu v. Allah, the two tests are in alternative. They are (a) Calling witnesses acquainted with the custom in the Courts. (b) When the frequent proof in the Courts the particular custom becomes notorious.”
Further see: Nsirim v. Nsirim (1995) 9 NWLR (Pt.418) 144; Onyenge v. Ebere (2004) 13 NWLR (Pt.889) 20; Olowu v. Olowu (1985) 3 NWLR (Pt.13) 372.

Now, in the instant case here, the respondent in attempting to prove the customary law applicable in the Umuokpu village Awka chose the first option of proving that

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customary law as set out in Angu v. Allah (supra).

The respondent at paragraphs 1, 2, 8, 9 and 10 of the amended statement of claim pleaded the Nrachi custom in Awka town and particularly in Umuokpu village in Awka to the effect that if a man during his lifetime did not give birth to a male child, he can decide to retain and install one of his daughters in his compound by Nrachi so that any male child begotten by the daughter so retained at home, steps into the shoes of the man in accordance with the native law and custom of Umuokpu village, Awka. The appellant at paragraphs 2, 3, 8, 9 and 10 of the statement of defence denied the averments and assertions of the respondent and maintained that Nrachi custom does not exist in Umuokpu village Awka. Therefore, clearly issues were joined by the parties with respect to the Nrachi custom, in question, being in vogue in Umuokpu village. The respondent in order to prove his assertion of the practice of Nrachi in his village testified for himself at pages 184 ? 186 of the record of appeal. Answering questions under cross-examination by appellant’s learned counsel at pages 192 ? 193 of the record of

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appeal, the respondent said:
“There is custom of Nrachi in the entire Awka which includes Umuokpu Awka. All I know is that Nrachi custom operates in Awka and in so many Ibo land, and infact it is an Ibo custom for backward area or for enlightened community. By Nrachi custom, a man who had not got a son can initiate any of the daughters he liked to be subrogated to his position for the purposes of getting a male issue for the continuity of the man’s lineage. My father did not marry my mother who was his daughter rather he initiated her into “Nrachi” custom so that she would get a male child for him as God would have it the first son of my mother was a male issue which is my humble self and she named me Nnaemeka. It is true that my mother was kept in my father’s house by Nrachi custom….”
The respondent, under further cross-examination at page 199 of the record of appeal, also said:
“According to Awka Native Laws and Custom any man that has not got a male child can allow one of the daughters by way of “Nrachi” to raise issues for the purposes of getting a male child that will inherit the assets of the father and continue the lineage.”<br< p=””

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Thereafter, the respondent’s witness – PW2, was a 98 – year old man. His evidence-in-chief spans from pages 201 to 204 of the record of appeal. At pages 202 – 203 thereof he testified with respect to the existence of the “Nrachi” custom, thus:
“Umuokpu Awka is one of the villages in Awka. Nwuya Nwoke is given to a male issue by a woman who has been given birth to female issues, so when she gets a male issue she will give him the name Nwuya-Nwoke.
Nwuya Nwoke referred to a man who married a woman and has been given birth to female issues. It is either the 2nd to the last or the last of the females that is given the name Nwuya Nwoke. The implication of this is that the man will now retain this Nwuya Nwoke in his family so that she can get a male issue for him by way of “Nrachi”.
PW2 continued: “I know the plaintiff in this case. I also know defendants. They are all from Umuokpu. The parties in this suit appeared before the Ozo titled men in Awka, where the plaintiff told us that his other relations are trying to deprive him of his rights in the family. The defendant spoke to us the Ozo titled men after we have heard the case or complaint of the

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plaintiff. The Ozo titled men after hearing both parties came to the conclusion that Nrachi is an ancient custom of Awka and that they the Ozo people should not destroy it. That the custom lives from generation to generation for anybody that does not have a male issue to retain one of the daughters so that by God’s grace he will get a male issue that will keep to the family name.

It is not true that in Awka generally and in particular Umuokpu that there is nothing like “Nrachi” anybody who says that there is nothing like Nrachi in Awka is not from Awka and is not telling the truth. I am over 98 years old and since I was born I have been hearing of this Nrachi in Awka. I know the Nwuya Nwoke the mother of the plaintiff who was initiated to Nrachi custom by her father. A male child born through Nrachi customs automatically steps into the shoes of her mother’s father and takes full control and rights to the property of that her mother’s father as his own on the death of the man. He inherits the compound of her mother’s father and inherits the lands of the man. The person born by Nrachi custom is not called Nwadiana in Awka. Under Awka custom if there is any

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land owned in common, when it is shared, the plaintiff will take that of her mother’s father. If the land is shared in accordance with rationable adults then he will get his own share under that system.
The ozo titled men are the highest organ and authority as regards to Awka custom.”

The cross-examination of PW2 by the appellant’s learned counsel is at pages 203 – 205 of the record of appeal. There were no direct questions put to the PW2 with respect to the existence of Nrachi custom in Umuokpu Awka. However, all the defence witnesses for the appellant denied that the Nrachi custom existed in Umuokpu village, Awka. Instructively though, the appellant as DW3 at page 217 of the record of appeal, seemed to have admitted that Nrachi custom existed in Umuokpu village, Awka.
Hear him:-
“I have heard about Nnachi custom in Umuokpu Awka. I know of Nnachi custom which operates in a family that has no male issue to inherit the compound of a man without a male child. The position of Nrachi in Umuokpu custom operates in a situation where a man has only females, then what the man does is to go and marry another woman from elsewhere for purposes of

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raising male children.”

The ipse-dixit of the appellant reproduced above, to my mind contains half – truths. It is true that he admitted that Nrachi custom exists in Umuokpu and that it operates in a family that has no male issue to inherit the compound of a man without a male child. However, the untruth in his evidence is with respect to that piece where he stated that where a man has only female children, he goes to marry another woman from elsewhere for purpose of raising male children. There is nothing peculiar and unique in that latter part of the appellant’s evidence. The uniqueness of the Nrachi custom is the retention and initiation of a female child by a father who had no male child, so that the retained female child remains in the father’s compound to bear possibly, male children for the father who will inherit the compound of the father and perpetuate the father’s lineage. The learned trial judge was quite on target when he found and held at pages 240 – 243 of the record of appeal, as follows:
“The fulcrum on which this case revolves is whether or not the plaintiff was born by a mother or a woman who went under the process of Nrachi

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custom in accordance with Awka custom. If the answer is yes what are the rights and privileges of a person born under Nrachi custom? There is in evidence in this case that there are 33 villages making up Awka town. These 33 villages making up Awka town includes Umuokpu, Awka town is governed by one and the same custom all through. This is so because the evidence showed that this issue of Nrachi which is at the centre of this dispute is an ancient custom in Awka which has been handed down from generation to generation. That this custom is a generally accepted practice whereby a man who has only female issues can initiate any of his daughters through Nrachi custom to stay in his house and raise issues for purposes of begetting male issues who will continue to maintain the lineage of the man so that his lineage will not be lost. So, the Nrachi custom is a panacea that cures a situation where a man has no son to step into his shoes when he dies, he therefore initiates his daughter into Nrachi custom to raise male issues in order to keep alife his lineage. In Ibo language you hear of the name “Afamafuna”. So Nrachi custom which is almost a custom in the whole of

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Ibo land ensures that ones lineage does not go into extinction.

?The whole of the Defence witnesses particularly DW2 to DW5 testified that out of 33 villages making up Awka town that there is nothing like Nrachi custom in Umuokpu. This sounds very strange and to my mind I do not think the defence witnesses were speaking the truth. All of them were in agreement that Angelina Nwunyenwoke Muo is the mother of the plaintiff and that this woman was never married, lived and died in the house of the father Muo Emezinam Nwokeke in his Obu. The defence tried to discredit the woman that she delivered the plaintiff out of waywardness and that she did not marry because she was deformed. Even at that a man who has no male child and a daughter of his delivers to a male child it is always regarded as a blessing and certainly that male child takes over the compound of his mother’s father at his death and even regards that his father’s mother as his father. The child is never ostracized as though he is an outcast as the defendant and his witnesses are trying to show in this case when they are referring to the plaintiff as a stranger. However the issue here is that the

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mother of the plaintiff went through Nrachi custom and this court believes the existence of that custom throughout Awka including Umuokpu. The PW2 a 98 year old man told this Court that anybody who says that there is no Nrachi custom in Awka that that person is not from Awka. He testified that it is an ancient custom which has lasted from generation to generation.

Native Law and custom must be strictly proved and although its proof does not depend on number of witnesses called nevertheless the uncorroborated evidence of the person who asserts it is not sufficient. Here there are evidence of two material witnesses which corroborated each other. It is a well established principle of law that Native law and Custom is a matter of evidence to be decided on the facts presented before the Court in each particular case unless it is of such notoriety and has been so frequently followed by the courts that judicial notice will be taken on it without evidence required in proof.
See Otaru vs. Otaru (1986) 3 NWLR (pt. 26) p. 14 @ p.15.

?The plaintiff by credible evidence has established the fact that there is Nrachi custom in the whole of Awka inclusive

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Umuokpu.

The evidence also showed that a male child born under Nrachi custom automatically at the death of the father of his mother steps into the shoes of the man by occupying his compound or Obu as the case may be and inherit all his landed properties and assets.

Evidence showed that the plaintiff stepped into the shoes of Muo Emezinam Nwokeke since his death and has been living in his compound along with his mother and even at the death of his mother the plaintiff still lives in the compound of Muo Emezinam till date.”
The appellant could not demonstrate and convince me to disagree with the findings of the learned trial judge. I find those findings as being unassailable and cannot agree any less with his Lordship. Indeed, there is no rule or law that evidence of customary law must be corroborated before the Court can act on it. Alfred Osibafo & Anor v. Christopher Osibafo (2005) 4 M.J.S.C. 82. Even that notwithstanding, in the instant case, the uncontradicted evidence of PW2 clearly supported the evidence of the respondent (PW1) who asserted the existence of Nrachi custom in Umuokpu village, Awka.

Learned appellant’s senior counsel

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harped so much on the need for the witnesses who witnessed the initiation ceremony of the respondent’s mother Angelina Nwuyanwoke Muo, through the Nrachi custom to have given evidence of the same.
He insisted that in customary law, the proof of customary pledge must include the fact that such a pledge took place in the presence of witnesses. Of course, that is necessarily so because in order to give credibility to any alienation or sale of land owned by a particular family, to a person outside the family, the law is that for any transfer of title to land/sale of land from one family to another person outside the family to be valid, there must be payment of money or an agreed consideration; the transaction must be witnessed by witnesses and the actual handing over of the land, must be done in the presence of the same witnesses. Adedeji v. Oloso (2007) 1 SCNJ 397 at 414-415. I am afraid, I cannot stretch the requirements of proving customary sale or transfer or pledge of land, to the proof of Nrachi custom, in the circumstances of the instant case.

I have considered the submissions of both learned senior counsel for the respective parties, with

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respect to whether or not there was some partitioning of some lands belonging to Ozo Nwokeke Elenwe between Nwogbo Nwaobuekwe – the father of the appellant and the respondent. The learned trial judge at pages 243 – 244 of the record of appeal found that:
“Exhibits B – B9 showed various portions of land of Ozo Nwokeke Elenwe already shared between the plaintiff and the father of the defendant by name Nwogbo Nwaobuekwe the original first defendant in this case. If the defence (sic) case is true that the plaintiff is a stranger, the question will then be why did Nwogbo Nwaobuekwe share the landed property of Ozo Nwokeke Elenwe with the plaintiff. The plaintiff has occupied the compound of his mother’s father Muo Emezinam Nwokeke all these years and the plaintiff from the estimation of the Court is not less than 60 years………. The sharing of the land of Ozo Nwokeke Eluenwe between the plaintiff and Nwogbo Nwaobuekwe the original 1st defendant in this showed that the plaintiff was and is acknowledged as the person who is occupying the position of Muo Emezinam Nwokeke who really occupied the Obu of Ozo Nwokeke Elenwe.”

?I believe that Exhibits B – B9

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really assisted the learned trial judge in coming to the conclusion that the respondent and the appellant’s father -Nwogbo Nwaobuekwe shared some portions of Ozo Nwokeke Elenwe’s land. And as rightly submitted by the respondent’s learned senior counsel, perhaps if the appellant had filed counter – survey plans, in opposition to the Exhibits B – B9, the story could have been different. In Obi v. Ozor (1991) 9 NWLR (pt. 213) 94 at 105, this Court, per Kolawole, JCA., succinctly stated that,
“The purpose of filing a counter – plan by a defendant in a land matter is to indicate very clearly that the plaintiff’s plan does not accurately represent the correct position of the features on the land in dispute or that the land in dispute is wrongly delineated.”

The law is well settled to the effect that documentary evidence, if not challenged in any manner pejorative to its integrity and authenticity must be believed, accepted and acted upon by the Court. Lasisi Ogbe v. Sule Asade (2009) 12 SCNJ 2BB; Esiegbuya Soomon & Ors v. Etsede Monday (2014) LPELR – 22822 (CA).

Furthermore, where there are conflicting pieces of evidence on a particular question by the

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opposing parties in an action, the party whose evidence is supported by documentary evidence, is accorded more credibility by the Court. Eya v. Olopade (2011) 11 NWLR (pt. 1259) 505. Exhibit D which was made in 1997 after the partitioning of 1993 cannot square up with Exhibits B – B9, in the circumstances herein.

With respect to the contention by the appellant’s learned senior counsel, bordering on the issuance of a subpoena on one Dr. S. E. Onejeme and whether the said Dr. Onejeme really detailed PW2 to give evince at the Court below, I am of the considered opinion that the PW2 was not under any obligation to produce in Court the subpoena that was not issued to him, but to Dr. Onejeme. In any event, the learned trial judge was within his province to accept or reject the evidence proffered by the PW2 with respect to the existence of Nrachi custom in Umuokpu village, Awka, whether or not PW2 was detailed by Dr. Onejeme to come to Court and give evidence. The learned trial judge rightly, in my view, believed and accepted the evidence of PW2. The appellant was at liberty to have called any other member of the Ozo title men, whom he believed was on the same

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page with him, in his contention that Nrachi custom was non-existent in Umuokpu village, Awka. He did not do that, nor did he impugn the evidence proffered by PW2 with respect to the existence and practice of Nrachi custom in Umuokpu village, Awka.

In sum, I find the appeal as lacking in merits, since I have resolved all the issues in it, against the appellant. In consequence, the appeal is dismissed.

The well – considered judgment of F. C. Nwizu, J., in re suit No.A/193/97, delivered at the Anambra State High Court of Justice, Awka on 19th December, 2006, is hereby affirmed.

The appellant shall pay costs of N100,000.00 to the respondent.

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Other Citations: (2016)LCN/8650(CA)