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  • Mojekwu v. Iwuchukwu
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  • 2004-06-14
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Mojekwu v. Iwuchukwu

AUGUSTINE NWAFOR MOJEKWU

V

MRS. THERESA IWUCHUKWU

[ By substitution for Caroline Mgbafor O. Mojekwu - deceased ]

SUPREME COURT OF NIGERIA

UTHMAN MOHAMMED, JSC ( Presided )

ALOYSIUS IYORGYER KATSINA-ALU, JSC

SAMSON ODEMWINGIE UWAIFO, JSC ( Read the Lead Judgment )

DAHIRU MUSDAPHER, JSC

IGNATIUS CHUKWUDI PATS-ACHOLONU, JSC

SC. 11/2000

FRIDAY, 23RD APRIL, 2004

APPEAL - Concurrent findings by lower courts - Conditions for to stand

COURT - Concurrent findings by lower courts - Conditions for to stand

COURT - Customary law - Issues joined by parties thereto - Duty and scope of confinement thereto

COURT - Duty of to protect the weak and not to support invidious and odious act

COURT - Issues - Raising of suo motu without hearing parties Impropriety of

COURT - Issues joined by parties - Duty on court to confine itself thereto - Effect of non-compliance


COURT - Issues raised by parties - Duty to confine itself thereto

COURT - Issues raised on customary law - Duty to limit itself to same

CUSTOMARY LAW - Kola tenancy - Impropriety of holder thereunder to absolutely alienate land held thereby 

CUSTOMARY LAW - Kola tenancy - Nature of

CUSTOMARY LAW - Kola tenancy under the Mgbelekeke family customary law - Whether inheritable by children of deceased irrespective of sex

JUSTICE - Judicial declaration or pronouncement - Need for to be founded upon a cause

LAND LAW - Propriety in a dispute - Law applicable thereto

NATIVE LAW AND CUSTOM - Issues joined by parties thereto - Scope of court’s limitation in relation thereto

NATIVE LAW AND CUSTOM - Repugnancy test - Duty on court to properly consider

NATIVE LAW AND CUSTOM - Repugnancy test - Scope of

WORDS AND PHRASES - ‘Kola tenancy’ - Meaning of

Issues:

1.             Did the Court of Appeal formulate an issue by declaring the ‘Oli-ekpe’ custom of Nnewi repugnant to natural justice, equity and good conscience?

2.             Is it correct that exhibit 1 is not of much assistance to the plaintiff, and were the step daughters of the respondent not aware of what they did when they signed it but only vouched to the authenticity of the signature of the appellant in that document?

3.             Did Patrick, the son of the respondent, marry and bore (sic) a son in 1973 named Emeka?

4.             Is it correct that there is no averment in paragraph 8 of the amended statement of claim that under kola system of tenancy, the plaintiff is entitled to the land in dispute and is it true that the relief sought in paragraph 14(a)(i) does not assist the appellant since there is no averment in the statement of claim to support it?

Facts:

This case relates to the system of kola tenancy in Ibo land. In this case, it is known as the Mgbelekeke family kola tenancy system of Onitsha. In June 1983, the plaintiff filed this action in Onitsha High Court in respect of property subject of the said kola tenancy against one late Mrs. Caroline Mgbafor Mojekwu, later substituted by Mrs. Theresa Iwuchukwu and claimed as follows:

(a)           A declaration that the plaintiff is entitled to the statutory right of occupancy of the property situate at and known as No. 61 Venn Road South Onitsha in accordance with Nnewi native law and custom;

 (i) A declaration that the plaintiff being the recognised kola tenant of the Mgbelekeke family of Onitsha is entitled to the statutory right of occupancy of the property situate at and known as No. 61 Venn Road South Onitsha in accordance with the Mgbelekeke family of Onitsha kola tenancy.

(b)           N5,000.00 (five thousand naira) being general damages for trespass.

(c)           Perpetual injunction restraining the defendant, her servants, agents and privies from committing further act of trespass.

(d)           An account of rents collected by the defendant from No. 61 Venn Road South Onitsha, from the month of April, 1982 until the delivery of judgment in this suit.

Each party substantiated their case through evidence. The trial Judge considered same and dismissed the action. The plaintiff appealed to the Court of Appeal, which unanimously dismissed the appeal. The plaintiff further appealed to the Supreme Court.