‘A custom is way of life of people until repugnancy principle is applied’

In the trial court i.e. the Anambra State High Court of Nnewi Judicial Division the plaintiff (the appellant) claims against the sole defendant – Stephen Ojiogu (deceased) (later substituted by the respondents) as per paragraph 20 of the amended statement of claim as follows:“(i) A declaration of court that the plaintiff is the son of […]

In the trial court i.e. the Anambra State High Court of Nnewi Judicial Division the plaintiff (the appellant) claims against the sole defendant – Stephen Ojiogu (deceased) (later substituted by the respondents) as per paragraph 20 of the amended statement of claim as follows:
“(i) A declaration of court that the plaintiff is the son of late Nwachukwu Ojiogu, the elder brother of the Defendant and as such the person entitled to occupy the “Obi” compound and “Obi” lands of Ojiogu Ifionu of Ndiojukwu-Uruagu-Nnewi in accordance with the Nnewi Native Law and Custom.
(ii) A declaration of court that it is the right and responsibility of the plaintiff under Nnewi law and custom as “Diokpala” in Ojiogu Ifionu family to allot to the defendant, the defendant’s share of the unshared family land of Ojiogu.
(iii) A declaration of court that the three commercial buildings erected (sic) on Ojiogu Ifionu’s family land by the Defendant from the proceeds of a disposition by sale of a portion of Ojiogu Ifionu family land to one Eric Anosike are common properties of both plaintiff and the defendant.
(iv) An injunction restraining the defendant his agents and servants from unilaterally meddling, controlling, alienating or managing any portion of Ojiogu Ifionu’s estate whatsoever at the exclusion of the plaintiff who is a full grown adult-male with children, until the said estate is properly shared and demarcated between the plaintiff and the defendant under Nnewi native law and custom.”
Nine witnesses including the plaintiff testified in support of the plaintiff’s case while five witnesses testified for the defence.
At the close of learned counsel’s addresses the trial court in a considered judgment upheld the plaintiff’s entitlement to the reliefs sought in the claim and granted the same accordingly. In concluding the judgment, the trial court at page 240 of the record pronounced as follows:
“I have held above that from the evidence before me, Stephen Ojiogu did not perform “Itugha Nkwu” customary ceremony for Margaret Ojiogu. That being so, Margaret Ojiogu continued to be the wife of Nwachukwu Ojiogu since she is still living in Nwachukwu Ojiogu’s (sic) house, under the customary law of Nnewi people. I hold that the Plaintiff even though born seven years after the death of Nwachukwu Ojiogu, is the son of Nwachukwu Ojiogu according to the customary law of Nnewi people.
There is evidence that the plaintiff is the first son of Nwachukwu Ojiogu. It follows then that since it is common ground that Nwachukwu Ojiogu was the head or Obi of Ojiogu Ifionu family and that Ojiogu lfionu’s property has not been shared, the Plaintiff is the head or Obi of Ojiogu’s lfionu’s family, and I so hold.”
The defendants being dissatisfied with the decision have appealed to the Court of Appeal, Enugu Division which allowed the appeal and set aside the judgment of the trial court by holding at page 326 of the Record thus:
“From the facts of this case, it is not disputed that the respondent was born seven years after the death of his purported father. A dead person cannot procreate. The Nnewi custom which allowed such a practice is certainly contrary to natural justice, equity and good conscience. The trial judge was therefore wrong in upholding that custom. Consequently, it is my view that the first relief in the respondent’s claim upon which defended the other Reliefs was not proved before the trial court.”
The implication from the foregoing is that the court below in exercise of its equitable jurisdiction has acted as the “keeper of the conscience of native communities” as it were and so has not seen it fit to approve of the “Itugha Nkwu” custom of Nnewi people. In striking down this custom it has employed the repugnancy clause principle which I will have to expatiate upon later in this judgment.
Being dissatisfied with the decision, the plaintiff (i.e. appellant) has appealed to this court as per a Notice of Appeal filed on 9/11/2004 containing three grounds of appeal. In his brief of argument filed on 23/4/2007 in accordance with the rules of this court, the appellant has raised two issues for determination to wit:
1. “Whether it was proper for the Court of Appeal to decide the appeal before it on the basis of an issue not treated at the trial court and in respect of which there was no ground of appeal and no leave was sought or granted for same to be raised as a fresh point on appeal.
2. Whether the Court of Appeal was right to apply the decision in Okonkwo v Okagbue (1994) 9 NWLR (368) 301 to invalidate the “Itugha Nkwu” custom when both parties accepted and admitted the custom as applicable.”
The Defendants have also on 15/1/2010 filed the respondents’ amended brief of argument and therein have raised one issue for determination to wit:
“Whether the issue of repugnancy came up in the Court of Appeal for the first time, and if it did whether or not the Court of Appeal could have dealt with it without leave and indeed whether the claim of the appellant that he was the son of Nwachukwu Ojiogu who died seven years before he was born, is repugnant to natural justice, equity and good conscience.”
Save perhaps expatiating further on the custom of “Itugha Nkwu”, I think the facts as stated in the above Reliefs will suffice in dealing with i.e. resolving the main issue in this appeal. On the pleadings as per the amended statement of claim and evidence by the plaintiff/appellant as conceded by the defendants/respondents – the instant custom dictates that for a brother to re-marry his late brother’s wife he has to perform “Itugha Nkwu” custom.
The details of its performance as such are immaterial here for, again, dealing with this appeal. However, the effect of its performance is that the brother of the deceased now takes over the burden and responsibilities including inheriting the proprietary rights of the late brother’s family as he remarries his late brother’s wife. But where this custom has not been performed because the late brother’s wife is not willing, as in this case, it is permissible for the brother all the same to perform “Inye Mma” custom which enables the widow of his late brother to end the widowhood and get re-integrated into the family and larger society. In fact, it is not in dispute that the late original defendant i.e. Stephen Ojiogu has performed “Inye Mma” custom and is the biological father of the plaintiff.

(To be continued)