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

Indeed, it is the defence case that the Defendant remarried the plaintiff’s mother but not by “Itugha Nkwu” custom but by performing “Inye Mma” custom and that the plaintiff is therefore his first son and so, should customarily take his inheritance after the death of his father i.e. the original sole defendant (Stephen Ojiogu).The appellant’s […]

Indeed, it is the defence case that the Defendant remarried the plaintiff’s mother but not by “Itugha Nkwu” custom but by performing “Inye Mma” custom and that the plaintiff is therefore his first son and so, should customarily take his inheritance after the death of his father i.e. the original sole defendant (Stephen Ojiogu).
The appellant’s case is that nowhere in the pleadings and evidence before the trial court has the question of the repugnancy of the said “Itugha Nkwu” custom of the Nnewi people been made an issue in the case. And that in that vein it is needless asserting whether neither the plaintiff/appellant and his eight witnesses nor the defence five witnesses have testified or even have been cross-examined as to the repugnancy of “Itugha Nkwu” custom of the Nnewi people. The appellant argues that the question has now surfaced for the first time via the issue raised for determination in the court below and as having been formulated from ground one of the grounds of appeal filed by the instant respondent as the appellant in the court below.
The appellant has challenged the competency of the issue as it has not arisen from ground one or any of the grounds of appeal and so it has not been properly laid before the court below for adjudication. See: Attorney-General Bendel State v Aiyedan (1989) 4 NWLR (Pt.118) 646 at 665; Opara v Omolu (2002) 10 NWLR (Pt.774) 177 at 189 Paragraph H; Yusuf v Kode (2002) 6 NWLR (Pt. 762) 231 at 245 paragraph D; Osinupebi v Saibu (1982) 7 SC.104 at 110 and Ogundiyan v State (1991) 3 NWLR (Pt.181) 519 at 532.
He also submits in the circumstances, that such an issue not having been founded on any of the grounds of appeal has even then raised a fresh issue of repugnancy of “Itugha Nkwu” custom before the court below and therefore requires leave of Court and that without leave having been first sought and obtained the said issue for determination has been incompetently raised. See: Musa v INEC (2002) 11 NWLR (Pt.778) 223 at 300 paragraphs B-E; Queen Bank PIc v Olatunyi (2002) 12 NWLR (Pt.781) 259 at 302 paragraphs C- F. that the custom is repugnant to natural justice, equity and good conscience, the facts must be pleaded to give notice to the other party.
It is settled law that customary law is a question of fact which must be proved or established by evidence. Equally settled is the principle that facts relevant to the proof of an issue in contention must be pleaded by the party intending to rely on same before any evidence can be adduced thereon. However where such relevant fact is not pleaded any evidence given in proof of same is said to ground no issue.
In the instant case, if it was the intention of the respondents to rely on the principle of repugnancy, it was their duty to have pleaded facts to ground the said principle which they failed to do. It is not enough to say that appellant was born seven (7) years after the death of his purported father and that since it is naturally impossible for the late husband of Margaret to be the father, the custom that deemed him the father is repugnant to natural justice, equity and good conscience. The party relying on that principle must not only plead facts to show how repugnant the custom but must also adduce evidence to establish the repugnancy.
In the instant case, none of the above is present and I hold that the lower court was in error when it applied the principle in the circumstances.
That apart, the issue of repugnancy as formulated by counsel to the appellant at the lower court did not arise from Ground 1 of the grounds of appeal as alleged.
Ground 1 of the Grounds of Appeal complains thus:-
Error in Law
The learned trial judge erred in law when he held that the plaintiff though admitted by all the parties to be born about seven (7) years after the death of his mother’s husband, Nwachukwu Ojiogu, was still the natural son of the said Nwachukwu Ojiogu to enable him succeed as the “Okpala” of Ojiogu family and occupy the “Obi” and lands of Ojiogu Ifionu.
Particulars
(a) Both in the parties pleading and evidence, it is not disputed that Nwachukwu Ojiogu died in 1949.
(b) Both in the parties’ pleadings and evidence, it is not disputed that the plaintiff was born almost about seven (7) years after the death of Nwachukwu Ojiogu.
(c) From the above admissions, it is abundantly clear that the plaintiff can never be the natural son of Nwachukwu Ojiogu to enable him succeed as the “Okpala” of Ojiogu Ifionu family.
(d) There is abundant evidence that the Plaintiff is a product of a marital relationship between Stephen Ojiogu and the plaintiff’s mother, years after the death of Nwachukwu Ojiogu the former husband of the plaintiff’s mother.
Now the issue formulated by the appellant in the lower court allegedly as by arising from the above Ground of Appeal and on which the lower court determined the appeal, is as follows:
“Whether it is not contrary to natural justice, equity and good conscience for the plaintiff to claim that he is the son of Nwachukwu Ojiogu, the deceased husband of his mother and as a result disinherit the defendant of the Obi compound and other lands when he was born seven (7) years after the death of his mother’s husband, Nwachukwu Ojiogu”.
From the ground of appeal it is very clear that the issue formulated for determination does not arise from that ground of appeal and as such it ought not to have been countenanced by the lower court. The ground of appeal does not complain of the custom in issue being repugnant to natural justice, equity and good conscience – that is granted that there was any pleading and evidence in that respect in the decision of the trial court on the matter. When one looks at particular (d) of the Ground of
Appeal supra, it is clear that the appellant before the lower court was still sticking to his story that he had remarried the mother of the plaintiff and that the plaintiff is a product of that marriage.
I am not saying that in an appropriate case the custom in issue may not be found to be repugnant to natural justice, equity and good conscience particularly where the relevant facts, pleadings and evidence adduced to establish same are present. All that I am saying is that in the instant case, the issue of repugnancy did not arise for determination and the lower court was in grave error when it decided the appeal on that issue, which was even raised for the first time before that court and without leave as required by law. There was no ground of appeal to support or sustain the issue.
A custom is the way of life of the people. This particular one must have been borne out of the people belief that a woman, particularly a married one, is a chattel to be owned. Be that as it may, it remains the custom of the people unless in an appropriate case it is properly and legally declared repugnant to natural justice, equity and good conscience. In the instant case, both parties recognise this particular custom and relied on it in attempt to establish their respective contentions. There was no question of the custom being repugnant.
It is for the above reasons and the more detailed reasons contained in the lead judgment of my learned brother Chukwuma-Eneh. JSC just delivered that I too find merit in this appeal which is accordingly allowed.
I abide by the consequential orders contained in the said lead judgment including the order as to costs. Appeal allowed.
Judgment delivered by Muhammad Saifullahi Muntaka-Commassie. JSC.
I have had a preview of the leading judgment prepared by my learned brother, Chuwuma-Eneh, JSC which has just been delivered. I agree with the conclusions as set out therein. I abide by the order on costs made in the leading judgment. Appeal allowed.
Counsel Gordy Uche, with him Doris Chime (Miss), Ebere Nwanya (Miss)
– For the Appellant.
F.A. Kaine (Miss)
– For the Respondents
Judgment delivered by Christopher Mitchell Chukwuma-Eneh, JSC

(Concluded