General Overview
The facts of this case are quite interesting and complicated. Mr. Augustine Mojekwu, the Appellant in this case claimed ownership of the Respondent’s (Mrs. Caroline Mojekwu) husband’s property, relying on the Oli-ekpe custom predominant in some parts of the Southeastern part of Nigeria.
An understanding of the nature of the Oli-ekpe custom is germane to fully appreciate the facts of this case. The nature of the Oli-ekpe customary law under the Nnewi native law and custom is that it excludes the female offspring of the deceased from lawful inheritance. In such case, the deceased’s brother will inherit the property of the deceased.
However, if the deceased is survived by a male heir and that male heir dies leaving no male offspring, the father’s brother will inherit the property. If, on the other hand, the deceased’s brother (i.e., the uncle) dies, leaving male off springs, the sons will inherit the property of the dead cousin. Specifically, the “diokpala” (i.e., eldest son of the uncle) will inherit the property. The son of the uncle is called “Oli- ekpe” i.e., he inherited the property of his relation. He inherits the lands, the wives of the deceased and if the deceased had daughters, he will give them in marriage. In essence, he inherits the assets and liability of the deceased.
In the instant case, the appellant claimed to be the Oli-ekpe entitled to the property of the deceased, to the exclusion of the wife and daughters of the deceased. In line with this, he instituted an action against the respondent and argued that the Oli ekpe custom allows the deceased closest male relative to inherit his property.
The respondent claimed that her son, Patrick, predeceased her husband and should inherit the property. The appellant disputed the fact and claimed that the deceased had no son.
The High court dismissed the claim of the Appellant to the property of his deceased uncle under the Oli-ekpe custom, to the exclusion of the female children of the deceased.
Dissatisfied, the plaintiff appealed to the court of appeal. The court of appeal unanimously dismissed the appeal and affirmed the decision of the High court.
Brief Discussion on the Decision on the Court of Appeal
Centered on the facts and evidence adduced, the court found that the Kola tenancy governed the transfer of the house. The kola tenancy under the kola tenancy law, 1935 is a right of use and occupation of any land in return for a kola or other token payment to the grantor as an acknowledgement of the grantor’s title. The grantee enjoys all the rights of an owner except the right of absolute disposition.
The court reconciled the conflict of law as to which law governs the inheritance of and succession of landed property i.e., the Oli-ekpe or the kola tenancy. The personal law of the deceased or the lex situs. The court held inter alia:
“Generally, land or other immovables are governed by the lex situs, that is the law of the place where the property is situate or is situated. In the instant case, the law applicable is the lex situs, that is the Mbelekeke family kola customary tenancy. (299, para. G)”
Based on this, the argument of the appellant of the absence of a male heir to the deceased became irrelevant since the Kola tenancy (the lex situs) which governs the deceased allows for female inheritance.
Moving forward, the Court suo moto subjected the Oli-ekpe to the validity test and it failed woefully. The custom was declared as repugnant to natural justice, equity and good conscience and the repugnancy doctrine was applied. The repugnancy doctrine mandates that the court should not enforce any custom once it is contrary to public policy or repugnant to natural justice, equity and good conscience.
Commenting on the repugnant nature of Oli-ekpe, Tobi, JCA (page 305, paras B-C) gave the famous dicta:
“We need not travel all the way to Beijing to know that some of our customs, including the Oli-ekpe custom relied upon by the appellant, are not consistent with our civilized world… On my part, I have no difficulty in holding that the “Oli-ekpe” custom of Nnewi is repugnant to natural justice, equity and good conscience”
Furthermore, the court also held that the custom is contrary to human rights as guaranteed by the Constitution of the Federal Republic of Nigeria, 1999 (as altered) specifically Section 42 which prohibits discrimination based on sex or any other factor. It was also held contrary to the Convention on the Elimination of all forms of Discrimination against Women which strongly prohibits discrimination on the basis of sex.
The appellant sought alternative relief and the court showed its displeasure on seeking alternative reliefs. It shows either he is not positive in respect of his main relief or does not want to take chances. The court remarked thus:
” On the contrary, a court of law is a forum for well-articulated, precise and succinct relies on the part of the plaintiff” (P. 308, paras. A-B)
My Opinion
This penultimate court decision came at the right time. It was high time the court started to sample and filter the application of our customs (barbaric or not). The relevance validity test as applied by the court cannot be over emphasized, as our customs need to be filtered in order to achieve fairness and justice.
Barbaric customs like the Oli ekpe cannot be allowed to govern inheritance and subsequently subject the female children of the deceased to a life of penury or promiscuity or “hook-up[1]” (in local parlance) which is largely associated with poor and struggling ladies. On hindsight, it may not even be the wish of the deceased to leave nothing for his beloved female children upon his death. Which father will leave nothing for his children?
This case law is clear on the conflict of personal law and lex situs as regards landed and immovable property. It didn’t deviate from the general view that the lex situs is applicable to landed property.
It very commendable that the court upheld the fundamental human right of the respondent as provided in the constitution. It is trite principle of law that fundamental right is a right which stands above the ordinary laws of the land and which is in fact, antecedent to the political society itself (Per Eso JSC in Ransome Kuti v. AGF[2]).
I couldn’t agree more that the right of the respondent to freedom from discrimination should override the Oli-ekpe custom. As a result of this, this case has been cited by numerous gender equality advocats, women’s human right activists and the likes. One can hardly see a brief of argument relating to custom and tradition or the right of women without the famous dicta of Tobi, JCA as regards the repugnancy of barbaric customs.
Appeal to the Supreme Court
The appellant did not stop at the Penultimate as he wanted to exhaust the machinery of the law. He further appealed to the Supreme court in 2004.
However, the names of the parties changed because the respondent, Mrs. Caroline passed away and her daughter, Mrs. Iwuchukwu was substituted as a party to the case.
The legal issue for determination was whether the Court of Appeal erred in holding the Oli-ekpe custom to be repugnant and contradictory to the gender equality provisions provided under the Constitution of Nigeria and pertinent international human rights instruments.
The Supreme Court showed its displeasure and berated the Court of Appeal for subjecting the Oli-ekpe custom to validity test suo moto. The Supreme Court stated that the rules of procedure precluded the Court of Appeal from determining whether the Oli-ekpe was repugnant since neither of the parties to the case brought the validity of the custom as a legal issue before the court. Parties, as well as the court is bound by the pleadings of parties.
Justice S.O. Uwaifo criticized the Court of Appeal thus:
“I cannot see any justification for the court below to pronounce that the Nnewi native custom of ‘Oli-ekpe’ was repugnant to natural justice, equity and good conscience…the learned justice of appeal was no doubt concerned about the perceived discrimination directed against women by the said Nnewi ‘Oli-ekpe’ custom and that is quite understandable. But the language used made the pronouncement so general and far-reaching that it seems to cavil at, and is capable of causing strong feelings against, all customs which fail to recognize a role for women. For instance, the custom and traditions of some communities which do not permit women to be natural rulers or family heads. The import is that those communities stand to be condemned without a hearing for such fundamental custom and tradition they practice by the system by which they run their native communities.”
However, the Apex court upheld the decision of the court of appeal as it is evident from the facts of the case that the kola tenancy was the applicable principle of law in this case, and that the Court of Appeal need not have considered the repugnancy of Oli-ekpe in order to give judgment in this case. It wasn’t necessary for the Penultimate court to introduce the validity test and generalize it.
The supreme court concluded that the Court of Appeal erred in holding that the Oli-ekpe custom is repugnant to natural justice. However, the Respondent and her family were entitled to the property under the Kola tenancy.
My Opinion
It is laudable that the Supreme court did not over turn the decision of the court of appeal as it did not amount to miscarriage of justice. Therefore, it remains a very important and potent case law.
Consequently, women rights activists and widows who are excluded from inheriting their deceased husband’s property solely because they are women can ask the courts to determine whether their human right to be free from discrimination on the ground of sex is violated as a result. That is to say, based on their fundamental human right not on the validity of such custom.
Moreover, as pointed out by the Supreme Court, a custom cannot be said to be repugnant to natural justice, equity and good conscience just because it is inconsistent with an English law or some principle of individual right, there must be a careful scrutiny and deliberation of all the circumstances before declaring a custom repugnant.
Subjecting customs to validity test at any slight instance will only make it far-reaching and capable of causing strong feelings against all customs which fail to recognize a role for women. Hence, there must be proper scrutiny and checks before any pronouncement is made.
Customary laws are good for many reasons, one of such reasons is its flexibility and simplicity. The law is instinctually understandable to the people.
Even though some customs are viewed as repugnant, the fact remains that, intrinsically, the law still remains civil in the minds and relationships of the local people; activities such as marriages, land tenure, commercial transactions are still largely regulated by the native law and customs among the people[3].
It can be said remorselessly, that not all customs that fail to recognize women are repugnant. Most of these customs are innate and embedded in the African culture for cogent reasons.
Lastly, the criticism by the apex court of the Court of Appeal is a reminder to all courts in general to stick to matters brought before it by the parties. The courts should not bring matters that are not pleaded by parties and are unnecessary to the issue at hand. It is the law that parties are bound by their pleadings and that matters not pleaded will go to no issue; this is further buttressed by the humorous and witty rule, that the court is not a “father christmas”.
The expression that “the Court is not a father christmas” is an aphorism that has not only achieved judicial notoriety and endorsement but has arguably attained the normative status of law for the guidance of judicial proceedings[4] The court is a creation of the law[5] where disputes are adjudicated upon, and justice is administered according to law.
It only assumes jurisdiction over matters properly submitted before it, usually through pleadings and as a matter of rule and practice, it will generally not make an order or grant a relief that was not requested by any party. This is essentially the “the father christmas rule” simpliciter.
This rule encourages neutrality on the judge’s part which is necessary for fair hearing[6] and vigilance by the parties and their counsel.
Conclusively, it is worthy of mention that the apex court’s dictum is a correction of the of the error by the Court of Appeal, not a pronouncement on the repugnancy or otherwise of the Oli ekpe custom or the approval of the right of primogeniture[7].
The rule that the court and parties are bound by their pleadings is still a standing rule and the fact remains that the Supreme Court, just as the Court of Appeal, can not make a pronouncement on the repugnance or otherwise of the custom (because it is not before the court) and it never was, else it would have also fallen into the same error of the lower court.
Reference
[1] Prostitution or commercial sex workers
[2] Ransome Kuti vs. A.G of the Federation (1985) 2 NWLR (Pt. 6) 211
[3] Adedeji, Okemuyiwa Akeem, Native Law and Customs in a Democratic Setting: (The Nigeria Experience) (July 9, 2012). Available at SSRN: https://ssrn.com/abstract=2102829 or http://dx.doi.org/10.2139/ssrn.2102829
[4] Victor Obinna Chukwuma, The Court is Not a Father Christmas: A Thematic Explanation (December 21, 2023). Available at BarristerNg: https://barristerng.com/the-court-is-not-a-father-christmas-a-thematic-explanation/
[5] See Section 6 of the 1999 Constitution of the Federal Republic of Nigeria (As Altered)
[6] See Umukoro Usikaro and Ors. V. Itsekiri Communal Land Trustees and Ors [1991] 12 SCNJ 75, 91
[7] HW Emmanuel J. Samaila, Did the Supreme Court approve the Oli-ekpe Custom in Mojekwu
- Iwuchukwu? (2023)
About the Author
Bwala Stephen Amos is a penultimate law student at the prestigious Ahmadu Bello University, Zaria. He is an enthusiastic reader, researcher and legal writer. His interest in the legal sphere includes (but not limited to), Corporate law, Arbitration and Tech law.
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