Augustine Nwafor Mojekwu v. Mrs. Theresa Iwuchukwu (2004)



Augustine Nwafor Mojekwu v. Mrs. Theresa Iwuchukwu (2004) – SC

by PaulPipar


Augustine Nwafor Mojekwu


Mrs. Theresa Iwuchukwu (By substitution for Caroline Mgbafor O. Mojekwu deceased)


(2004) LPELR-SC.11/2000;
(2004) NWLR (Pt. 883) 196 2;
(2004) 18 NSCQR 184;


Supreme Court


Uwaifo, J.S.C.



  • Philip Umeadi, Esq


  • Dr. Ikpeazu


This is an appeal from a decision of the Court of Appeal, Enugu Division given on 10 April, 1997. It touches on the peculiar system of kola tenancy in Ibo land.

In this particular case, it is what is known as the Mgbelekeke family kola tenancy system of Onitsha.

The plaintiff, now appellant, brought an action in June, 1983 in the High Court of Onitsha Judicial Division in respect of property subject of the said kola tenancy against Mrs. Caroline Mgbafor Mojekwu (who having died, has now been substituted in this appeal by Mrs. Theresa Iwuchukwu) claiming 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, Onitsha in accordance with Nnewi Native Law and Custom;
(a)(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.

The case presented by the plaintiff is that his only uncle Okechukwu Mojekwu acquired a parcel of land from the Mgbelekeke family of Onitsha under their kola tenancy and built a house on it which is known as No. 61 Venn Road, South, Onitsha. The man died in 1944 and was survived by two daughters and a son called Patrick Adina Okechukwu Mojekwu (hereinafter referred to as Patrick). He said his own father, the only brother of Okechukwu Mojekwu, died in 1963 while Patrick, the only son of his said uncle, died during the Nigerian civil war without any child. He claimed that by virtue of Nnewi native law and custom, he has succeeded to the estate of his late uncle, Okechukwu Mojekwu, and is now the head of the Mojekwu family.

The defendant (Caroline) on the other hand had claimed that the property in question had passed to late Patrick – the only son of Okechukwu Mojekwu and that later, it passed to Patrick Chukwuemeka Okechukwu (hereinafter referred to as Emeka), the alleged infant son of Patrick.

Available:  Bamaiyi V. The State (SC 292/2000, Supreme Court, 6th April 2001)

She claimed that when the house built by her husband went into ruins during the Nigerian Civil War, she rebuilt it, without any reference to the plaintiff, with her own money. She said that the plaintiff misrepresented facts to the Mgbelekeke family to recognise him as the person entitled to continue the kola tenancy. It was averred “that recognition of the plaintiff, a stranger, under the facts and circumstances of this case and where the male and female issues of the deceased kola tenant are living, is contrary to the Onitsha customary kola tenancy system of devolution of property on death.”


  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.



  1. For issue 1, the Supreme Court gave judgement in favour of the Appellant, stating that it was wrong for the Court of Appeal to declare the Nnewi custom that discriminates against women as contrary to natural justice, equity and good conscience. It went ahead to state, “But I disagree with learned counsel for the appellant that the pronouncement led to a miscarriage of justice. It had nothing to do with the merit of the case.”


i. A binding judicial declaration or pronouncement must derive from relevant established principles of the rule of law. There must be a cause upon which such a declaration or pronouncement is founded. There ought to be a relief tied to that cause which must be reasonably necessary or relevant for reaching a decision in the cause.

ii. First, the issue that ‘oli-ekpe’ in question was repugnant was not joined by the parties.
Second, the court below having felt strongly about its repugnancy, as can be seen from the emotive and highly homilized pronouncement, was obliged to draw the attention of the parties to it, raise it suo motu and invite them to address the court on the point.
Third, the court below itself had reached a conclusion that the applicable custom was that of the kola tenancy of the lex situs. This was said twice in the leading judgment, as recorded: once before the pronouncement in question and once after. The pronouncement which was not necessary for deciding the suit can thus be assessed upon the scenario in which it was made.
Fourth, 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 recognise a role for women. For instance, the custom and tradition 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 practise by the system by which they run their native communities. It would appear, for these reasons, that the underlying crusade in that pronouncement went too far to stir up a real hornet’s nest even if it had been made upon an issue joined by the parties, or properly raised and argued.

  1. On issue 2, the Supreme Court held, “I agree with the court below that by witnessing exhibit 1 in ignorance of their entitlement under the lex situs, the said two daughters of Okechukwu Mojekwu did not thereby validate the appellant’s claim to the Mgbelekeke kola tenancy in question.”
Available:  Fortune International Bank Plc v. Pegasus Trading Office (GMBH) (2004)


i. To be able to so contend that the said women are bound by exhibit 1 because they signed as witnesses, the appellant would have had to rely on waiver. But he did not dare to do so since (1) it would contradict his reliance on Nnewi custom and (2) it would impliedly implicate him that he misrepresented the true facts and circumstances to the said women. It is, therefore, a patently misconceived argument, which learned counsel for the appellant has raised, that: “There is nothing to the contrary to show that when the two daughters of Okechukwu Mojekwu took or accompanied the plaintiff/appellant to the Mgbelekeke family for him to be recognised as their kola tenant that they did not know what they were doing.”
This cannot arise at all once it is established that their minds were not directed to the applicable custom, namely the lex situs, “it was clear to them that their only brother, Patrick, had died without a surviving issue and that the appellant was the rightful person to be recognised as the new kola tenant,” would be evidence of non-disclosure bordering on fraud as pleaded in para. 22(a) of the amended statement of defence. This is an argument that may only be proffered in reliance on the Nnewi custom pleaded by the appellant.

  1. On issue 3, the Supreme Court held in favour of the appellant. It stated that from the evidence available that Patrick did not bore any son called Emeka.


i. One James Okoronkwo, now dead, had testified before Onwuamaegbu, J. that Patrick who was in the Biafran Army died during the war on 25 August, 1969 at Ikot Ekpene sector and was buried at the Military cemetery, Nnewi. James Okoronkwo said he was his batsman and witnessed the burial. This was evidence of an eye-witness. Unfortunately the matter of Patrick, as stated by the respondent right from the trial, sounds like a fairy story. One Mrs. Esther Okakpu testified for the defendant as D.W.1. She claimed that Patrick had a son called Emeka who was born on 26 August, 1973. But she also said that she saw Patrick last in 1970. How did this happen? It appears from her evidence it would be a chance meeting because she said when she met him, “he told me he was going to collect his things. That was the last time I saw him.” Is this really credible? How did this witness then know that Patrick had a child in 1973? She did not say in her evidence. At the time this witness testified on 6 November, 1992 and 23 April, 1993, she maintained that Patrick had not died. That was some 22 years after the Nigeria Civil War. Why did she maintain that Patrick was still alive? Where was he still? How could anyone continue to maintain that he was alive?

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ii. It is my view, that the findings made by the learned trial Judge are based on fatuous evidence and very disturbing assumptions in preference to the direct evidence of a witness who was with Patrick in the war front as his batsman.

iii. The woman (D.W.1) who said she saw Patrick in 1970 did not indicate where this took place and whether she was the only one who saw him. She said he told her he was going to “take his things” and that was the last time she saw him. How does a Court of law give credence to this evidence as the learned trial Judge seemed to have done.

  1. For issue 4, the Supreme Court held, “As regards issue 4, the two questions asked therein are immaterial since, in any event, the appellant is disentitled in the circumstances of this case from inheriting the kola tenancy in question.”




Now, the first thing to note is that the property at No. 61 Venn Road, South, Onitsha is under the Mgbelekeke family kola tenancy. This is the property the appellant claims he is entitled to. He bases this claim on the assertion that Okechukwu Mojekwu, his uncle, died without a male child. The entire tenor of that assertion is founded on Nnewi native law and custom of succession. – Uwaifo, JSC. Augustine Nwafor Mojekwu v. Mrs. Theresa Iwuchukwu (2004)

This court has warned in several decisions against the practice by courts in raising a point suo motu and deciding on it without inviting parties to address it on the matter. – MOHAMMED, JSC. Augustine Nwafor Mojekwu v. Mrs. Theresa Iwuchukwu (2004)




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