Compulaw - 1st Indigenous Digital Law Library

Brief

Onitsha Customary law
Onitsha Customary law on inheritance
Wills
Concurrent finding of fact by two lower courts

Facts

This is an appeal against the judgment of the Court of Appeal, Enugu Division, hereinafter called the Court below, delivered on the 24th day of January, 2008 on the judgment of the High Court of Onitsha, hereinafter referred to as the trial Court, earlier given on the 15th December, 2005.

The appellants herein who had commenced an action as plaintiffs by a writ of summons sometime in May, 2003 subsequently followed it up with a statement of claim filed on 6th February, 2004. They had claimed severally against the defendant including,

a
A declaration that under the Will of Michael Amanchukwu Atuanya (deceased) the plaintiffs inclusive of the Estate of Late Michael Nwabufo Atuanya (represented by his Executors, Victor Olisa Oranye and Nnabuenyi Edmund I.B. Asika and Fidelis Atuanya (represented by the defendant) are the beneficiaries in equal shares of the property No. 25 New American Road, Onitsha.
b
An order directing the partitioning of No. 25 New American Road, Onitsha into six nearly equal parts,
c
An order compelling the beneficiaries aforementioned to make their choices as to which portions they want as per prayer (b) above.
d
An order directing that a document indicating the various choices as per prayers (b) and (c) and signed by the parties, be filed in court and that it should form a part of the judgment in this suit.
e
Perpetual injunction restraining the plaintiffs, the defendant and the Estate of Late Michael Nwabufo Atuanya, their agents, privies, assigns and workmen or anyone whomsoever acting on their behalf from in any way or manner whatsoever trespassing into, or attempting to trespass into each other's respective choices as indicated in the document filed as per prayer "d".

Pleadings were filed and exchanged.

After the trial, the Court found, as proved inter-alia, that under Onitsha Customary Law, women and that includes the female children of a deceased person cannot inherit their father's land which is in the inland town. It is only male children that can inherit such land. Where the deceased has no surviving male child, the closest male relation inherits the land to the exclusion of the deceased female children. The trial Court also found that the reasons for the above discrimination, so to speak, include, the fact that the land belonged to the family whilst the family members are mere allotees of such land. Hence, such land cannot be inherited by women as the land may end up being inherited by non members of the family upon marriage by the female members of the family.

However, evidence revealed that the land in dispute is not located within the inland town and it was agreed by the parties that a different consideration apply. The trial court found and accepted it as true, and correct Onitsha Customary law on inheritance, that where the land is situate outside the inland town, the testator can device it under his Will to all or any of his children, irrespective of gender.

In the final analysis, the trial court, after reviewing the totality of the evidence adduced by both parties, inter-alia, came to the following conclusions -

“It is my view that on a calm reading of the Will - Exhibit P1, it is clear that other than the property, at Awka Road, all the testator's possession including the property in dispute were divided to all his children in equal shares. I therefore hold that the plaintiffs are beneficiaries of the property at No. 25 New American Road, Onitsha, jointly with their deceased brothers as represented by their estates.

………………………………………………………………………………………………………………………………………………………………………………………………………………………………………… As much as I am convinced that the property ought to be partitioned in the interest of peace, I am of the view that the proposed mode will not achieve peace and justice. In the circumstances, the claim for partitioning of the estate as proposed by the plaintiffs as well as the other reliefs consequent thereon are hereby struck out."

The appellants' case was adjudged to have succeeded in part which led the appellants to appeal to the Court below on the portion of the judgment of the trial Court which refused prayers 27(b),(c)(d) and (e) of their Statement of Claim.

The Court below found "Exhibit P7 lopsided and tilting very much in favour of the appellants and therefore discountenanced it.” And held that the disputed property be partitioned and shared equally in accordance with the Will of the testator - Exhibit P1. The respondent is to stand and claim in the position of his father through whom he derives his beneficial interest. The appeal was allowed.

Asika V. Atuanya (2013) CLR 7(e) (SC)

Judgement delivered on July 5th 2013

Brief

Facts

Issues