NEZIANYA & ANOR V. OKAGBUE & ORS

• Pages: 277-280

NEZIANYA & ANOR V. OKAGBUE & ORS

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277

NEZIANYA & ANOR V. OKAGBUE & ORS

1.

JULIE NEZIANYA

2.

DAVID AZIKA

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APPELLANTS

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10

1.

ANTHONY OKAGBUE

2.

EGEPU OKAGBUE

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RESPONDENTS

3.

ONUORA OKAGBUE

SUIT NO. FSC 398/1962

15 SUPREME COURT OF NIGERIA

ADEMOLA,

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C.J.N.

TAYLOR,

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J.S.C.

BAIRAMIAN,

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J.S.C.

28th November, 1963.

20

Legislation - Eastern Nigeria - High Court Law, s.22(1).

Native Law and Custom - Eastern Nigeria - Onitsha - Widow occupying property

of deceased husband - Nature of her occupation - Not adverse to husband's

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family.

ISSUE:

1. Does the Onitsha native law arid custom allow a wife to become the owner of

her late husband's landed property to the exclusion of his family.?

30 FACTS:

Upon the death of the husband, his widow began letting out his house and sold

a portion of the land. When she tried to sell more of the land, her husband's fam-

ily objected that she had no right. The widow devised the property to her grand-

children - the issues of her only child, a girl. The grandchildren sued the husband's

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family claiming a right to exclusive possession on the ground that their grand-

mother had had long adverse possession of the land. The matter was governed

by Onitsha native law and custom, under which the trial Judge held that the claim

failed. On appeal the plaintiffs argued that the native law and custom ought not to

be applied as being contrary to equity under s.22(1) of the High court Law, E.N.

40 HELD:

Under the native law and custom of Onitsha, a widow's possession of her de-

ceased husband's property is not that of a stranger, and, however long it is, it is

not adverse to her husband's family and does not make her the owner; she can-

not deal with his property without the consent of his family, which may be actual

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or implied from the circumstances.

OBITER:

If a husband dies without male issue, his real property descends to his family;

his female issue do not inherit it, according to Onitsha custom.

50 CASES REFERRED TO IN JUDGMENT:

1.

Akpan Awo v. Cookey Gam

2

N.L.R. 100.

2.

Suleman and Anor. v. Johnson

13 W.A.C.A. 213.

3.

Fiscian v. Nelson and Anor.

12 W.A.C.A. 21.

4.

Morayo v. Okiade and 4 Others

15 N.L.R. 131.