Etim Harry Ukata & Ors V. Pastor Ime Dick Akpanowo & Ors (2001)
LawGlobal-Hub Lead Judgment Report
PATS-ACHOLONU, J.C.A.
This is an appeal from the Customary Court of Appeal of Imo State, which sat on appeal on a judgment of the Customary Court at Okigwe.
The respondent as plaintiff, has sued the appellants in the Customary Court below over a piece of land; on Ikponkwo land, which he stated he inherited from his father who had farmed on it, and planted economic trees on that land, without any form of interruption. He stated that the defendants/appellants are boundary neighbours, same as others and complained that the defendants had of recent, made an ingress into that land hence, this action in court. He said that his father was unable to institute the action over this land because of his ill health. To a question, that the land case has been settled he denied it. He was supported in his evidence by his father, who equally testified that his own father farmed on the land and lived up to 100 years of age, before he died. PW2; the father of the plaintiff had said that, the land in dispute is his share of his father’s land. It was also in evidence that the land where the defendants/appellants were living, was given to them by one OKORIE OBIOHA, a kinsman of the plaintiff/respondent. This was corroborated by PW4; Nwafor Nwanjo.
The defendants’ case is that the land belongs to Alajemba himself, stating that some men from his family, had lived and died in that land. During the cross-examination, he stated that the plaintiff had once taken them to the Igwekala Juju, over this land and was warned to steer clear of the land. On the question by that court that if he said he planted the palm trees, and cashew trees, why then did he cut them? He answered that, he merely pruned them. His evidence of ownership and how the land devolved to the defendant, was corroborated by the 2nd defendant, who stated that the land was given to the 1st defendant and one Okereke by Obioha in her presence, but they had to throw his son Okori, out because he brought the plaintiff into that land. DW3; Mgbememe Duru, said that he is a boundary man to the 2nd defendant. His evidence did not, for once refer to the 1st defendant, who said that the land is his own.
The court visited the locus in quo, and came to the conclusion, that the stream referred to in evidence, looks like the natural boundary, between the two warring parties of Ubaha and Akawa. The court, after reviewing the evidence of the parties, gave judgment to the plaintiff. The defendants appealed to the Customary Court of Appeal. The Customary Court of Appeal, diligently x-rayed the evidence in the proceedings in the court below and carefully synthesized all the issues and after the appraisal and evaluation of the judgment of the Customary Court, eventually came to the following conclusion:
“I have not seen any evidence on record of the proceedings before me of ownership by the defendants/appellants to oust the possessory title of the family of the plaintiff. It is not the function of the appellate court to disturb the findings of fact of the trial (court), unless such findings are shown to be unreasonable or perverse and not a result of proper exercise of judicial discretion.”
It confirmed the judgment of the court of the first instance.
Aggrieved by the judgment the defendants appealed to this court by filing 4 grounds of appeal, from which they in-elegantly and I must add too, astonishingly framed 14 issues for determination. The respondent framed 3 issues for determination and they are as follows:
- “Whether there is enough evidence given by the plaintiff to justify the finding of the Customary Court Okigwe and supported by Customary Court of Appeal Owerri, lmo State?
- Whether the defendant was misled or prejudiced by the fact that plaintiff/respondent sued for a piece and parcel of land called Ikpa Nkwo, which is stituated in an area called, lkpa Nkwo Chukwu, Nneato. The cradle of Nneato.
- Whether a woman married or widow, can be sued for trespass committed by the woman?”
I must confess quite candidly, that it is patently difficult to make out a head or tail of the appellants’ case. There is utter confusion. The three qualities or characteristics of issues contained in a brief, are clarity, brevity and precision.
It is quite obvious that the learned Counsel for the appellant, does not quite appreciate or know how to frame issues. I have, therefore to go through the maze or labyrinth of the confusion laden issue and brief to know what the appellants are talking about. They argue, that by Nneato Nnewi Custom, a woman cannot give evidence in relation to title to land. This assertion or argument is oblivious of the Constitutional provision, which guarantees equal rights and protection under the law. The rights of all sexes are protected under the organic law of the land. I refer to section 39(1) of the 1979 Nigerian Constitution, which states as follows:
“39(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person,
(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religion, or political opinions are not made subject; or
(b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions, or political opinions.
(2) No citizen of Nigeria shall be subjected to any disability or deprivation, merely by reason of the circumstances of his birth.”
This same provision is now repeated in section 41(1) of the 1999 Constitution. Any customary law, which flies against decency and is not consonant with notions, beliefs or practice of what is acceptable in a court, where the rule of law is the order of the day, should not find its way in our jurisprudence and should be disregarded, discarded and dismissed as amounting to nothing.
Any law(s) or custom that seek to relegate women to the status of a second class citizen, thus, depriving them of their invaluable and constitutionally guaranteed rights, are laws and customs fit for the garbage and consigned to history.
Let us consider the case of Mojekwu v. Mojekwu (1997) 7 NWLR (pt.512) 283. In that case, one of the issues before the Enugu Division of the Court of Appeal, is the incidence of “Oli-Ekpe” Custom of Nnewi, by which a surviving brother of a deceased, is by custom allowed, to inherit property of the late deceased brother, because the surviving wife has no son. Niki Tobi, JCA had this to say:-
“We need not to travel all the way to Beijing to know that some of our customs including the Nnewi “Oli Ekpe customs” relied upon by the appellant, are not consistent with our civilised world, in which we all live today, including the appellant. In my humble view, it is the monopoly of God to determine the sex of a baby and not the parents. Although the scientific world disagrees with this divine truth, I believe that God, the Creator of human being, is also the final authority, on who should be male and female. Accordingly, for a custom or customary law to discriminate against a particular sex, is to say the least, an affront on the Almighty God himself. Let nobody do such a thing. 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,”
It is apostasy to say that a woman cannot be sued or cannot be called, to give evidence in relation to land subject to customary rights of occupancy. I reject that argument in its entirety. A custom which strives to deprive a woman of constitutionally guaranteed rights is otiose and offends the provisions that guarantees equal protection under the law. It seems that the appellant has really nothing to add in that area. It is no issue at all. It offends all decent norms as applicable in a civilised society.
The real issue in this case, is whose story attracted more credence in the lower courts. A careful appraisal by the Customary Court of Appeal of the judgment and the proceedings of the lower court, impressed upon it that there was nothing that could change the “verdict” of the Customary Court in its findings. Let me here, recapitulate the judgment of the court of first instance:
“The present boundary of both Akawa and Ubaha is open and both parties accepted this fact in court and at the locus. The first defendant mentioned Miri-Nnimaka, as another boundary, but the court did not see Nmiri Nnimaka. The court only stopped at Nkwo Chukwu Nneato. Under normal Igbo Custom, and in relation to land, women do not trace community or kindred land boundaries as long as there are yet men in that family. If Alajemba is old, there are yet able bodied adults and custodians of their father’s Ofo, who would have done that. His claims and counter-claims of almost every corner of Nkwo Chukwu, is doubtful. Although she later accepted the original boundary, second defendant had denied in court that she had no male issues, but she has adult male children who would have let (sic) the court. We also accept that the plaintiff had occupied the land for more than a century and according to custom.
It was inherited from their great grandfathers and can not now be snatched away from them. Okori Obioha, the major actor in this case traced ownership up to his third grandfather, at his present age of over seventy years old. The blood ties that bound Alajemba Uke and Alajiofor Okereke, has nothing to do with the plaintiff’s claim of title; evidence before the court did not include the sale or pledge of land to Obioha Okori and his relations of Awo Ubaha. In the instant case as hammered by the defendants, the transaction, it is believable was not a pledge but a gift carried out for more than one century ago. Legally, and in the other way round, according to present day tenure system in Nigeria, Land Use Decrees section 36, sub-sections 3, 4, 5 and 6, the plaintiff is the owner of the land.”
The appellant’s case was based on an alleged gift of land, while the respondent based his case on devolution of title dating back even to his grandfather. Even the evidence of his star witness is in disarray in that in one breath, she gave the impression that the land belongs to her and Alajemba, and in another breath, she said that the land was solely that of the 1st appellant. Her evidence occasionally gives the impression, that the land belongs to Alajemba and Okereke as well. Her testimony is a tissue of confusion. I shall illustrate this:
“After his death, both sides continued to farm there and my husband even planted some Palm Trees there. There are many widows in that compound, but I sued because the land belongs to my husband. We have not shared it because we use it in common,”
Later she said:
“They saw that Alajemba (1st respondent), is alone in the family and then moved in force to take it away from him… Importantly she had said in the early part of her testimony:
“Whatsoever I will say in court would be as I heard from my late husband.”
However it turns out, that the evidence she preferred, wears the garb of testimony of a parrot. Her evidence lacks depth and substance, which accounts for why the lower courts disregarded its weight and substance. Even if she can give a hearsay evidence, the confusion latent in her testimony renders it valueless. The appellants submit that the lower court rejected admissible evidence of the appellants’ witnesses. A proper evaluation of these testimonies as indicated, shows that the respondent had a better mastery of the history of the land, than the appellants and this was the finding of the court of the first instance, which was confirmed by the lower appellate court. The appellants have sought to make a heavy weather, that PW4 called the land Nkwo Chukwu Nneato, while the respondent called it Ikpan Nkwo. In fact all the 3 witnesses for the respondent called it Ikpan kwo. This obvious discrepancy does not go to the root of the case, because in any case, it is not in issue that the parties do not know the identity of the land in question. The way I see this case, is that the respondent made out a better case than the appellants in the 1st court and obviously in lower appellate court.
In my view, there is no merit in the appeal. It is therefore, dismissed with costs assessed at N4000.00.
Other Citations: (2001)LCN/0931(CA)
