Okonkwo Timothy (Alias Job) V. Sunday Oforka & Anor. (2007)
LawGlobal-Hub Lead Judgment Report
DENTON-WEST, J.C.A.
At the Nnewi High Court the plaintiffs now the respondents claimed against the defendant now the appellants:
“(a) A declaration that the respondent/appellant have violated the appellants’ fundamental rights to dignity of human person, personal liberty, freedom from discrimination and acquisition and ownership of immovable property as guaranteed by Ss.34, 35, 42 and 43 of the Constitution of the Federal Republic of Nigeria, 1999.
(b) N500,000.00 (Five hundred thousand Naira) jointly and severally against the respondents in favour of the applications for the violation of their fundamental rights.
(c) An injunction restraining the respondent, their servants, agents and or privies from harassing, disturbing, obstructing or however violating the applicant’s fundamental rights.”
The appellant filed a counter-affidavit. At the conclusion, the learned trial Judge in his ruling decided in favour of the plaintiffs/respondents.
Dissatisfied with the decision, the appellant appealed against same. The appellant in accordance with the rules of this court filed his brief and adopted same.
The respondents did not file any brief of argument. By motion on notice filed on the 8th day of November, 2006, the appellant prayed this court that the appellant be heard only on the appellant’s brief of argument dated 8th day of December, 2003 and filed on the 5th day of February, 2004.
The above motion was granted by this court on the 15th day of November, 2006.
The learned counsel for the appellant, G.O. Onyenwife, formulated two issues for determination as follows:
“(1) Whether the learned trial Judge was right to have relied on exhibit A for proof of title by the applicants of the land from which the application is based notwithstanding the provisions of sections 2 and 15 of the Land Instrument Registration Law of Anambra State.
(2) Whether the learned trial Judge was right in his ruling/judgment.
Issue 1:
The learned counsel to the appellant contends that the learned trial Judge relied on exhibit A in his judgment as a document of grant. He refers this court to sections 2 and 15 of the Land Instrument Registration Law, Cap. 72, Laws of Eastern Nigeria, 1963 applicable to Anambra State. He further submits that exhibit A (the land which Ezenwammadu Okafor Oforka granted to the applicants is not a Will as the grantor is still alive, and being not a Will, he contends that it is mandatory that the land should be registered.
The learned counsel further argued that exhibit A on which the applicants relied on for claim on the breach of their fundamental rights is an instrument under the meaning of an instrument in S.2 of the Land Instrument Registration Law (supra) and failure to register the instrument render it inadmissible and cannot be relied upon to prove title to land. Refers this court to Agbodike v. Onyekaba (2001) 10 NWLR (Pt.722) 576 at 587.
Issue 2:
The learned counsel contends that the weight of evidence is in favour of the 3rd respondent/appellant because some of the averments in his counter-affidavit was to show that the land in dispute from which the alleged violation of applicants’ rights arose was a subject of litigation in Ozubulu Customary Court in suit No. CC02/13/98 and that the applicant’s father Chief Ezenwammadu Okafor Oforka the grantor of the land had testified in favour of the appellant as the owner of the land.
The averment he contends were not controverted and he submits that failure of the applicants to deny or rebut the averments in the aforementioned affidavit amounts to admission of those facts. Refers this court to the case of Egbuna v. Egbuna (1989) 2 NWLR (Pt.106) 773 at 774.
The learned counsel also submits that since the applicants’ grandfather has admitted that the land belongs to the appellant in his evidence, he cannot give what is not his own to another.
The learned counsel in his brief urged this court to allow the appeal and set aside the ruling of the court below and dismiss the application of the applicants/respondents. However, on the day the appeal came up for hearing that is 20th day of February, 2007, it was the appellant personally that was in court as no counsel was present on either side. The Registrar, of court informed the court that the respondent has been duly served and that they have not been coming to court.
The appellant said that even though his counsel is not in court, he would wish to adopt his brief and accordingly urged the court to allow the appeal, which was then set down for judgment. There is no brief filed by the respondent in this appeal, in the determination of the two issues raised in the brief filed by the appellant, and accordingly, I intend adopting this procedure. In issue 1, the contention was whether the learned Judge was right to have relied on exhibit A for proof of title by the applicant of the land from which the application is based notwithstanding the provisions of sections 2 & 15 of the Land Instrument Registration Law of Anambra State. Shun of all embellishments, this issue simply put is questioning the validity of the court placed reliance and acted to devolve or declare the respondents as the title owner of the property referred to in exhibit A. What does exhibit A impliedly seek to achieve in this action? Is it a will, an instrument in land or a mere document or instrument in land. Because of the importance attached to exhibit A, in the determination of the action in the lower court, I shall endeavour to reproduce same, which is accordingly hereby reproduced.
“Exhibit ‘A’
The land I Ezenwanmmadu Okafor Oforka save to my daughter St. Martina Oforka and her brother, Sunday Oforka 14/4/99.
I Chief Ezenwanmmadu Okafor Oforka of Uruezike in Urudunu Ifite Orafite, I in appreciation of the caring attention of St. Martina Oforka, give this piece of land to your St. Martina Oforka and your brother Sunday.
Your attitude is a big consolation to me at my old age. I know that when I pass away, your half brothers and other enemies will try to eject you from this land, so I am now going to describe the place for you to write down and that I may append my thumbprint on it, on this Afor day the 14th of April, 1999 with Rev. Father Benjamin Udeh as my witness. You can protect and develop it as you wish. The land in question is from James Oforka’s gate facing the road, the left side of it, from the fence to the gully, then to my Agwu shrine (Okwuagwu), following the line up of palm trees, crossing the path that leads to Mr. James house, up to where you have the breadfruit tree and that of bitter kola standing together (Ebe Ukwu Ukwa na Ukwu Ugoro Kwukotara Onu), then crossing the road to Ichito the small bitter kola tree just close to the road, down to the gully. The road to Ichi becomes the natural boundary. This leads to “ukwu Echichili” located behind a bitter kola tree and this “echichili marks Sr. Martina’s boundary with Mr. Innocent Oforka inside the compound. It then follows the wall of my house to my “Obi” through the hedges to Mr. James main gate where we started.
From the gully in front of James’ gate facing the main road, up till the place where the breadfruit tree and bitter kola tree stand together, the right wing belongs to Okonkwo the fore-father of Job. They got that land when one Uruezeaka man who came to marry a daughter of Okonkwo called Nwanyiabia used the land to pay her dowry. I have lived here for over 80 years and I have never had any dispute with anybody concerning this place. I bought the land from Mr. Albert Ubabuko of Uruezeakwa with Chief Utojiuba Ezeneche as my witness. I paid for everything and fully killed a goat to seal it up. I do not even pay Iruani here so do not be afraid to possess it. I gave it to you and impart my paternal blessing on you.
(Sgd) (RHI)
Rev. Fr. Benjamin Udeh Ezenwanmmadu Okafor
(14/4/99) (14/4/99)”
I have read the authorities relied on by counsel in arguing his brief and I seek to relate the arguments and authorities to the ruling of the lower court specifically on pages 59 – 63 especially from pages 63 – 64 paragraphs 15-30 and on page 64 paragraphs 1 – 25. I am constrained to agree with the trial Judge that by virtue of the provisions of the constitution, the custom of the Oraifite as regards devolution of land under the native law and custom of the Oraifite native law and custom should not act as a bar that shall deprive or forbid women and children from dealing in land. The authority relied on by the appellant in his brief does not in any way support his contention and they are anti the constitutional provisions contained in sections 42 and 43 of the Constitution of the Federal Republic of Nigeria.
The decision of the lower court should be commended as a proactive decision since it acts as a step in upholding the constitutional rights of the individual in owning and disposing of land in accordance with the ground norm. No law or custom that stands in the way of our Constitution should be allowed to stand tall no matter the circumstance. Indeed the trial court did not mince words when he upheld exhibit A and held inter alia, that:
“The third respondent in paragraph 9 of his counter-affidavit admitted that Chief Ezenwammadu granted the land to the 2nd applicant and that she had built upon the land inside her father’s compound. Chief Ezenwammadu knows his compound. The 3rd respondent went on further to aver that Chief Ezenwammadu by granting the land has breached the Oraifite native law and custom which forbids women and children from dealing with land. A custom cannot derogate from the clear provisions of the Nigerian Constitution dealing with right to own movable and immovable properties. Women can own landed properties and children too, though in the case of children the next of kin acts for them. The 3rd respondent did not challenge that Chief Ezenwammadu bought the land he gave to his grand children (the applicants) from Mr. Albert Ubabuko before his witness, Chief Utojiuba Ezeneche. The 3rd respondent has not really challenged the claim of the applicants that they are entitled to own land in accordance with the provisions of the 1999 Constitution regardless of their sex or age and that they must not be discriminated against or molested. What the 3rd respondent has done is to challenge the applicant’s right to own land under Oraifite native law and custom as women and children do not own land under that custom. What about the rights to own land under the Constitution?”
See the case of Mojekwu v. Mojekwu (1997) 7 NWLR (Pt.512) p. 283 at 304-305, where this court in construing the effect and usefulness of an unregistered instrument held inter alia that:
“Generally by virtue of the Land Instrument Registration Law, an instrument affecting land shall not be pleaded or given in evidence unless it has been registered. However, a registrable instrument which has not been registered is admissible to prove an equitable interest and to prove payment of purchase money or rent (Savage v. Sarrough (1937) 13 NLR 141; Ogunbambi v. Abowab (1951) 13 WACA 222; Fakoya v. St. Paul’s Church, Shagamu (1966) 1 All NLR 74; (1966) SCNLR 189; Oni v. Arimoro (1973) 3 SC 163; Bucknor-Maclean v. Inlaks Ltd. (1980) 8 -11 SC I referred to (p.302 para A – B).”
The essence of issue one is to state that exhibit A not being a will should not be countenanced, as the grantor of the land is still alive. Again exhibit A is not a land instrument, as it does not conform to the provisions of sections 2 and 15 of the Land Instrument Registration Law of Anambra State.
Granted that exhibit A is an Instrument in Land which does not conform to the Land Instrument Registration Law of Anambra State; nevertheless there is no alternative document tendered by the appellant to show contrary ownership.
Exhibit A might not have been properly crafted nor conform to elegant way of devolving of landed property by way of instruments, but nevertheless the purport of exhibit A is quite clear and unless and until a more direct and appropriate instrument on land in respect of the same property defined in exhibit A, is shown to exist I hereby resolve that the learned trial Judge was right to have relied on exhibit A for proof of title by the applicants of the land from which the application is based notwithstanding the provisions of sections 2 and 15 of the Land Instrument Registration of Anambra State which states:
“2. A document affecting land in Eastern Nigeria, whereby one party (hereinafter called the grantor) confers, transfers, limits, charges or extinguishes in favour of another party (hereinafter called the grantee) any right or title to or interest in land in Eastern Nigeria a Certificate of Purchase and a Power of Attorney under which any instrument may be executed but not a will. 15. No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered.”
Without much ado in this appeal, the contention on imaginary scale between the parties is as to whom is entitled between the appellants and the respondents to the land mentioned in exhibit A. It is clear from the submissions made in the appellants brief of argument precisely in paragraph 3.20, that after all arguments and submissions, by appellants counsel as regards the ownership of the land from which the alleged breach of the fundamental rights of the applicants/respondents arose, it was submitted that the land belonged to the appellant basing their argument on a flimsy fact that the father of the applicant/respondent had testified in a suit in the customary court that the land to the 3rd respondent/appellant in suit MN/30/90 and CC02/13/98 and that if that was the position, then he cannot give what is not his own to another, and cited the authorities of Tewogbade v. Obadina (1994) 4 NWLR (Pt.338) 326; Udi v. Idemudia (1998) 4 NWLR (Pt.545) 231.
These cases do not avail the appellant and neither do mere testimony in court without more automatically transfer ownership of land in favour of whomsoever the witness had testified. This does not also conform to the provisions of sections 2 & 15, Cap. 72, Law of Eastern Nigeria as applicable in Anambra State. In like matter, perhaps there ought to be a court declaration to this piece of evidence and there is none before the lower court as evidence in the record of proceedings. Exhibit A even though not registered could be admitted by the lower court, for equity regards as done that which ought to be done.
Exhibit A is not registered as submitted by appellant, in my view, the learned trial Judge was right to have relied on exhibit A for proof of title by the appellant, upon which their application was based. Notwithstanding the provisions of sections 2 & 15 of the Land Instrument Registration Law of Anambra State which if strictly adhered to in the circumstances of this matter shall be in serious violation of the provision of sections 42 and 43 of the Constitution of the Republic of Nigeria:
42(1) A citizen of Nigeria of a pal1icular 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 this birth.
(3) Nothing in subsection (1) of this section shall invalidate any law by reason only that the law imposes restriction with respect to the appointment of any person to any office under the State or as a member of the armed forces of the Federation or a member of the Nigeria Police Force or to an office in the service of a body corporate established directly by any law in force in Nigeria.
- Subject to the provisions of this Constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.”
The respondents had recourse to these constitutional provisions via their application in the lower court and any act or even law which is anti the intent of the law maker especially as it relates to the Constitution of the Federal Republic of Nigeria and violates same shall not be upheld by a court. Consequently, I am obliged to resolve issue 1 in favour of the respondents.
Similarly, issue two has been adequately dealt with during my consideration of issue one. However, I will want to emphasize here that the learned trial Judge was not only right in his ruling/judgment, but he adequately took the bull by the horn and upheld the Constitution and was able to declare that a native law and custom that was repugnant to natural justice wherein some citizens of this country Nigeria, are discriminated against on account of their place of origin, sex, religion and or political opinion to hold property when such property was indeed also given by a grandfather to his daughter and son, as per exhibit A if not upheld is repugnant. On issue of repugnancy and discrimination of women’s right to inheritance under the Nnewi Customary Law, Niki Tobi, JCA as he then was in serious condemnation of the Oli-ekpe tradition had this to say: “The appellant claims to be that “Oli-ekpe”. Is such a custom consistent with equity and fairplay in an egalitarian society such as ours where the civilized sociology does not discriminate against women? Day after day, month after month and year after year, we hear of and read about customs, which discriminate against the womenfolk in this country. They are regarded as inferior to the menfolk. Why should it be so? All human beings – male and female are born into a free world and are expected to participate freely, without any inhibition on grounds of sex; and that is constitutional. Any form of societal discrimination on grounds of sex, apart from being unconstitutional, is antithesis to a society built on the tenets of democracy, which we have freely chosen as a people … On my part I have no difficulty in holding that “Oli-ekpe custom of Nnewi, is repugnant to natural justice, equity and good conscience …. ”
I too have no difficulty in holding that the Oraifite native law and custom which does not allow women to deal in land is not only unconstitutional but repugnant to natural justice, equity and good conscience. Therefore, issue two is also resolved in favour of the respondents.
In the final analysis, I am constrained to uphold the ruling of the learned trial Judge Hon. Justice M.A. Onyiuke dated the 24/5/01 and thus dismiss the appeal as lacking in merit and grant the prayers as contained in the ruling. In the circumstances of this appeal, there is no order as to costs.
Other Citations: (2007)LCN/2347(CA)
