Uke and Another v Iro (2002) AHRLR 155 (NgCA 2001)
Alajemba Uke and Anna Alajiofor v Albert Iro
Court of Appeal (Port Harcourt Division), 18 January 2001
Judges: Pats-Acholonu JCA, Akpiroroh JCA and Ikongbeh JCA
Previously reported:  11 NWLR 196
Gender discriminatory customary law
Equality, non-discrimination (discrimination on the grounds of sex, 7-11)
[1.] 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.
[2.] 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 had planted trees for economic benefit on it without any objection. He stated that the defendants/appellants are his neighbours, sharing his boundary as do others. He has complained that the defendants had recently laid claim to a part of that land, hence this action in court. He said that his father had been unable to institute the action over this land because of ill health. He denied that the land case had been settled. He was supported in his evidence by his father who also testified that his own father had farmed on the land and had lived to the age of 100 years before he had died. PW2, the father of the plaintiff, said that the land in dispute was his share of his father's land. It was also in evidence that the land on which 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.
[3.] The defendant's case is that the land belongs to Alajemba Uke himself, on the grounds that some seven 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 had been warned to stay away from the land. In regard to the plaintiff's claim to have planted palm and cashew trees on that land, that Court had asked why then he had cut them. He had answered that he had merely pruned them. The defendant's evidence of ownership and how the land had devolved to him was corroborated by the second defendant, who stated that the land had been given to the first defendant and one Okereke by Obioha in her presence. However, they had had to throw his son Okori out because he had brought the plaintiff onto that land. DW3 Mgbememe Duru, said that he was a neighbour to the second defendant. His evidence did not ever refer to the first defendant who claimed that the land was his.
[4.] The Court had visited the locus in quo and had come to the conclusion that the stream referred to in the evidence had looked like the natural boundary between the two warring parties of Ubaha and Akawa. After reviewing the evidence of the parties, the Court had given judgment to the plaintiff. The defendants had appealed to the Customary Court of Appeal. The Customary Court of Appeal diligently examined the evidence of the proceedings in the Court below and carefully took account of all the issues. After the appraisal and evaluation of the judgment, 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.
[5.] Aggrieved by the judgment, the defendants appealed to this Court by filing four grounds of appeal from which they, inelegantly and I must add too, astonishingly, framed 14 issues for determination. The respondent framed three issues for determination and they are as follows:
1. 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 Imo State.
2. 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 situated in an area called Ikpa Nkwo Chukwu Nneato, the cradle of Nneato.
3. Whether a woman, married or a widow, can be sued for a trespass committed by the woman.
[6.] I must confess quite candidly that it is patently difficult to make head or tail of the appellant's case. There is utter confusion. The three qualities or characteristics of issues contained in a brief are clarity, brevity and precision.
[7.] It is quite obvious that the learned counsel for the appellant does not quite appreciate or know how to frame issues. I have therefore had to go thorough 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, religion, or political opinions.
(2) No citizen of Nigeria shall subjected to any disability or deprivation merely by reason of the circumstances of his birth.
[8.] 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.
[9.] Any laws or custom that seeks to relegate women to the status of second-class citizens, thus depriving them of their invaluable and constitutionally guaranteed rights, are laws and customs fit for the garbage and consigned to history.
[10.] 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 was the incidence of the 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 beings, 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.
[11.] It is an apostacy 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 guarantee 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.
[12.] 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 the 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 cannot 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 ha[ve] 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 [the] 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.
[13.] 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 was in disarray in that in one breath she gave the impression that the land belonged to her and Alajemba, and in another breath she said that the land was solely that of the first appellant. Her evidence occasionally gave the impression that the land belonged 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 (first respondent) is alone in the family and then moved in force to take it away from him.' Importantly she said: Whatsoever I will say in court would be as I heard from my late husband.'
[14.] However, it turns out that the evidence she proffered wears the garb of the testimony of a parrot. Her evidence lacked depth and substance which explains why the lower courts disregarded its weight and substance. Even if she could have given hearsay evidence, the confusion latent in her testimony renders it valueless. The appellants submit that the lower Court rejected admissible evidence of their 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 big issue of the fact that PW4 called the land Nkwo Chukwu Nneato, while the respondent called it Ikpa Nkwo. ln fact all three witnesses for the respondent called it lkpa Nkwo. This obvious discrepancy does not go to the essence of the case because 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 first Court and obviously in the lower appellate Court.
[15.] In my view, there is no merit in the appeal. It is therefore dismissed with costs assessed at N4000.00.