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:

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, lmo 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 stituated in an area called, lkpa Nkwo Chukwu, Nneato. The cradle of Nneato.
3. 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.”