⦿ CASE SUMMARY OF:
Alajemba Uke & Anor v. Albert Iro (2001) – CA
– A woman can give evidence in court;
– whether a woman can be sued in customary law;
Alajemba Uke & Anor
(2001) 11 NWLR (Pt.723)196;
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
* FOR THE RESPONDENT
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 Appeal Court upheld the trial’s court judgement.
Further, the defendant has appealed before this Court of Appeal.
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?
⦿ HOLDING & RATIO DECIDENDI
ISSUE 1: Judgement was given in respondents’ favour.
i. 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.
ii. 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.
ISSUE 2: Judgement was given in the Respondents’ favour.
i. 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.
ISSUE 3: Judgement was given in respondents’ favour.
i. For 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.
Section 39(1) of the 1979 Nigerian Constitution;
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
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.”
⦿ NOTABLE DICTA
The three qualities or characteristics of issues contained in a brief, are clarity, brevity and precision. – PATS-ACHOLONU, J.C.A. Alajemba v. Albert (2001)
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. – PATS-ACHOLONU, J.C.A. Alajemba v. Albert (2001)
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. – PATS-ACHOLONU, J.C.A. Alajemba v. Albert (2001)