⦿ CASE SUMMARY OF:
Okonkwo Timothy (ALIAS JOB) v. Sunday Oforka & Anor. (2007) – CA
by PaulPipar
⦿ THEME(S)
– Land instrument registration;
– Women ownership;
– Will;
⦿ PARTIES
APPELLANT
Okonkwo Timothy (ALIAS JOB)
v.
RESPONDENTS
1. Sunday Oforka
2. Sister Martina Oforka
⦿ CITATION
(2007) LPELR-CA/E/108M/2003;
(2008) 9 NWLR (Pt.1091)
⦿ COURT
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Denton-West, J.C.A.
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– G.O. Onyenwife
* FOR THE RESPONDENT
⦿ FACT
At the Nnewi High Court the plaintiffs now the respondents claimed against the defendant now the appellants:
(a) A declaration that the defendant/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.
⦿ ISSUE(S)
(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.
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED]
1. Issue 1 was granted in favour of the Respondent.
RATIO:
i. 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.
ii. Exhibit A even though not registered could be admitted by the lower court, for equity regards as done that which ought to be done.
2. Issue 2 was granted in favour of the respondent.
RATIO:
i. 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.
⦿ REFERENCED
Sections 42 and 43 of the Constitution of the Republic of Nigeria;
⦿ SOME PROVISIONS
Sections 2 and 15 of the Land Instrument Registration of Anambra State:
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.
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
* PROCEDURAL
* SUBSTANTIVE
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. – Denton-West, J.C.A. Timothy v. Oforka (2007)
