The land in dispute belonged to one Nwanyiakoli, who died without issue.

The plaintiff, who was her stepson, contended that the land devolved on him under customary law. His case was that because Nwanyiakoli was barren she married his (the plaintiff's) natural mother for her own husband (the plaintiff's father and defendant's grandfather); and that under customary law the issues of such a marriage are regarded as the issues of the barren woman.

The defendant, too, relied on customary law, contending that on the death of his grandfather, his own father, M., who was the deceased's eldest son, inherited Nwanyiakoli, she being one of the deceased's wives, and on her death M. inherited her properties, which later devolved on the defendant and M.'s other children; he also submitted that the marriage of one woman to another, described as 'woman to woman' marriage, is contrary to public morality.

On appeal by the defendant:-

HELD:

(1)     Where there is proof that a custom permits marriage of a woman to another woman, such custom must be regarded as repugnant by virtue of the proviso to the section 14(3) of the Evidence Act, and ought not to be upheld by the court;

(2)     On a close examination of the facts, however, the true nature of a "woman to woman" marriage is not a marriage between two women, rather, one woman, due to the fact that she was barren, had procured another woman for her husband as a wife; and such arrangement is not caught by the proviso to section 14(3).

APPEAL dismissed.

G.E.N. Onyekwuluje for Appellant.

A.K.L. Uche for Respondent.

Madarikan, J.S.C. (delivering the judgment of the Court):-This appeal is from the judgment of Aniagolu, J. in the High Court, Umuahia, in an action (Suit No. HU/36/71) instituted by the respondent, as plaintiff, against the appellant who was the defendant and who was sued in a representative capacity, namely, for himself and as representing the Meribe family. In the action, the plaintiff had claimed declaration of title to a parcel of land called "Uzo Ama Awom", N200 damages for trespass and an injunction.

At the trial, it was common ground that Nwanyiakoli, one of the wives of Chief Cheghekwu Egwu, owned the land in dispute. It transpired that Chief Egwu died in 1925 and was survived by many children two of whom were the plaintiff and Meribe Cheghekwu Egwu who was the father of the defendant. Eventually, Nwanuyiakoli died in 1937.

The evidence led in support of the plaintiff's case was that because it seemed as if Nwanyiakoli was barren, she handed her niece, Nwanyiocha, over to Chief Egwu as a wife. We shall refer, in passing, to the relevant portions of the evidence of one of the witnesses on this point. In his evidence in chief, Chief J.O. Ekwuruke (P.W.4) said:-

"It is the custom in our place that if a woman has no issue she can marry another woman for her husband; any issue from the said married woman would be regarded as an issue from the woman who married her for the purpose of representation in respect of estates and inheritance."

And under cross-examination, he said:-

"The reasoning behind the custom is that where a man marries two sisters the two sisters would never live on good terms. For that sake the custom forbids it. But where it is the exiting wife who comes and marries her own sister for the husband, then the custom permits this to happen since the matter of quarrel would not arise where she brought her sister herself."

Later, Nwanyiocha had children for Chief Egwu the eldest of whom was the plaintiff. Though the plaintiff admitted that Nwanyiocha was his mother, he went further to contend that Nwanyiakoli was his step-mother and that she regarded him as her son.

"because she lived with my natural mother. She breastfed me and maintained me as her son. She put me in school and I lived with her as her son."

It was part of the plaintiff's case that when Nwanyiakoli died in 1937, he performed customary burial ceremonies and inherited all her properties (including the land in dispute). He had since been in undisturbed possession of the land until 1971 when the defendant committed the acts of trespass giving rise to this action.

The plaintiff also called two of his boundarymen (Peter Ucheagwu (P.W.1) and Gilbert U. Iheme (P.W.2) as witnesses. They testified that after the death of Nwanyiakoli, the plaintiff started farming on the land in dispute and that neither Meribe nor the defendant farmed on the land.

The defence to the action was that after the death of Chief Egwu, Meribe being his eldest surviving son, inherited Nwanyiakoli under native law and custom; that they both lived together as husband and wife; and that they farmed on the land. When Nwanyiakoli died, Meribe performed the customary burial ceremonies and inherited her properties (including the land in dispute); and, on the death of Meribe, the said properties devolved on his children. The defence stoutly denied the existence of the custom alleged by the plaintiff permitting a barren wife to marry a woman for her husband, the issues of whom would be regarded as the issues of the barren woman.

In an attempt to narrow down the issues contested at the trial, the learned trial Judge set out, in his judgment, the issues on which the parties were agreed; and before reviewing the evidence, he made the following observations:-

"The plaintiff contended, hotly disputed by the defendants, that:-

(1)     It was Nwanyiakoli who went and married, according to custom, her relation, Nwanyiocha, for Chief Cheghekwu Egwu, because she herself was barren and wanted Nwanyiocha's issues to be, and to represent, her issues and, to all intents and purposes, efface her barrenness;

(2)     He (the plaintiff) was regarded as a son to Nwanyiakoli and that he inherited her real estate, including the land in dispute, on her death and that he had been in possession of the said had land since her death;

(3)     He buried, and performed the burial ceremonies, of the late Nwanyiakoli as her son." He then accepted the evidence of the plaintiff and his witnesses and expressly rejected "the evidence of the defendant and his witnesses wherever they are in conflict with the testimony of the plaintiff and his witnesses" He also made the following specific findings of facts:-

"The court is satisfied that Nwanyiakoli married Nwanyiocha for Cheghekwu; that she treated the plaintiff as her own son; and that the arrangement was in accord with the native law and custom of the area."

Later on, and in the course of the same judgment, the learned trial Judge observed thus concerning the submission made on behalf of the defence that the "marriage" between Nwanyiakoli and Nwanyiocha was against public morality in that it was a marriage of one woman to another woman:-

"the facts disclosed in evidence did not show that Nwanyiakoli married Nwanyiocha for herself-a fact naturally impossible-but that she 'married' her for her husband. The word 'married' in that context is merely colloquial, the proper thing to say being that she procured Nwanyiocha for Chief Cheghekwu to marry her. There was no suggestion in evidence that there was anything immoral in the transaction."

He eventually entered judgment for the plaintiff.

The defendant has appealed against that judgment on six grounds. At the hearing of the appeal however, learned Counsel for the appellant, Mr G.E.N. Onyekwuluje, sought and was granted leave to abandon the 2nd, 3rd and 4th grounds of appeal and they were accordingly struck out.

He then argued the 1st and 5th grounds together. They are that:-"(1)  The judgment is against the weight of the evidence; and

(5)     The learned trial Judge erred in law when he said 'The Court is inclined to the belief, as submitted by plaintiff's counsel, that the defendants are using their numerical superiority and their relative better financial position to attempt to deprive the plaintiff of the land which obviously had descended to him upon the death of his putative mother', when there was no such evidence and allowed this belief and sentiment to influence his judgment."

Counsel referred us to the pleadings, and submitted that as issues were not joined on the numerical strength or financial position of the defendant, and as the findings of the judge in this regard were not supported by evidence, the learned trial Judge was in error.

Counsel also referred us to a passage in the judgment where the learned trial Judge stated that the parties were agreed that:-

"the said Nwanyiocha came from the same family as Nwanyiakoli being the daughter of Nwanyiakoli's brother, one Nwoko."

and contended that there was no such agreement either in the pleadings or on a correct appraisal of the evidence.

Finally, counsel argued that in view of the errors highlighted by him, the judgment ought to be upset.

In reply, it was the submission of Mr Uche on behalf of the respondent that the central issue and perhaps the only issue in the case was whether Nwanyiocha was married by Nwanyiakoli or whether she was married by Chief Egwu direct. He referred to the evidence and contended that there was abundant evidence to support the findings of the lower court; and that the judge could not have come to any other conclusion.

We think that the points raised in these grounds of appeal deserve very careful consideration. There is some evidence on record to justify the finding of the lower court that the family of the defendants, that is, Meribe family, is larger than that of the plaintiff. It is the evidence of the defendant himself who said under cross-examination that:-

"Meribe's sons are up to 10 who are alive. Plaintiff had 2 other brothers, but one is dead leaving one other alive."

Though there is evidence that the defendant wanted to "snatch" the land in dispute from the plaintiff, yet there is no direct evidence that the defendants were using their "numerical superiority" to deprive the plaintiff of the land in dispute nor is there any evidence from which such finding could be reasonably inferred. Moreover, we have sought in vain for any evidence on the record establishing or suggesting that the members of Meribe family were in a better financial position than the plaintiff. We must therefore conclude that the findings in the passage of the judgment quoted on the 5th ground of appeal are unsupported by evidence.

We will now advert to another point raised by counsel whilst arguing the 1st and 5th grounds of appeal. It cannot be disputed that the evidence given by the plaintiff and some of his witnesses that Nwanyiocha was Nwanyiakoli's niece was denied by Ramond Meribe Cheghekwu (D.W. 3) when he said:-

"Nwanyiocha and Nwanyiakoli are from the area but not from the same father. Nwoko was the father of Nwanyiocha and Nwachukwu was the father of Nwanyiakoli. Nwoko and Nwachukwu were from the same compound and not from the same father."

Under cross-examination, he said:-

"Put: Nwanyiakoli and Nwanyiocha came from the same family at Ogbodiukwu?

A.: Both are from Ogbodiukwu but not of the same father but of the same compound. I know Nwanyiocha's father was one Nwoko, and that Nwachukwu was the father of Nwanyiakoli".

When pressed further under cross-examination, he said:

"Put: Nwanyiakoli and Nwoko were of the same parents their father being Nwachukwu?

A: I don't know

It appears to us that the learned trial Judge must have overlooked this evidence, when he stated in his judgment that the parties were agreed:-

"that the said Nwanyiocha came from the same family as Nwanyiakoli being the daughter of Nwanyiakoli's brother, one Nwoko."

In our view, the errors which have been thus spotlighted do not go to the root of this matter as we are convinced that they in no way affected the mind of the learned trial Judge in the consideration of the vital issues in the case, namely:-

(1)     whether the marriage of Nwanyiocha to Chief Egwu was direct or whether it was Nwanyiakoli who arranged the marriage because she was barren;

(2)     the consequences flowing therefrom under customary law;

(3)     whether by virtue of the nature of the said marriage, the plaintiff was entitled to inherit the property of Nwanyiakoli.

Furthermore, as the findings of the judge on these vital issues are supported by the large body of evidence given by the plaintiff and his witnesses, we cannot accede to the argument of counsel advanced in support of the 1st and 5th grounds of appeal that the judgment ought to be disturbed.

Mr Onyekwuluje next argued the 6th ground of appeal which reads as follows:-

"(6)    The learned trial Judge erred in law when he held that Nwanyiakoli married Nwanyiocha according to custom and that the plaintiff is the son of both his own mother Nwanyiocha and Nwanyiakoli. Such a custom would be repugnant and ought not be upheld. If Nwanyiakoli merely procured Nwanyiocha for Chief Cheghewku to marry her as held by the court then the plaintiff has no claim to be the son of Nwanyiakoli and thereby prevent her and her landed property from being shared."

Counsel referred us to the proviso to section 14(3) of the Evidence Act which prohibits the enforcement of any custom as law if such custom is contrary to public policy and is not accordance with natural justice, equity and good conscience. He argued that this case was caught by the proviso on the ground that the marriage of a woman (that is, Nwanyiakoli) to another woman (that is, Nwanyiocha) formed the basis on which the plaintiff's claim was grounded, the claim must fail for the all-important reason that the union of two women in marriage (or what has been graphically described as "woman to woman" marriage) is contrary to public policy and good conscience.

In every system of jurisprudence known to us, one of the essential requirements for a valid marriage is that it must be the union of a man and a woman thereby creating the status of husband and wife. Indeed, the law governing any decent society should abhor and express its indignation of a "woman to woman" marriage; and where there is proof that a custom permits such an association, the custom must be regarded as repugnant by virtue of the proviso to section 14(3) of the Evidence Act and ought not to be upheld by the court. We however do not think that on a close examination of the facts of this case, there was a "woman to woman" marriage between Nwanyiakoli and Nwanyiocha. The true nature of the arrangement was appreciated by the learned trial Judge when he, rightly in our view, made the following observations:-

"the facts disclosed in evidence did not show that Nwanyiakoli married Nwanyiocha for herself-a fact naturally impossible-but that the 'married' her for her husband. The word 'married' in that context is merely colloquial, the proper thing to say being that she procured Nwanyiocha for Chief Cheghekwu to marry her. There was no suggestion in evidence that there was anything immoral in the transaction."

The result therefore is that the 6th ground of appeal must also fail.

The appeal is accordingly dismissed with costs to the plaintiff/respondent assessed at N135.00.