Adiele Ihunwo V. Johnson Ihunwo & Ors (2002)

LawGlobal-Hub Lead Judgment Report

MICHEAL EYARUOMA AKPIROROH, J.C.A. 

This is an appeal by the appellant against the judgment of the High court of Rivers State sitting at Port Harcourt delivered on the 17th day of June, 1998 in Suit No. PHC/99/96.

The claim of the appellant in the court below in his Statement of Claim is as follows:

1(i) A declaration that under the Ikwere Native law and custom the plaintiff is entitled absolutely to the land known and called “RUGBURU ASASAR LAND” situate at the area commonly referred to as Mile 12 along the Port Harcourt – Aba Road, Port Harcourt.

(ii) A declaration that the plaintiff is the holder of the Statutory Right of Occupancy over the said land.

2. The sum of N3, 000,000.00 (Three Million Naira) being damages for trespass committed by the Defendants on the said land.
3. An order of Perpetual Injunction restraining the defendants by themselves or by their servants, agents, privies and associates from continuing to trespass on the said land or in any manner whatsoever asserting any claim or rights over the said land or disturbing in any manner or from the plaintiff’s full or partial exercise of his rights or powers of ownership and/or possession over the said land.

The plaintiff’s case in the Court below was that sometimes in 1951 by a document dated 23/7/51 the land in dispute was given to him in exchange of the sum of 20(pounds) which was required by Solomon Opara, a member of Rumuwele family to enable him contest for the then prestigious position of a Customary Court Judge.

The pledge of the land to him was not redeemable by their family because it was not the usual kind of a pledge which was redeemable at the time when the pledgor had money to pay the sum lent to him but a pledge that ought to have been redeemed within a stipulated time and that their family also had violated the condition that required them to join him as defendants in suit which affected the pledged land.

He continued to enjoy the exclusive use and possession of the land until sometimes in 1992 the 1st respondent and his son summoned him before a native customary tribunal who claimed to be acting for the Rumuwele family which adjudged in favour of the respondents which decision he rejected. Sometimes or about January, 1994, the respondents proceeded to survey the land hence he commenced this action against them claiming the reliefs set out above.

The respondents’ case put briefly was that the land was pledged to the appellant by the family for the sum of 20(pounds) to enable Solomon Opara, a member of the family contest for the then prestigious position of a Judge and that it was redeemable by the family.

When the appellant insisted that the land was not redeemable by the Family, the 1st respondent and his son acting on behalf of the family summoned him before Chief Ojiowhor Francis Okocha arbitration which gave judgment in their favour and directed them to refund the pledged sum of 20(pounds) to him which they did through Chief C.N. Ndu but the appellant refused to accept it hence he instituted this act ion against them.

At the end of the trial in the Court below, the learned trial Judge Obie Daniel-Kalio in a reserved and considered judgment dismissed the appellant’s claim. Dissatisfied with the decision, the appellant has appealed to this Court and in accordance with the rules of Court, learned Senior Counsel for him filed a brief of argument and framed four issues for determination as follows:

“ISSUE FOR DETERMINATION

1. Whether the Transaction in Exhibit ‘B’ was a pledge, if so what was the nature and effect of the pledge, if not what was the nature of the transaction? (Original Grounds 4 and Additional Ground ‘A’).
2. Whether the Plaintiff was not entitled to judgment in respect of the pledged land, the learned trial Judge having found that the custom of Rumuokwurushe (the custom applicable to the case) is that the pledgor has a duty to defend the pledged land when the same falls into litigation, failing which the pledged land rest in the pledge who defends the same (Original Ground 5).
3. Whether the Defendants’ family had a right of possession of the land in dispute as adjudged by the learned trial Judge. (Additional Ground ‘B’). Whether the plaintiff was in law and upon the preponderance of evidence not entitled to Judgment against the Defendants.

Learned Senior Counsel for the respondents also filed a brief of argument and distilled two issues for determination as follows:

A. “Whether the learned trial Judge was right when he held that the transaction evidenced by EXHIBIT ‘B’ was neither an irredeemable pledge nor a conditional sale?