Adiele Ihunwo Vs Johnson Ihunwo & Ors (2013)
LAWGLOBAL HUB Lead Judgment Report
This is an appeal against the unanimous decision of the Court of Appeal, Port Harcourt Division (herein after called Court below) delivered on 11th day of December, 2002. Before the trial court, the appellant as plaintiff had commenced an action by writ of summons against the respondents as defendants for themselves and as representatives of the Rumuwele family of Remuokwurushe. By the endorsement on the said writ of summons, the PAGE| 2 appellant had claimed as follows: ‘l(i) A Declaration that under the Ikwerre native law and custom, the plaintiff is entitled absolutely to the land known and called ‘RUGBURU ASASAH 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 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 form the plaintiffs full or partial exercise of his rights or powers of ownership and or possession over the said land.’ Pleadings were filed and duly exchanged by the parties and the case went to trial. Parties called their respective witnesses in support of their case. The gist of the case is as follows: Sometimes in 1951, the Rumuwele family upon a transaction between the appellant and the family, the appellant was put into possession of the land in dispute in exchange for the £20 (Twenty pounds) desperately needed by the family. According to the appellant, the document evidencing the transaction was received in evidence and marked Exhibit B. The parties agreed that the transaction was a pledge. The only point of disagreement between the parties was in relation to the nature of the pledge. While the appellant claimed that under the Ikwerre custom and tradition, the same was an irredeemable pledge, the respondents having failed to redeem within the customarily recognised redeemable period of three (3) years, the respondent denied that the pledge was irredeemable. The respondents insisted that the pledge could be redeemed at anytime. Indeed, the respondents stood on the principle of ‘once a pledge, always a pledge’. In other words, the theory of an irredeemable pledge was out rightly debunked and the plank of the defence therefore rested on the fact that at all time material, the relationship between the PAGE| 3 parties over the land in dispute was nothing beyond pledgor and pledgee. At the end of the trial, the trial judge found that the appellant failed to establish his claim for a declaration of title. Indeed, that the respondents family had not divested its interest in the land in dispute and consequently has a right to possession of the land. The court dismissed the appellants claim with costs. That led to the appeal to the court below which found the appeal lacking in merits, dismissed same and affirmed the decision of the trial court. The appellant further appealed to this court by his Notice of Appeal filed on 7th March, 2003 containing five (5) grounds of appeal. Pursuant to the rules of this court, parties filed and exchanged briefs of argument. In the appellants brief of argument, the following issues were formulated for determination by this court. Issues for Determination 1. Was the Court of appeal right when it held that the learned trial Judge made a specific finding to the effect that the transaction contained in Exhibit ‘B’ is a pledge? (Ground 1). 2. Was the Court of Appeal right when it came to the conclusion that the transaction evidenced by Exhibit ‘B’ was not an irredeemable pledge under Ikwerre custom? (Grounds 2 and 5). 3. Was the Court of Appeal right when it held, that although the learned trial judge had failed to consider the issue of customary arbitration as evidenced in Exhibit G, the said arbitration award was binding on the appellant? (Ground 3). 4. Was the Court of Appeal right when it failed to resolve issue No. 2 duly formulated in the appeal by the appellant, if not, was the appellant not entitled to judgment? (Ground 4). In their brief of argument filed on 15th December, 2006 but deemed filed and served PAGE| 4 on 16th May, 2007, the respondents adopted the four issues distilled by the appellant in his brief of argument for determination, and based their argument on those issues. The appellant in his brief of argument argued the said issues seriatim. Issues No. 1 – The appellant gave the background to the complaint which gave rise to this issue as contained in appellants additional Ground A at the Court below and yet another Ground 4 as argued on page 199 of the printed record of appeal. It was argued at the court below that the learned trial judge failed to make a specific finding as to the nature of Exhibit WB’ and concluded there that the failure led to a wrong conclusion. It was contended that the attention of the Court of Appeal was drawn to the conclusion of the trial Judge at page 161 of the record wherein the learned trial Judge said; ‘That being the case, even assuming that the land in dispute here is pledged land, which is not the case.’ And on page 163 of the record, lines 16 and 17, wherein the trial Judge on the question of conditional sale of the land in dispute states as follows: ‘I therefore cannot accept that there was a conditional sale of the land to the plaintiff.’ Learned counsel to the appellant contended that from the above, it is clear that the learned trial Judge was of the view that the transaction in Exhibit ‘B’ was neither a pledge nor a conditional sale. And that the learned trial Judge did not proceed to determine the kind of transaction that Exhibit B represented. It was contended that in the entire judgment there was nowhere the learned trial Judge held positively or even by inference that Exhibit ‘B was a pledge. Learned appellants counsel felt that the court below ignored the conclusion of the trial Judge that the transaction in Exhibit *B neither represents a pledge nor a conditional sale, but held at page 277 as follows: ‘that the interpretation given to Exhibit ‘B’ by the learned trial Judge that the transaction contained in it is a pledge cannot be faulted-‘ Learned counsel submitted that, that conclusion of the court below in that regard is not PAGE| 5 borne out of the record, it is faulty and perverse. He stated further that the court below proceeded on a false premise when it held that it was the finding of the learned trial Judge that transaction in Exhibits ‘B’ was a pledge, leading to a wrong conclusion by the court below which, he further submitted occasioned a miscarriage of justice. He urged the court to set aside the findings of the Court of Appeal in this regard and resolve the issue in favour of the appellant. On this Issue No. 1, the respondents referred to the judgment of the trial Court, in particular, on pages 151 – 160 of the record, and contended that trial Judge upon making a finding that the type of pledge pleaded by the appellant had not been proved turned his attention to the second issue raised which he considered germane namely; ‘whether it is the custom of the Ikwerre that a pledged land which falls into litigation must be defended by the pledgor and if not defended by such pledgor, a pledgee who singularly defends the land become the absolute owner thereof’ On the above, reference was made to the holding of the trial Judge in lines 19-31 of page 160 of the record from which it held as follows:- ‘That being the case, even assuming that the land in dispute here is pledged land, which is not the case, the defendants cannot lose their title over it, because they failed to defend it as there cannot be a duty to defend a land that does not belong to them as I earlier stated.’ Learned respondents counsel contended that the appellants argument on the reasoning of the trial Judge on this issue, in particular, as above, was misguided. He submitted that reference to uthe land in dispute’ as quoted was to the land referred to in Exhibit D in the Customary Court but not the land, subject of this appeal. He contended that as shown on the records, the trial Judge emphatically rejected the account of the appellant indicating either an irredeemable pledge or conditional sale. But that the Judge accepted that there was a transaction between the parties involving the exchange of money for a temporary possession of the land in dispute. The learned respondents counsel submitted that both the trial court and the court below knew that the transaction between the parties was nothing more than a pledge. He urged the court not to disturb the concurrent findings of the two courts as the allegation of PAGE| 6 perversity cannot be sustained by the printed records. He relied on Okhuarobo Vs Aigbe (2002) 9 NWLR (Pt-771) 29. He urged the court to resolve the issue against the appellant but in favour of the respondents. On this issue No.l, ‘whether the court of Appeal was right when it held that the learned trial Judge made a specific finding to the effect that the transaction contained in Exhibit B is a pledge’, it is apposite to state what the trial Judge found and said in his judgment on this point. To begin the consideration of the case after having referred to the evidence adduced by both parties and submissions of their counsel, the trial Judge opined thus: ‘A consideration of this case largely depends on the question of pledge of land under the native law and custom of Ikwerre. I do not think however that this means that the court should go into a consideration of the various forms of pledge available under Ikwerre native law and custom. To go into such a consideration…. will be to indulge in an academic exercise. A court case is about real problems between parties. It does provide a forum for academic discussions no matter how attractive or titillating such discussions might be.’ The learned trial Judge went further to state the task the court was faced with in the instant case as follows: ‘In this case, all the court needs concern itself with is a consideration of the particular type of pledge which the plaintiff contends is in operation in relation to the land in dispute in this case, not a general consideration of types of pledges available in Ikwerre land. Indeed, one type of pledge has been ruled out of dispute in this case as both parties recognize that type of pledge. That is the type of pledge redeemable at any time.’ After having considered the evidence adduced and applicable law and case laws on this point, the trial Judge held follows: ‘In this case the plaintiff pleaded the fact that the type of pledge applicable in PAGE| 7 this case has a feature in it which give a pledgor a concessional period of three years to redeem the pledge. The evidence led presents facts as different as the number of people stating them. The end result is that the facts led in evidence do not support the fact asserted in the pleadings. I hold therefore that, the form of pledge pleaded in paragraph 12(iii) of the statement of claim has not been proved to exist by the evidence led. Consequently, I do not accept that the form of pledge described in the pleading aforesaid has been established as existing among the Ikwerre people, particularly of the Rumuo Kwurushe stock.’ There is no doubt that the appellant predicated his case on Exhibit *B which was described as the agreement between the appellant and the respondents family. After reproducing the said Exhibit B and examined same, the trial Judge came to the following conclusion: . ‘The Agreement Exhibit B discloses the following: 1. It is between Solomon Opara and Adiele Ihunwo. 2. It acknowledges receipt of £20 in exchange for a promise (sic) of land which was given to Solomon Opara by Josiah Okampa and Ogo Ihunwo. 3. The land is given to Adiele Ihunwo in place of his £20. 4. The fee is to be returned to Adiele Ihunwo between January to March of an unspecified year. 5. If the money is not returned between January and March, Adiele Ihunwo is to find someone who will bring the £20 and who will hold the land. 6. The person who will hold the land should be introduced to Solomon, Josiah Okampa, Ogo Ihunwo and others.’ From the above from Exhibit B, the trial Judge held as follows: ‘My understanding of the agreement is that the family gave a piece of land to the plaintiff in exchange of £20 which £20 pounds was to be refunded to the plaintiff by a given time though not particularly stated. If the family cannot give the plaintiff the £20 within the time given, then the plaintiff was to look for someone who can hold the land PAGE| 8 and get his money from such a man, provided he introduces the man who will now hold the land to (sic) the family.’ One may then ask, what does it mean to pledge? This means ‘a formal promise or undertaking’. The act of providing something as security for a debt or obligation. A pledge is something more than a mere lien and something less than a mortgage.’ ‘The pledge is said to be as old as recorded history and is still in use. In this transaction the debtor borrows money by physically transferring to a secured party the possession of the property to be used as security, and the property will be returned if the debt is repaid.’ See; Blacks Law Dictionary, Ninth Edition page 1272. A pledgee is one with whom a pledge is deposited while a pledgor is one who gives a pledge. From the findings of the trial court and the conclusion arrived thereat, it is clear that the trial judge found that the transaction between the appellant and the respondents evidenced by Exhibit B is a pledge though not irredeemable. In the judgment of the court below per Akpiroroh, JCA on this point the court held as follows: ‘It is my view that the interpretation given to Exhibit B by the learned trial Judge that the transaction contained in it is a pledge cannot be faulted and as such the submission of learned senior counsel for the appellant that the learned trial Judge did not make specific findings as to the nature and effects of Exhibit B is clearly misplaced because he carefully and dispassionately considered the nature and its effect. Although inelegantly drafted but in its face are words like ‘give’ and not ‘sale’ which clearly indicate that the transaction was for borrowing money with intention to repay and not an irredeemable pledge or a conditional sale. Besides, the appellant did not plead conditional sale in his statement of claim.’ From the aforesaid, it is clear that the court below was right in the above holding that the trial Judge made specific findings to the effect that the transaction contained in Exhibit B is a pledge. This issue is accordingly resolved against the appellant. PAGE| 9 Issue No. 2 This is, whether the Court of Appeal was right when it came to the conclusion that the transaction evidenced by Exhibit B was not an irredeemable pledge under the Ikwerre custom In arguing this issue, the learned Senior Counsel to the appellant conceded that the conclusion of the Court of Appeal to the effect that the transaction in Exhibit B is not an irredeemable pledge appeared to constitute a concurrent finding of fact against the background of the finding of the learned trial Judge to the effect that the Plaintiff/Appellant could not establish that the transaction in Exhibit B was irredeemable pledge or that such a pledge indeed existed under the Ikwerre custom. Learned Senior counsel however, notwithstanding submitted that this court is entitled to set aside such a finding where there is substantial error which is apparent on the record, where the findings are not supported by sufficient evidence or where the findings are shown to be perverse. This court will also interfere with concurrent finding of fact where there is some miscarriage of justice or a violation of any principle of law. He relied on the following cases: Oladele Vs. Anibi (1998) 75 SCNJ 24 at 29 Adeleke Vs Asani (2002) 8 NWLR (Pt.768) 26 at 43, Princent Vs State (2002) 18 NWLR (Pt.798) 49 at 76. Learned senior counsel referred to the complaint of the appellant at the court below that the finding of the learned trial Judge on the question of the nature of the transaction in issue, whether it was an irredeemable pledge or not, was perverse. He contended that the trial Judge was in error in his perception of the evidence of PW.l. He referred to the amendment to the record on the testimony of PW1 on the custom of Ikwerre on this issue and the perception of the trial Judge. He submitted that the evidence as perceived by the learned trial Judge did not reflect the evidence of PW1, which he contended confirmed the case as pleaded by the plaintiff in paragraph 12 (iii) that a concessionary period of 3 years could be allowed to the pledgor after he has failed to redeem the land within the specified period. It was submitted that the finding of the learned trial Judge that was based on an incorrect record of evidence was perverse. That his conclusion was not supported by evidence and this led to a grave miscarriage of justice. Learned senior counsel contended that notwithstanding the clearly articulated point in PAGE| 10 the appellants brief of argument before the court below, they just glossed over it. He contended further that the court below merely held that the appellant did not show that the findings of the learned trial Judge were perverse and led to a miscarriage of justice. He urged the court to hold that the approach and conclusion of the court of appeal was erroneous. The appellant referred to the pleadings, in particular, paragraph 12 (iii) of the Statement of Claim and the evidence of PW1, PW3 and PW5. He contended that while the evidence of PW3 portrayed the necessity of a maximum period of 3 years as period of grace before which the vested right of ownership in the pledge would concretise into an absolute title, the learned trial Judge perceived the evidence of PW3 as portraying a mere option. He said that this led the trial Judge into the conclusion that the evidence of PW3 was at variance with the pleadings. Learned senior counsel submitted that this finding of the learned trial Judge was equally perverse. He urged the court to hold that the findings of the learned trial Judge in respect of the evidence of PW1, PW3 and PW5 was perverse and cannot be sustained. He urged the court to set aside the said conclusion of the court below. Learned Senior counsel submitted that the court below not having had the opportunity of observing the witnesses testify, was not in an appropriate position to ascribe credibility to any of the witnesses and was accordingly not in a position to reach a conclusion on the issue of the custom of Ikwerre people in respect ^ of the irredeemable type of pledge as pleaded by the appellant. He urged the court to remit the case to another Judge of the High Court of Rivers State to hear and determine the matter. He urged the court to resolve the issue in favour of the appellant. On this issue, the appellant has urged the Court to set aside the concurrent findings of fact by the two Courts below because, as he put it, they were perverse. In Moses Okhuarobo & Ors. Vs. Chief Aiqbe (2002) 13 SCM 105 at 133, this court, per Ayoola, JSC, opined that ‘it is not only when there is no evidence to support a decision that the decision can be held perverse. Absence of proper evaluation of evidence and failure to draw appropriate inference from them can also amount to perversity where the inference is so clear that no reasonable tribunal would fail to draw them or where the inference drawn by the trial judge does not follow from the evidence or the conclusions that should reasonably follow from the finding of fact he made.’ From the above, can it then be said that the finding of the courts below that the transaction between the parties was not an irredeemable pledge is perverse? For instance, at page 275 of the record, the Court of Appeal noted as follows; PAGE| 11 ‘The only life and vital issue that calls for consideration in this appeal is whether the transaction between the appellant and the respondents as evidenced by Exhibit B was an irredeemable pledge or a conditional sale of the land in dispute by the respondents to the appellant.’ The court then interpreted Exhibit B and came to the conclusion that it did not represent an irredeemable pledge and did not transfer the land in dispute via a conditional sale. It is note worthy that the trial court had earlier observed and rightly too, that ‘the onus is clearly on the plaintiff, this being a land case involving a declaration of title to land, to prove the existence of the type of pledge to which he owes the title of the land he claims. In discharging the onus, the plaintiff must rely on the strength of his case.’ See; Kodilinye Vs Mbanefo Odu (1935) 2 WACA 336; Okpala Vs Ibeme (1989) NWLR (Pt.102)208; Atuanyua Vs Onyejekwe (975) 3 SC 115 It is interesting to note that the appellant had argued that the trial judge had not carried out proper evaluation of the evidence adduced by the appellant through his witnesses, to the effect that Exhibit B which created the pledge between the parties made it an irredeemable pledge upon the respondents failure to pay back the £20 after the expiration of the time created by it. The month of March, 1952 was contended to be the time limit after which the land would become appellants own absolutely. At this stage, it is necessary to know how the terms of the transactions were couched in Exhibit B. With reference to the time the respondents were expected to pay back the £20 to the appellant, the 3rd paragraph of Exhibit B, states, inter-alia, as follows: ‘This money £20 should be returned from January to March, if failed to bring this money £20 at the mention time from January to March, let Adiele find one who will bring this £20 and hold this land. When given out the land to the man, let him bring the man in the presence of Solomon, Josiah Okpampa Ogo Ihunwo and other.’ I had stated earlier the way the trial Judge understood the above transaction. When the trial Judge married the agreement with the oral testimony of the appellants witnesses on the type of pledge the parties believed they were entering, the court came to the following PAGE| 12 conclusion: ‘Quite obviously, there is no intention to sell the land to the plaintiff even conditionally. The family had no intention to divest itself of ownership of the land. I therefore cannot accept that there was a conditional sale of the land to the plaintiff’ There is no doubt, the appellant had hinged his claim for declaration of title on Exhibit B which the trial court had interpreted to establish a pledge but certainly not an irredeemable pledge. Otherwise, the document will not provide for someone else who may provide the £20 in refund, to again hold the land for the family. This led the trial Judge to come to the conclusion that the appellant failed to establish his claim for a declaration of title to the land in dispute via Exhibit B. There is therefore nothing perverse in the way the trial Judge evaluated the evidence adduced by the appellant upon which the court below arrive at the conclusion that the transaction evidenced by Exhibit B was not an irredeemable pledge under the Ikwerre custom. The court below was right to have so held. In otherwords, there is no perversity and no miscarriage of justice has occasioned. This issue is resolved against the appellant. Issue No. 3 – The appellant referred to page 278 of the record and contended that the court below held that although the customary arbitration evidenced in Exhibit G was not considered or ruled upon by the trial Judge that the same was binding on the appellant as all the conditions of a customary arbitration were duly satisfied. However, learned appellant senior counsel argued that the case of the appellant was that he was not satisfied with the manner in which the arbitration was conducted and that he consequently rejected the result. He submitted that in the face of the evidence, the court below was in error when it held that all the conditions necessary for a customary arbitration award to become binding were satisfied. Learned appellants senior counsel contended that one prominent condition necessary for a customary arbitration award to become binding is that the person putting forward the award must establish that the decision or award was accepted by the parties to the arbitration. PAGE| 13 He relied on Ohiaeri Vs Akabeze (1992) 2 NWLR (Pt. 221) 1 at 24, Aqu Vs Ikewibe (1991) 3 NWLR (Pt. 180) 408; Nwosu Vs. Nwosu (1996) 2 NWLR (Pt. 428) 64 at 75. Learned Senior Counsel contended that there was no evidence before the trial court to show that the appellant accepted the arbitration award. To the contrary, he said, the evidence before the court was that the appellant rejected the award and refused to accept it. He submitted that the court below had no basis whatsoever to have come to the conclusion that all conditions for a binding award had been established in respect of Exhibit G and that same was binding on the appellant. He urged the court to resolve the issue in favour of the appellant. It has been held and it is trite law, that ‘appeals to appellate courts are by way of rehearing. In hearing an appeal, the appellate court should reconsider the materials before the trial court and should not hesitate to overrule his decision even on facts where, after giving due regards to the advantage which the trial court has of seeing the witness, it is clear the decision is wrong. See; Okhuarobo & Ors Vs Aiqbe (supra). There is no doubt, there was an arbitration on the dispute over the land in dispute between the appellant and the respondents. The appellant was not only involved but attended the arbitration. Exhibit G emanated from the arbitration and was before the trial court. Upon consideration of Exhibit G on appeal, the court below held as follows:- ‘The legal basis of all arbitrations is voluntary agreement. If there is a distinct agreement to appoint an umpire to determine the difference between the parties and other conditions are present there is an arbitration. Thus, voluntary submission of both parties of their cases or points of difference between them for arbitration is basic to a binding arbitration’ From the above, I have no hesitation in coming to the conclusion that the court below properly considered Exhibit G which was before the court. The court below was therefore right to have held that the appellant was bound by the award of the arbitration as contained in Exhibit G. This issue is resolved against the appellant. Issue No,4 PAGE| 14 Was the court of Appeal right when it failed to resolve Issue No.2 duly formulated in the appeal by the appellant, if not, was the appellant not entitled to judgment? The appellant referred to his Issue No.2 which he formulated in his brief of argument before the court below as follows: ‘Whether the plaintiff was not entitled to judgment in respect of the pledged land, learned trial Judge having found that the custom of Rumuokwarushe (the custom applicable to the case) is that the pledgor has duty to defend the pledged land when the same falls into litigation, failing which the pledged land vests in the pledgee who defends the same.’ The appellant contended that this issue no. 2 was exhaustively argued in his appellants brief of argument before the court below which issue was distilled from Ground 5 of the Grounds of Appeal which itself was founded on the decision of the trial court on that particular custom. Indeed, on this issue the trial court had opined as follows: ‘From the evidence of the plaintiffs witnesses buttressed by the evidence of DW1 under cross-examination, it is clear and I hold that there is an Iwerre custom applicable to Rumuokwurushe which requires that a pledgor of land must defend the pledged land where the land falls into litigation and if the pledgor does not do so, the pledged land vests in the pledgee who defends the land.’ Learned senior counsel to the appellant contended that the above decision of the trial Judge upheld the case of the plaintiff as he pleaded in paragraph 13 of the statement of claim, a holding that was sufficient to have sustained the plaintiffs claim to title over the pledged land without more. He however further contended that the court below failed to resolve this issue. He submitted that the failure to resolve the issue made the court below fall in error and that has led to a miscarriage of justice. He relied on, Titilove Vs. Olupo (1991) 7 NWLR (pt 205) 519 at 535, Ifeanvi Chukwu (OSONDO) Ltd. Vs. Soleh Bonev Ltd. (2000) 5 NWLR (pt 656) 322 at 352, Bavol Vs. Ahemba (1999) 10 NWLR (pt 623) 381 at 393. Learned senior counsel further contended that in such a situation this court will usually PAGE| 15 exercise an option between remitting the case to the court below for a rehearing or where appropriate dealing with the case itself in order to resolve the issue especially where it does not involve matters bothering on credibility of witnesses or where the issue is one of law. He cited Global Trans Oceanico S,A, Vs, Free Enterprises (Nig.) Limited (2001) 5 NWLR (pt 706) 426 at 442. He submitted that this is an appropriate case for this court to deal with issue no 2 as formulated at the Court of Appeal and resolve same. Learned senior counsel submitted further that from the documentary evidence contained in Exhibit D, it is clear that the land in litigation in the Exhibit was part of the land subject matter of the pledge. He urged the court to hold that applying the custom as found by the leaned trial Judge to the pledge in this case, the respondents family had a duty to join as a defendant in Suit No. 190/63 – Exhibit D to defend part of the pledged land which was under litigation and that having failed to do so, whatever title, if any, left in them in respect of the entire pledged land vested absolutely in the appellant. He urged that judgment be entered in favour of the appellant. On the records, it is clear that after stating the issues for determination distilled by both parties from the Grounds of Appeal filed by the appellant, the court below stated as follows on pages 273- 274 of the record. ‘The issues formulated by senior counsel for the respondents to my mind are sufficient to dispose of this appeal. I will take issues 1 and 2 formulated by Mr. Ukala, senior Advocate of Nigeria together.