Bennet Ude Agu V. Ozo Moses Nnadi (1998)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A 

This is an appeal against the decision of Okadigbo, J., delivered on 25th June, 1990 in the Anambra State High Court, in Enugu Judicial Division silting in Enugu. The claims of the plaintiff which went to trial are –

“(a) A declaration that the plaintiff is entitled to redeem the pledged land verged pink in the plaintiff’s plan No. FCO/09/82 and thereon described as the land in dispute.

(b) An order of court that the defendant do accept from the plaintiff the sum of twenty five naira (N25.00) being the redemption money in respect of the said land.

(c) A perpetual injunction restraining the Defendant and/or his agents or servants or privies from remaining on the said land or remaining in possession of the said land.”

At the trial, the plaintiff called three witnesses and placed reliance on the evidence or one Oza Jonas Ozougwu who had earlier testified before his death in the same action. The defence also called two witnesses. The learned trial Judge after considering the material, both oral and documentary, placed before him, in a reserved and considered judgment dismissed the plaintiffs claim. The plaintiff was unhappy with the decision of the learned trial Judge and being aggrieved appealed to this court on 8 grounds of appeal.

In compliance with the practice and procedure of this Court, learned counsel, on behalf of their respective clients filed and exchanged briefs of argument. The learned counsel for plaintiff (hereinafter referred to as the appellant) formulated five issues which issues are hereunder set out as follows –

1. As the parties agreed that the land was originally pledged to the father of Michael Chime, P.W.1, who was it that pledged the land, the plaintiff or the half brother of the plaintiffs grandfather?
2. If the pledge was made by the plaintiff’s grand father is it not the plaintiff who is entitled to redeem the said land pledged by his grand father?
3. Whether or not the learned trial Judge was right in holding that he did not see how he could believe the evidence of P.W.1, Michael Chime, all the alleged customary land of trusteeship in Ngwo when there was no valid reason given by the learned trial Judge to make him disbelieve the said witness.
4. Whether or not the learned trial Judge was right to have glossed over the evidence of a deceased witness (Oza Jonas Ozougwu) whose evidence was tendered by the plaintiff and reflected in Exhibit B.
5. Whether or not from the state of the pleadings and the evidence before the trial Judge the plaintiff was entitled to judgment.

The learned counsel for defendant (hereinafter referred to as the respondent) formulated three issues in the respondent’s brief. The three issues read as follows

“1. Whether Chime Nwagu Ude held the land in dispute as beneficial owner or as trustee for the appellant.

2. Whether the transaction between Chime Nwagu Ude and the respondent was a pledge or an outright gift.
3. Whether the trial court was right in dismissing the appellant’s case.”

This last formulation in respondent’s brief is a variant of the fifth issue in the appellant’s brief and respectfully they did not arise from any of the grounds of appeal adumbrated in the notice of appeal. Learned counsel in these purported issues are merely giving ventilation to their wishful thinking on the outcome of the appeal. This is not good enough. The respondent, without ascribing any reason framed only two issues from the 8 grounds of appeal filed by the appellant. Having not appealed, the respondent should explain why his own formulation should be different from the appellant’s.

The respondent’s approach has resulted in his not reacting to appellant’s issue 1 because the answer in respondent’s issue I is directed at the appellant’s issue 2. It follows that respondent has no answer to this issue. The respondent’s predicament arose from the paucity of his own formulations.

At the hearing of appeal, Dr. Oguagha adopted and relied on the appellant’s brief. He also made a short elucidation of the brief. Similarly, Mrs. Offiah adopted and relied on the respondent’s brief. She also made oral elaboration on that brief.

In my respectful opinion, be that as it may, the appellant having joined claims for injunction and trespass with the declaration that he was entitled to redeem the pledged property has put his title into issue. His claim for trespass and for an injunction to restrain further act or acts of trespass postulates that the ownership of the disputed area is his either by gifts or inheritance or exclusive possession. The principal question to be tackled in the appeal would accordingly appear to be whether the appellant has discharged the onus placed on him to show that ownership of the land in dispute rested on him. See Abotche Kponugbo & others v. Adja Kodadja 2WACA 24; Okorie & others v. Udom & others (1960) SCNLR 326 (1960) 5 FSC 162 at 165 where Ademola C.J.F. said-

“Counsel for appellant further argued that as the case before the learned trial Judge was merely a claim for trespass, it having been established that the appellants were in possession of the area complained of in the writ … it was unnecessary to consider the question of title to the land, and the appellants were entitled to judgment, without establishing title, if their possession was disturbed.