Christian Nwosu V. Titus Mbadugha (1999)

LawGlobal-Hub Lead Judgment Report

UBAEZONU, J.C.A.

The case in this appeal originated in the Ozubulu Customary Court. The respondent in this court who was the plaintiff in the Customary Court sued the defendant/appellant claiming as follows:

“1. Declaration of title to and ownership of a piece and parcel of land situate along Nnewi Ozubulu Road on the Both sides of the Road few poles to Afor Ilo-Nza market.

2. Injunction and court Relief to Order the Defendant from further entry and use of and Encroachment on the said land bonafide property of the plaintiff fore fathers whom the plaintiff is their rightful heir.”

The plaintiff/respondent’s claim was dismissed in the Customary Court. He appealed to the High Court which allowed the appeal and set aside the judgment of the Customary Court. Dissatisfied with the judgment of the High Court the defendant/appellant has appealed to this court. He filed 7 grounds of appeal. He has also filed his brief of argument in which he formulated 5 issues as follows:

“1. Whether the plaintiff in an action for declaration of title to land originated and tried in a Customary Court will succeed without other evidence, on the grounds that the Defendant did not cross-claim or counter-claim?

2. Is it correct to hold that evidence of long possession of land in dispute by the plaintiff negatives the evidence of pledge under Ozubulu Native Law and Custom?
3. Whether on the facts of this case it is correct to conclude and hold that the Customary Court Judges based their decision on what they found during the inspection, and that the findings were not given in evidence by the parties?
4. Should the learned Judge in the Court below disturb findings of facts and pronouncements on the custom which facts were not shown to be perverse or which custom were not held to be repugnant to natural justice, equity and good conscience?
5. Whether the Court below exercised its jurisdiction to conduct the case at all during annual vacation without the consent of the parties and indeed whether the principles of fair hearing were applied in refusing to grant the Respondent/Appellant adjournment to complete his case.”

Arguing his issue No. 1 learned counsel for the appellant submits that neither the failure of a defendant to bring a counter-claim in the Customary Court nor the award of “sole ownership” to him shall entitle the High Court to allow the appeal and set aside the judgment of the Customary Court Learned Counsel castigated the High Court for saying:

“In my view if the defendants knew that the land was pledged to the plaintiff’s family, they should have counter claimed and the matter placed properly before the court for determination. In so far as they did not do this I agree with the learned Senior Advocate that the Court below was wrong in their award to the Defendants.”

He urged this court to adopt the principle laid down in Oko v. Ntukidem (1993) 2 NWLR (Pt.274) 124; (1993) 2 SCNJ 33 at 45 in interpreting the judgment of the High Court. Reference was made by counsel to other cases which deal with the attitude of the High Courts towards the judgments of the Customary Courts. He refers to Mate Nono v. Tsutsu 10 WACA 89; Amadasun v. Ohenso (1966) 2 All NLR 155; Kunsu v. Udom (1990) 1 NWLR (Pt. 127) 421. All the authorities referred to deal with the fact that substantial justice is what should be looked for at the proceedings and judgments of Native or Customary Courts without regard to technicality. Learned Counsel submits that “counter claim is a common law concept and in Nigerian situation, it is a rule of procedure. It is a form that an action may take. It is not the substance or the action’” Let me dispose of this issue in the appeal. The learned trial Judge of the High Court after stating that “in his view, if the defendants knew that the land was pledged to the plaintiff’s family… “as quoted above in this judgment went on to say that “The Court is not a ‘Father Christmas’ and cannot dish out to a party what the party has not asked for. The ground therefore succeeds”. The learned Judge was dealing with the award of “sole ownership” of the land in dispute to the defendant/appellant who has not claimed anything in the Customary Court. There is a galore of authorities that a court should not award to a party what the party had not claimed. The reasoning of the Judge may not be the best when he said that “if the defendant knew that the land was pledged to the plaintiff’s family they should have counter-claimed.” The conclusion he came to however was a correct conclusion in law. It is not correct to say that the High Court placed undue reliance on technicality. The issue No. 1 of the appellant therefore fails.

On issue No. 2, learned counsel for the appellant argues that long possession by a pledgee or his successors in title does not give title of the land belonging to the pledgor to the pledgee. This assertion is a correct proposition of the law. The onus is however on the party who alleges a pledge to prove it against another person who is in possession of the land and who denies that he or his predecessors in title came into possession as a result of a pledge. Learned counsel submits that the lower court i.e. the High Court came to its wrong conclusion as regards the pledge because the defendant/appellant did not know when, the pledge was effected. He however contends that the evidence of the defendant/appellant was to the effect that the pledge took place during the life time of his own ancestors Ezike Nzewi. The said Ezike Nzewi from whom the defendant claims title pledged the land to Ezeokwesi, the plaintiff/appellant’s ancestor. Counsel submits that that answers the question as to when the pledge took place. He concedes that P.W.1 and 2 gave evidence of long possession of the land by the family of the plaintiff/respondent but that the P.W. 2 acknowledges that a pledged land can be redeemed at any time. The witness however maintained that the land was not on pledge. It is submitted by counsel that one has to compare the evidence of P.W. 2 with that of the defendant/appellant and his witnesses who said that it was to the grandfather of the plaintiff/appellant (Ezeokwesi) that the grandfather of the defendant/respondent (Ezike Nzewi) pledged the land. Counsel complained that the plaintiff/appellant or P.W. 2 did not trace possession beyond Ezeokwesi. In the light of this, counsel submits, the contention of the plaintiff/respondent’s counsel in the High Court that P.W.1 and P.W. 2 gave clear evidence of ownership cannot stand. Learned counsel concedes that the plaintiff/respondent was in possession and that the possession by his family was long but that there was no proof of ownership by the plaintiff/respondent. Mere possession, counsel submits, cannot defeat the defendant’s title. He refers to Adesanya v. Otuewu (1993) 1 NWLR (Pt.271) 414; (1993) 1 SCNJ 77 at 95; Ekretsu v. Oyebebere (1992) 9 NWLR (Pt.266) 438; (1993) 11/12 SCNJ 189 at 205; Nwololo v. Ukegbu (1997) 4 NWLR (Pt. 500) 4:16 at 448 – 449. He asserts that in the instant case, the defendant/appellant has better title by proving a pledge to the family of plaintiff/respondent. Counsel refers to a number of cases viz Akyirefie v. Breman-Esiam (1951) 13 WACA 331; Amoo v. Adigun (1957) 2 WNLR 55; Ikeanyi v. Adighogu (1957) 2 ENLR 39; Onobruchere & Anor. v. Esegine & Anor (1986) 1 NWLR (Pt. 19) 799; Nwagwu & Anor. v. Okonkwo & Ors. (1987) 3 NWLR (Pt. 60) 314.

Learned counsel submits that the principle of laches does not apply to Customary tenancy and refers to Gbadamosi v. Alhaji Bello (1985) 1 NWLR (Pt. 2) 211. He also maintains that the issues considered by the High Court in arriving at its decision that there was no pledge did not relate to the decision of the trial Customary Court. The High Court therefore went astray, and was making a case for the plaintiff/respondent, counsel contends. He refers to Odubeko v. Fowler (1991) 7 NWLR (Pt.308) 637; (1993) 9 SCNJ (Pt. 11) 184 at 196. He submits that the issue of the defendant/appellant having money but not redeeming the land or having got the land from another family did not got to trial and was not considered by the trial Court. The High Court was therefore precluded from raising the issues on appeal. See Inna v. Nta (1961) All NLR 576. If however the High Court felt that such issues must be raised to form part of the appeal, then opportunity would have been given for argument to both parties. See Kufi v. Balogun (1978) 1 SC 53. The plaintiff/respondent having failed to prove his title to the land, his case must fail, counsel concludes. See Hawa Gankon v. UCI (1993) 6 SCNJ 263 at 278; (1993) 6 NWLR (Pt.297) 55. On the contrary, a pledge was proved. The judgment of the High Court that pledge was not proved was a conclusion reached without the correct facts.

Arguing his issue No.3, appellant’s counsel submits that it is not correct to say that the trial court based its decision on what it saw during the visit to locus in quo but which facts were not given in evidence. He refers to Seismograph Services Ltd. v. Onokposa (1972) NSCC 231. After reviewing the process which the trial Customary Court went through, learned counsel submits that it was wrong as concluded by the High Court that the trial Customary Court based its decision on what it found during the inspection but which facts were not given in evidence. The court, counsel says, does not cease to be a court when it goes on inspection. Oral admissions made by a party during inspection shall be taken as if made in court room and could be taken into account. Counsel submits that the facts of the Seismograph case are clearly distinguishable from the facts of this case. He refers to Section 76(a)(ii) of the Evidence Act. The legal position about a visit to Locus in quo has been the subject of judicial decisions. Counsel refers to and relies on Badoo v. Ampung 12 WACA 439; Nwizuk v. Eneyok 14 WACA 354: Adeponle v. Ajalabe (1965) All NLR 215, Kunsu v. Udom (1990) 1 NWLR (Pt. 127) 421; Briggs v. Briggs (1992) 3 SCNJ 75; (1992) 3 NWLR (Pt.228) 128 and Enigwe v. Akaigwe (1992) 2 SCNJ 316 (Pt. 2); (1992) 3 NWLR (Pt.225) 505. Counsel finally submits that the conclusion of the High Court that the procedure adopted during the visit of the locus in quo was improper is wrong and not borne out by the record of proceedings of the trial court. Learned counsel submits that there are however other issues which go to the merits of the case other than a visit to the locus in quo.

On issue No.4 the appellant repeats the substantial issue in this appeal viz whether there was a pledge of the land in dispute or not learned counsel submits that pledge is a question of fact and therefore a finding on pledge is a finding of fact. As the High Court sat as a court of appeal, counsel contends, it had nothing to do with such finding unless it was shown that such finding was perverse. He refers to Mate Nono v. Tsutsu (supra); Akyin v. Egymah 3 WACA 65; Opera v. Sampson 3 WACA 169.

The respondent in his brief formulated 4 issues for determination viz:

“1. Did the appellant receive a fair hearing in the court below?