Benneth Ude Agu V. Maxwell Nnadi (2002)

LAWGLOBAL HUB Lead Judgment Report

O. AYOOLA, J.S.C.

On 18th May, 1998, the Court of Appeal, Enugu Division, dismissed the appeal of the appellant, Benneth Ude Agu, from the decision of the High Court of Anambra State which had on 25th June, 1990 dismissed his claim. He now appeals to this court.

“(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.”

The appellant’s case at the trial by his statement of claim was that the land which is subject matter of the action was pledged by his grandfather, one Ude Agu (or Ude Agu Ude) to the father of one Michael Chime, called Ozo Nnadi Ukwuani Nwachime, for a gun called “Ngeno”. On the death of the pledgor and the pledgee the land passed to the pledgee’s son. One Chime Nwagu who was half brother of the appellant’s grandfather and the trustee of the plaintiff by native law and custom redeemed the land with money he borrowed from the respondent and pledged the land to the respondent. By native law and custom, the appellant is entitled to redeem the pledge. It was by reason of his tender age that Chime Nwagu became his trustee. Chime Nwagu died without redeeming the land and the appellant is entitled to redeem the land. The parties to this appeal have voluntarily referred this matter to several conciliation and each of the conciliators have decided that the transaction was a pledge and that the pledge was redeemable by the appellant. The respondent accepted these settlements. However, sometime in 1982 the respondent started to erect a building on the land and refused the tender by the appellant of the redemption money.

The respondent’s case by his further amended statement of defence was that the land was property of Chime Nwagu Ude it being his share of Ude Agu Ude’s property by inheritance. Chime Nwagu Ude pledged the land to Ozo Ukwuani Nwachime. Chime Nwagu Ude redeemed the land in 1943 with money (N25) which he borrowed from the respondent and the land reverted to Chime Nwagu Ude. A few months after the land was redeemed, Chime Nwagu Ude in the presence of his wife and son granted him a half of the redeemed land. In 1946 the respondent commenced to erect a permanent building on the land, openly, and to the knowledge of Chime Nwagu Ude and several other persons. The respondent averred that the land was his by gift from Chime Nwagu Ude. A few years after he had erected a building on the land Chime Nwagu Ude pledged the remaining half of the redeemed land for N38 to one Ude and one Oji Agu. At the request of Chima Nwagu Ude that pledged land was redeemed by Chime Nwagu Ude in 1975 with money provided by the respondent. Upon redemption, Chime Nwagu’s son, Richard Ude took possession of the land undisturbed. While admitting that there were several efforts at settlement of the dispute, the respondent denied that the decisions of the bodies mentioned by the appellant were against him.

The issues joined by the parties at the trial were put clearly by the trial Judge in several passages of his judgment as follows:

“The case for the plaintiff therefore is that since the land in dispute was originally the property of his grandfather which he inherited on the death of his grandfather as his father had pre-deceased his grandfather, he is now entitled to redeem the land from the defendant. In short his case is that Chime Nwagu Ude acted throughout as his trustee because he was at that stage a minor and that it was in his capacity as a trustee that he pledged the land in dispute to the defendant. The case for the defendant briefly is that Chime Nwagu Ude came to him alone and borrowed the sum of N25 with which he redeemed the land in dispute from P. W. 1 and that thereafter Chime Nwagu Ude pledged the land in dispute to him. It is also the case for the defendant that Chime Nwagu Ude told him that the land in dispute was the portion of the land which he inherited from his father. It is also the case for the defendant that Chime Nwagu Ude finally gave the land in dispute to him as a gift in consideration of services which he rendered to him.”

“As I observed earlier what is in issue in this case is who infact pledged the land in dispute to the defendant was it Chime Nwagu Ude in his capacity as the owner of the land in dispute or was it in his capacity as a trustee. A further issue to be decided before the first one is who was the owner of the land allegedly pledged to the defendant – was it the grandfather of the plaintiff or was it Chime Nwagu Ude who was the half brother of the plaintiff’s grandfather. Here again I would like to refer to paragraph 6 in the plaintiff’s amended pleadings where he alleged that the land in dispute was the property of his grandfather. It is also my view that the onus is on the plaintiff to establish the fact that the land in dispute was the property of his grandfather which he inherited after the death of his grandfather.”

After considering the evidence adduced in support of the parties’ respective cases, the trial Judge found that the appellant had not discharged the burden of proving that either his great grandfather or his grandfather was the owner of the land in dispute or that he inherited the land. Indeed he rejected the main aspect of the appellant’s case, that is to say, that Chime Nwagu Ude acted as his trustee in his (Ude’s) dealings with the land. He dismissed the claim.

In the ensuing appeal to the Court of Appeal all the five issues raised came to a criticism of the learned trial Judge’s evaluation of the evidence and his findings of fact. This was manifest in the conclusion in the brief that: “The plaintiff has proved both in the pleadings and evidence all that the law requires of him in order to succeed in the case in the court below.” Salami, JCA, who delivered the leading judgment of the Court of Appeal held as the only issue in the appeal “whether Chime Nwagu Ude held the land in dispute as beneficial owner or as trustee for the appellant.” He concluded that the appellant having failed to establish his ownership of the land in dispute the issue of who was it that pledged the land “fades into obscurity.” Furthermore, he held that “the appellant having failed to show that he has a better title than the respondent his claim of right to redeem the pledged property predicated or pegged upon title to the land fails.” He confirmed the finding of the trial Judge on the question of trusteeship.

On his appeal to this court the appellant’s attack on these solid findings was that the statement by the court below that he had joined claims for injunction and trespass with his claim was erroneous, as was the consideration of only some and not all of the issues for determination argued by counsel for the appellant. It was argued that the court below was not right on the trusteeship issue.

It may be true that the court below may have erred when it was stated in the leading judgment that the appellant joined claims for injunction and trespass with the declaration that he was entitled to redeem the pledged property. However, there was no doubt that the appellant did put his title in issue. The question is whether the misconception as to the reliefs sought by the appellant had occasioned a miscarriage of justice. The appellant contends that it has because, as put in the appellant’s brief, “the Hon. Court of Appeal by this misdirection on the plaintiff/appellant’s 3rd prayer ultimately misconceived the appellant’s entire case, and wrongly held that he had to prove ownership or root of title (by traditional evidence); whereas in law what the plaintiff was required to prove was pledge (not title).” The respondent went into a rather elaborate but unnecessary argument to justify the statement that there was a claim for trespass. However, the issue can be resolved much shortly. Title can be put in issue in a suit by pleading expressly that the plaintiff’s claim is based on his title or impliedly by claiming damages for trespass and injunction. The appellant chose the former when he averred in paragraph 6 of his statement of claim that: “The said land in dispute was the property of the said Ude Agu.” Furthermore, the basis of the defence was that title in the property had passed not to the appellant but to Chime Nwagu Ude. It was on this state of pleadings and evidence that the trial Judge regarded ownership of the land as the prime issue. The error as to how title came to be in issue was inconsequential.

Salami, JCA, adverted to and gave comprehensive consideration to the question of title expressly pleaded by the appellant. In agreement with the trial Judge the Court of Appeal held that the appellant totally failed to prove his claimed ownership of the land. It needs be said that, ultimately, the value of an issue for determination lies in the effect of its resolution on the judgment. When the resolution of an issue in favour of the party who raised it will not affect the result of an appeal, the issue has no value. See Ifeanyi Chukwu Osondu Co. Ltd. v. Soleh Boneh (Nig) Ltd., (2000) 5 NWLR (Pt. 656) 322; 2000 SCNJ 18. To assess the value of an issue it is the totality of the judgment that has to be considered. It will not be of much value to the result of an appeal to resort to a complaint about a statement here and another there in the judgment appealed from if, at the end of the day, on a holistic reading of the judgment the appellate court is able to say that the court below had come to a correct decision, notwithstanding erroneous statements here and there. In Olubode & Ors v. Salami (1985) 2 NWLR (Pt. 7) 282; (1985) 16 NSCC (Pt 1) 392, 396, this court said (per Coker, JSC):

“It is not every error that would lead to a reversal by an appeal court. Such error must have substantially affected the result of the decision.”

In this case notwithstanding that there may have been error in stating that the appellant had claimed trespass and injunction, that error was inconsequential since the court below rightly considered the issue of appellant’s ownership of the land as basis of his claim to right to redeem the land and decided the issue against him.

It is evident that the following facts were not in controversy in the case:

(i) That Ude Agu Ude (appellant’s grandfather) owned the land.

(ii) That appellant’s father and Chime Agu were brothers.

(iii) That Chime Nwagu redeemed the land from the said Ozo Ukwuani Nwachime.

(iv) That the land was in the possession of the respondent from whom the appellant sought to recover it by redemption.

The following were the main questions in the case:

(i) Who pledged the land to Ozo Ukwuani Nwachime The appellant said it was his grandfather Ude Agu Ude but the respondent said it was Chime Nwagu Ude.

(ii) Was Chime Nwagu acting as trustee for the appellant when he redeemed the pledge The appellant said he was so acting because Ude Agu Ude was the owner of the land.

The respondent said Chime Nwagu was the owner and redeemed the land as pledgor in his own right.

Having regard to facts about which there was no dispute the material gap in the appellant’s case should have led to a quicker determination of the case. Assuming that, as the appellant alleged, the appellant’s grandfather Ude Agu Ude pledged the land, on the evidence that Ude Agu Ude’s children were the appellant’s father and his half brother, Chime Nwagu Ude, the appellant would still have had to plead and prove how the land devolved on his father alone to the exclusion of Chime Nwagu and, subsequently, to him in the personal interest in which he claimed. The findings of the trial Judge that the appellant did not plead that he inherited the land in dispute or prove that he inherited the land were enough to knock the bottom out of the appellant’s case. It is for the appellant who based his claim on exclusive right to Ude Agu Ude’s land to aver and prove such exclusive right. (See Atuanya v. Onyejekwe & Anor (1975) NSCC 90).

The argument by the appellant that the court below neglected to consider some issues raised before it is of no significance in view of the fundamental flaw in the appellant’s case. The questions

(1) who pledged the land

(2) if it was the appellant’s grandfather who pledged it, whether it was not the appellant who was entitled to redeem it;

(3) whether or not the trial Judge was right to have glossed over the evidence of Ozo Jones Ozougwu, the appellant’s deceased witness and

(4) whether or not from the state of pleadings and the evidence before the trial Judge the appellant was entitled to judgment, are rather inconsequential, the appellant having failed to prove his succession to the property.

The stress placed by the appellant on the contention that the court below did not consider certain issues was certainly misplaced. Perhaps the appellant would have found less cause for complaint had the court below set out the issues for determination and dealt with each of them seriatim. Granted that there is no rule of law or practice that dictates the form of a judgment or prescribes that a judgment is flawed unless it is in a particular form, a judgment is flawed if a vital issue in the case is left unresolved. Whether a vital issue has been left unresolved, however, depends on what the essential issues in the case are and how the court has dealt with them. A judgment is not bad because the Judge had not set out seriatim his reasons on each of the specific complaints. (See: Olubode & Ors v. Salami (supra) at p 396). The second of the issues which the appellant submitted was not answered by the court below was contingent on the answer to the first of the issues. Once it was found that it was not the appellant’s grandfather who pledged the land, the second of the issues would not arise. As to the third and fourth of the issues said to have been ignored by the court below, a careful reading of the judgment of the trial court, confirmed by the court below, shows that the appellant’s claim was rejected by reason of the deficiency in his pleading of his root of title. On this appeal the appellant persisted in his error that he did not need to prove his root of title. There were conflicting claims to ownership of the land. The respondent who was in possession having set up a rival title to that on which the appellant relied, both in regard to the pledge he alleged and to his right to redeem the pledge as a successor in title of Ude Agu Ude, the trial court and the court below were right in their opinions that title was in issue and that there was inadequacy in the appellant’s pleadings and in the evidence in regard to that issue.

It was manifest from the judgment of the trial Judge and that of the court below that the question of trusteeship would be of no consequence, other than, probably, of a tenuous academic interest, once it had been held that the appellant had failed to establish his succession to Ude Agu Ude’s land. In this regard, the evidence of the deceased’s witness as to the fact of ownership of the land or the fact of trusteeship would not rescue the appellant’s case from total collapse. Besides, the argument that the trial Judge ignored the evidence of the deceased witness is not convincing. The trial Judge stated that he made his findings on “the pleading and evidence” in the case. Nothing shows that he had excluded the evidence of the deceased witness.

At the end of the day, before this court are concurrent findings of fact by the trial Judge and the Court of Appeal. Apart from the complaint of the appellant clothed as inadequacies in how the court below had handled the issues for determination before it, the substance of the appeal is all on facts. The principle is now well established, elementary and long standing and does not need citation of authorities, that this court will not interfere with concurrent findings of fact unless there are shown exceptional circumstances. It is not an exceptional circumstance to show that another court may have come to a different conclusion on the same set of evidence. No exceptional circumstances are shown why this court should interfere with the concurrent findings of fact of the trial court and the court below.

In the result, this appeal must fail. I accordingly dismiss the appeal with N10,000.00 costs to the respondent.

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SC.154/1998