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.