Chief Benson Ezike & Anor V. Chief Alphonsus Egbuaba (2019)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal Port Harcourt Division, in which the lower Court dismissed the appeal of the Appellants for lacking in merit. The lower Court, by that dismissal, affirmed the judgment of the High Court of Imo State holden at Orlu which entered judgment in favour of the Respondent herein in the consolidated suit Nos. HOR/18/93 and HOR/59/94. A synopsis of the facts as garnered from the record of appeal may be stated thus:-

The present Appellants as plaintiffs filed suit No. HOR/18/93 and in their statement of claim sought the following reliefs:-

“(a) Declaration that the plaintiffs are entitled to right of occupancy in respect of land known as ALA AZU OKWO OGWUGHTU EZINKWO land situate at Urnezikeduru Ezinkwo, Umuezennachi Ibiama within the jurisdiction of this honourable Court.

(b) Declaration that the said land was on pledge to defendant’s family from plaintiffs’ family.

(c) An order of this Honourable Court compelling the defendant to accept the sum of N2,000.00 (Two Thousand Naira) from the plaintiffs as redemption fee (in lieu of the lost sheep).”

1

The Respondent herein as defendant filed his statement of defence in suit No. HQR/18/93 and later, filed a cross-suit in HOR/59/94 wherein he claimed in the Amended statement of claim as follows:-

(a) A Declaration of the honourable Court that the plaintiff is the person entitled to the statutory right of occupancy over the piece and parcel of land known as and called “ALA AMA UMUIROHA” lying and situate at EZINKWO Village Ihioma, Orlu Local Government Area and shown in survey plan No. DS/25762/IM 304 D/94.

(b) N200 general damages for trespass.

(c) Perpetual injunction restraining the defendants by themselves, their servants, agents and/or privies from committing any further trespass on the said land or disturbing plaintiffs’ right of occupancy over same.”

The two suits were consolidated and the Appellants who were plaintiffs in HOR/18/93 remained the plaintiffs while the Respondent who was plaintiff in HOR/59/94 became the Defendant in the consolidated suits. At the trial, parties tendered oral and documentary evidence. The Appellants called five witnesses including 3rd plaintiff (now late) as PW1.

2

The Respondent called three witnesses including himself as DW1. At the conclusion of evidence and addresses of counsel, the learned trial Judge, in a considered judgment, found in favour of the Respondent in terms of his claim in suit No, HOR/59/94.

Dissatisfied with the judgment of the trial Court, the Appellants appealed to the Court below which heard the appeal on 25/1/2007 and in a considered judgment delivered on the 19th April, 2007, dismissed the Appellants’ appeal.

Further dissatisfied, the Appellants have appealed to this Court vide Notice of Appeal filed on 16th July, 2007 which contains three grounds of appeal.

The case of the Appellants relevant to this appeal is that the disputed land they call Ala Azu Okwo Ogwugwu Ezinkwo was pledged by their ancestor Okam Nwabu, to the ancestor of the Respondent, Oledibe Umejiure which they took steps to redeem but was rebuffed by the Respondent leading to a customary arbitration which found in their favour as shown in Exhibit F. On the other hand, the case of the respondent is that he is the owner in exclusive possession of the disputed land he calls Ala Ama Umuiroha and that following

3

Appellants’ allegation of pledge, the customary arbitration that looked into the matter found in his favour as shown in Exhibit H.

The Court below in its judgment affirmed the findings of the trial Court that the appellants failed to prove the allegation of pledge and that Exhibit F neither created an estoppel nor has it any binding force to be of probative value.

On 5th November, 2018 when this appeal was heard, the learned counsel for the Appellants O. C. Ucheaguwa, Esq., adopted the brief of the appellants he filed on 24th September, 2008 and on page eight thereof, he distilled three issues for the determination of this appeal as follows:-

1. Whether on the argument canvassed and the authorities cited by the Appellants on issue of pledge, the honourable Justices of the Court of Appeal were right when they affirmed the trial Court’s holding that the Appellants failed to prove the allegation of pledge.
2. Whether having due regards to the state of law on decisions of an arbitration panel their Lordships at the Court below were right in holding that Exhibit F could not operate as an estoppel.

4

Whether the importation “that the Appellants allege that the procedure adopted by the learned trial Judge was null and void” adversely affected the entire decision of the Honourable Justices of the Court below.The learned counsel for the Respondent also formulated three similar issues though couched differently thus:-

1. Whether the Court below was right in affirming the finding of the trial Court that the appellants failed to prove the allegation of pledge.
2. Whether the Court below was right in affirming the finding of the trial Court that Exhibit F could not operate as estoppel.
3. Whether the Court below was right when it held that “it is an afterthought for the Appellants’ learned counsel to allege that the procedure adopted by the learned trial Judge was null and void and at the same time urge on this Court to give judgment in favour thereof.”I shall determine this appeal on the three issues crafted by the appellants as also accepted by the Respondent.

ISSUE ONE:-

The main argument of the learned counsel for the appellants on this issue is that the Court below failed to invoke Section 16 of the Court of Appeal Act, 1976 to

5

review the evidence of pledge made at the trial Court, the learned trial Judge having failed to do so. According to him, the three issues formulated by the Court below did not take into account the issue of pledge which he had made as one of the grounds of appeal. Learned counsel faulted the cases cited by the Court below on issue of pledge because the learned Justices failed to link the decision on those cases to his complaint. That although the Court below touched on the issue of pledge in its judgment, the Justices did not do so in line with the Appellants complaint on that point. He submitted that his complaint was that the trial Court never considered the issue of pledge as the trial Judge was quick to describe it as “a mere hoax or figment of imagination.” It is his view that the Court below ought to have invoked Section 16 of the Court of Appeal Act to do justice, relying onEkpa & Ors v Utong & Ors (1991) 7 SCNJ 170 at 183 paragraphs 5-15.

On the failure of the Court to tie decisions to the facts of the case, he submitted that it is improper to proceed to discuss law without making findings on any necessary facts as foundation,

6

relying on Management Enterprise Ltd & Anor v Otusanya (1989) 4 SCNJ 110. He urged the Court to resolve this issue in favour of the appellants.

In response, the learned counsel for the Respondent submitted that the Court below re-appraised the evidence of the appellants vis-a-vis the averment in the parties pleadings and the submission of counsel in their respective briefs of Argument and agreed with the submission of learned counsel for the Respondent that the Appellants failed to prove allegation of pledge because their evidence is bereft of the essential elements of a customary pledge, supporting same with litany of decided cases. According to him, the affirmation of the findings of the trial Court that appellants failed to prove issue of pledge constitute concurrent findings of fact by the two Courts below for which this Court does not interfere lightly, referring to the cases of Spiess v Oni (2006) All FWLR (pt 329) 989 at 1002; Attorney General Lagos State v Eko Hotels Ltd (2006) All FWLR (pt 342) 1398.

The learned counsel conceded that the lower Court did not formulate a separate issue directly on pledge but that it completely covered

7

same under issue 1 as framed which is within the Court’s discretion.

He contended that although issue of pledge was mentioned in the pleadings, the names of the witnesses to the pledge and putting the pledgee into possession were not mentioned in evidence but in the address of counsel which he submitted cannot take the place of evidence. Moreso, that the evidence of the Appellants’ witnesses contradicted themselves on material particular which rendered it unreliable and that the two Courts below were right to reject same, relying on Jack v Whyte (2001) FWLR (pt 43) 247.

Learned counsel urged this Court to uphold the findings of the two Courts below that since the Appellants could not establish their family title over the land in dispute, their ancestor could not have pledged same out under the principle of nemo dat quod non habet. He urged the Court to resolve issue 1 against the Appellants.

The learned counsel for the appellant started his argument on this issue by stating that the Court below failed to invoke Section 16 of the Court of Appeal Act to review the evidence of pledge which the trial Court failed to do.

8

Contrary to that assertion, the record of appeal shows that the trial Court took time to discuss the issue of pledge and came to the conclusion that it was a hoax as the appellants failed to establish their title to the land in dispute. On pages 238 – 239 of the record, the learned trial Judge made the following findings:-

“In the final analysis, the Court finds as a fact, that the plaintiffs have failed to establish their title to the land in dispute. They therefore are not in possession. The next issue calling for determination is if there was an (lulu Aturun) transaction between Oledibe Umujiure and Okan Nwabu for which the land was pledged. It is the considered view of this Court, that if the plaintiffs cannot establish their family title to the land in dispute, their ancestor Okan Nwabu could not in law have pledged the land to the family of the defendants for any reason. A man has no possession, of that, the origin of which, he cannot prove. He cannot give what he has not. The pledge story is a hoax and mere figment of imagination.

However, the Court shall expatiate on this because of the reliance of counsel for the plaintiffs placed on Exhibit F in his address..

9

The trial Court thereafter went on to consider the issue of pledge and arbitration as contained in Exhibits F and H. It is erroneous for counsel for the appellants to argue that issue of pledge was not discussed by the trial Court. On page 449 of the record, the Court below, after reviewing the judgment of the trial Court, held as follows: –

“Thus, the Appellants having failed to prove the allegation of pledge and vis – a – vis possession of the disputed land, I am of the view that the learned trial Judge was right in coming to the conclusion that: –

“In the final analysis, the Court find as fact, that the plaintiffs (Appellants) have failed to establish their title to the land in dispute.”

I am satisfied that, in view of the painstaking analysis of the Evidence and findings of facts by the learned trial Judge alluded to above, the Appellants’ allegation that the learned trial judge did not appreciate issues before him, especially regarding the pledge in question, is most undoubtedly preposterous. it is evident from the record that the Appellants simply have failed to discharge the onus placed there upon under Section 146 of the Evidence Act.”

10

I have reproduced those portions of the judgments of both the trial and Court below to show that the two Courts below actually considered the issue of pledge raised by the appellants at the trial Court. The concurrent findings of the two Courts below is that the appellants failed not only to prove issue of pledge but also failed to prove their title to the land which could have enabled their ancestors to pledge the land in the first place.

Let me take this matter further. To establish the existence of pledge under Customary Law as in this case, the party asserting same is expected to prove the following: –

1. That there was a pledge;
2. The parties to the pledge;
3. That the pledge took place in the presence of witnesses;
4. That there was a pledge sum;
5. That the pledgee was put in possession; and
6. The mode of redemption of the pledged property.

As I said earlier, it is the party who asserts that the land in dispute is under pledge arrangement who must adduce sufficient evidence to establish his claim. See Adjei v Dabantea (1930) 1 WACA 63, Akuchie v Nwarnadi (1992) 8 NWLR

11

(pt. 257) 214 at 226. Allegation of pledge is an issue of fact to be proved by evidence and the evidence needed in the circumstance must be a credible one. Learned counsel for the respondent had insisted that the appellants failed to state names of witnesses to the pledge and the fact of putting the pledgee into possession. According to him, this piece of evidence was introduced by counsel in his address which the law frowns at. The appellants have no response to this. The truth is that there is no such evidence on the record else, they would have refuted it and referred to the pages of the record which it can be found.

Again, as was pointed out by the learned counsel for the respondent, it is apparent in the evidence of the Appellants’ witnesses i.e. PW1 and PW3, that they contradicted themselves on the parties to the Ilulu Aturu transaction that gave rise to the alleged pledge and the circumstances that led to the pledge, thus rendering the Appellants’ evidence on the pledge unreliable. No wonder the learned trial Judge held it to be a hoax and affirmed by the Court below.

Also, the findings of the learned Trial Judge which was upheld by the Court below

12

that since the appellants failed to establish their family title over the land in dispute, their ancestor could not have pledged same out under the principle of ‘nemo dat quod non habet’ has not been appealed against. This was a far reaching finding. I am surprised that it did not occur to the appellants that failure to appeal against the findings that they could not prove their root of title to the disputed land was weighty enough such as could weigh on the mind of an appellate Court. The law is trite that where a party has not challenged a finding by way of appeal, that finding stands. See Dabo v Abdullahi (2005) 2 SC (part 1) page 75, (2005) 7 NWLR (pt. 923) 181, Leventis Technical v Petrojessica (1999) 6 NWLR (pt 605) 45, (1999) 4 SCNJ 121 at 127.

On the whole, it is my well-considered opinion that the appellants have not shown cause why issue one should be resolved in their favour. Accordingly, issue one is resolved against the appellants.

ISSUE 2:-

The main thrust in the second issue is whether Exhibit F could operate as an estoppel. At the trial Court, the appellants urged the learned trial Judge

13

to hold that Exhibit F created estoppel per rem Judicata while the Respondent urged to the contrary. The trial Court held as follows:-

“On a careful consideration of the evidence of 3rd PW, one of the arbitrators on the issue of the Defendant accepting the content of Exhibit F he was not positive and conclusive. This Court is of the view that if the Defendant accepted the outcome of the decision in Exhibit F, they could have done some positive acts to show that. In the circumstances, it is not possible for the Court to find as a fact that the purported decision in Exhibit F was accepted by the Defendants who were thereafter sued to Court.” (See page 240 of the record of appeal).

On page 450 of the record, the Court below said of the matter more poignantly as follows:-

“Both Exhibit F and H were inconclusive and thus could not in law operate as an estoppel per rem judicatta. Thus the learned Trial Judge was right in discountenancing the said Exhibit F on the ground that it neither created an estoppel nor has got any binding force to be of probative value.”

14

Stating the meaning of estoppel per rem judicata His Lordship, Uwais, JSC (as he then was) in Adigun & Ors v Governor of Osun State & Ors (1995) 3 NWLR (pt 385) 513 (1995) LPELR 178 (SC) at pages 24-25 paragraphs C – A said as follows:-

“I think it is relevant to quote here the statement of the principle of estoppel, per rem judicatam as contained in the book – res judicata by Spencer – Bower and Turner, 2nd Edition, Chapter 1 paragraph 9:- The Rule of estoppels by res judicata, which, like that of estoppels by representation, is a rule of evidence, may thus be stated; where a final judicial decision has been pronounced by either an English or (with certain exceptions) a foreign, judicial Tribunal of competent jurisdiction over the parties to, and the subject matter of the litigation, any party or privy to such litigation, as against any other party or privy thereto, and, in the case of a decision in rem, any person whatsoever as against any other person, is estopped in any subsequent litigation from disputing or questioning such decision on the merits, whether it be used as the foundation of an action, or relied upon as a bar to any claim, indictment or complaint, or

15

to any affirmative defence, case, or allegation, if; but not less the party interest raises the point of estoppel at the proper time and in the proper manner.”

In other words, Estoppel per rem judicata is a rule of evidence whereby a party (or his privy) is precluded from disputing in any subsequent proceedings matters which had been adjudicated upon previously by a competent Court between him and his opponent. See Hameed A. Toriola & Anor v Mrs. Olusola Williams (1982) 7 SC page 27 (1982) LPELR – 3258 (SC), Morinatu Oduka & Ors v Kasumu & Anor (1968) NWLR 281.

The record of appeal shows that the Respondent made Exhibit H on 15/12/92 while the Appellants made theirs on 13/02/93. In both Exhibits H and F, the arbitrators gave the land to the respondent and appellants respectively. Secondly, in both documents, the parties were to swear to an oath to authenticate their ownership of the land, No such oath has been taken by either party in respect of any of the exhibits. The Court below has this to say on the issue:

“It’s rather obvious from the record that Exhibit H was first in time.

16

It is also in record that during the address, both counsels had contended in the trial Court that both Exhibits F and H were inconclusive and none of them could thus create estoppel.”

The Court went further to assert thus:

“As alluded to above, Exhibit H was first in time. Thus, it was rather preposterous for the Appellants to have resorted to the second arbitration which allegedly resulted in Exhibit F. Both exhibits “F and H” were inconclusive and thus could not in law operate as an estoppel per rem judicata. Thus the learned trial Judge was right in discountenancing the said Exhibit F on the ground that it neither created an estoppel nor has it got any binding force to be of probative value.”

It is trite, that where the arbitrator’s decision was not agreeable to both parties as in this case and where also the arbitration was inconclusive, then it cannot be binding on the parties and cannot create estoppel. See Nwosu v Nwosu (1996) 2 NWLR (pt. 4280) 64 at 76.

In view of all I have stated above in this issue, I hold the view that the Court below including the trial Court were right to hold that Exhibit F did not operate as an estoppel same having not been accepted by all the parties and not

17

having been conclusive and if I may add something, the said Exhibit F coming later in time. Issue 2 is thus resolved against the appellants.

ISSUE 3:-

The third issue is whether the importation ”that the Appellants allege that the procedure adopted by the learned trial Judge was null and void” adversely affected the entire decision of the honourable Justices at the Court below.

It is the submission of the learned counsel for the appellants that this issue was not a mere slip, rather a general opinion the Court below formed over the entire appeal and the case of the appellants before it. That this can be seen by the mere fact that it was represented at the concluding part of the judgment of the Court below and not specifically tied to any issue formulated by them or drawn from any ground of appeal filed by the appellants before them. He contended that the purport is that the learned Justices from the onset formed opinion that the Appellants complained of a procedure that is null and void and decided the appeal with that frame of mind without approaching issues placed before them. He submitted that it is wrong for a Court to form a pre – opinion

18

about an entire case outside what was presented before it, relying on the case of Military Governor v Nwauwa (1997) 2 SCNJ 60 at 88 paragraphs 30 – 40.

In response, learned counsel for the respondent submitted that it was wrong for the appellant to make the above criticism because his grounds of appeal Nos. 1, 2, 3, 4, 5 and 9 complained of procedural transgressions committed by the trial Court and as such, the Court below was right to make the observation complained of. While the appellants urged this Court to resolve this issue in their favour, the Respondent urged other wise.

After resolving issues, one and two against the appellants, that would have been the end of the matter because the first two issues touch on the reasons for the judgment of the Court below. This last issue, to my mind is an addendum which, sadly does not aid the case of the appellants. As was rightly submitted by the learned counsel for the Respondent, a careful examination of grounds 1, 2, 3, 4, 5 and 9 in the notice of appeal reveal complaints of procedural transgressions committed by the learned trial Judge. In those grounds, the appellants complained that the trial

19

court treated the consolidated suits as a merged suit, ignored Exhibit F, showed lack of perception on the issue of pledge raised and canvassed by the appellants, was perverse in evaluation of evidence, failed to pay attention and concentration during proceedings, suo motu raised the issue of trespass and gave decision thereon without evidence and pleadings in support.

Quite apart from the above, the learned counsel for the appellants in the concluding part of his argument on issue 1 at the Court below made the following submission on page 387 of the record: –

“It is submitted that the learned trial Judge did not follow the procedure laid down by the Supreme Court in Mogaji & Ors v Odofin & Ors supra. He behaved as if the task before him was to attack and condemn the pleadings and the evidence of the Appellants, even without balancing them against the evidence of the Respondent. As a result, he failed to do what was expected of him as a trial Judge, namely, to appraise and evaluate the evidence before him and after separating the chaff from the wheat, to put the totality of admissible evidence on the imaginary scale.

20

Having regard to the foregoing, it is submitted that the learned trial Judge approached the evidence before him and the whole trial in a most improper and unsatisfactory manner.”

From what is available in the record of appeal, particularly the complaint of the appellants reproduced above, it seems to me that the learned counsel for the appellants lost trend of his argument before the lower Court. With his complaint in the grounds of appeal alluded to above and his submission before the lower Court reproduced above, I am of a firm view that the observation by the Court below was a fair comment on the appellants’ case and does not warrant making it an issue before this Court.

By way of emphasis, the main decision of the trial Court is that the appellants failed to prove their root of title in the disputed land, and as such they could not have lawfully made any pledge of the land to the Respondent as you cannot give what you do not have rendered in latin maxim as nemo dat quod non habet. They failed to appeal against such a serious finding of the trial Court but pursued shadows in proceduralism. I think the Court below was right in making that comment which in my

21

opinion did not obliterate their sense of duty and justice. Accordingly, this issue is resolved against the appellants.

Having resolved the three issues against the appellants, it is my well-considered opinion that there is no merit in this appeal. It is hereby dismissed by me. I affirm the judgment of the Court of Appeal delivered on 19th April, 2007. I award costs of N200,000 against the appellants.

Appeal Dismissed

---

SC.231/2008