Chief O. Oronsaye V. Chief Alfred Osula & Anor (1976)

LawGlobal-Hub Lead Judgment Report

MADARIKAN, JSC.

In Suit No. B/73/70 in the High Court, Benin, the plaintiff/appellant endorsed his writ as follows: – “The plaintiff’s claim against the defendants is as follows:-

1. For a declaration of title to the property situate, lying, being and known as No. 33, Yakubu Gowon Street, (Mission Road), Benin City. The said parcel of land was property of the plaintiff’s father, Chief Oronsaye (deceased) late Eholor of Isi, who pledged same to Chief Ekhaguere (deceased) late Osula of Benin ancestor of the 1st and 2nd defendants for a loan of £100 (one hundred pounds).

2. For an order of this Honourable Court for the plaintiff to redeem the said property on payment of the said loan of £100 to the first defendant.

3. For possession of the said property, which lies within the Benin Judicial Division is about £10.”

Pleadings were ordered and they were duly filed and delivered. In paragraphs 1, 2, 3, 4, 5, 6, 7, 10 and 19 of the plaintiff’s amended sttaement of claim, he averred that: –

“1. The plaintiff is a retired Public Servant and the present Eholor of Isi. His Benin City address is 30, New Lagos Road, New Benin, Benin City.

2. The plaintiff is the eldest son of Chief Oronsaye Eguabor the late Eholor of Isi, his immediate predecessor in title.

3. The plaintiff and the defendants are cousins.

4. The 1st defendant is the present Chief Osula of Benin and is resident at 33, Lagos Street, Benin City.

5. The 1st defendant is the eldest son of Chief H. I. Osula his immediate predecessor in title. The said Chief H. I. Osula was the eldest son of late Chief Ekhaguere, Osula of Benin.

6. The 2nd defendant is the eldest son of late Gabriel Edobor Osula. Late Gabriel Edobor Osula was the 5th son of late Chif Ekhaguere.

7. The 2nd defendant is a Manager in a reputable company and is at present resident at No. 33, Yakubu Gowon Street (Mission Road), Benin City.

10. About 1913, the plaintiff’s father, late Chief Oronsaye Eguabor built the house now know as No. 33, Yakubu Gowon Street, Benin City. 19

. The 1st defendant is at present the head of the Osula family.”

These paragraphs were admitted by the defendants in their respective statements of defence. For his part, the 1st defendant also admitted paragraph 11 of the Statement of Claim which we now reproduce: – “11 After the said house was built the plaintiff’s father and his family lived there until about 1917.”   And for his part, the 2nd defendant also admitted paragraphs 10a, 10b, and 20 of the statement of claim which we reproduce: –   “10a. That the said house in its original form had mud walls roofed with iron sheets. It also contained apartments with a corridor running through it from the front door to the back door. The said eight apartments consisted of two parlours, three bedrooms, one box room and one shop with a store. 10b. The second defendant however has built extensions to this original house on the side having boundary with Lawani and Igodan and also at the rear of the building having boundary with Omere. 20. The present occupant of the said No. 33, Yakubu Gowon Street, Benin City is the 2nd defendant and a descendant of Chief Ekhaguere, the lender.”

The plaintiff staked his claim on the following facts. That he is the eldest son of the late Chief Oronsaye Eguabor to whom the land in dispute was donated by his senior brother, Chief Omere, in 1913 for services rendered. The land was demarcated in presence of witnesses. It was the contention of the plaintiff that these acts were in keeping with Bini Customary Law relating to inter vivos gift of land. About 1913, the plaintiff’s father erected a mud building on the land. The plaintiff’s father was installed as a chief in 1917 and it would appear that to enable him to defray the expenses incurred by him, he had to borrow £100 from his first cousin, Chief Ekhaguere, and to pledge the land in dispute together with the building thereon. It was as a result of this transaction that Chief Ekhaguere who was the 2nd defendant’s grandfather entered into possession of the premises.    The plaintiff’s father had not redeemed the property when he died in 1945; but it was part of the plaintiff’s case that – “under Bini Customary Law, a pledge is redeemable from the pledgee or his successors at any time by the pledgor or his successors.”   When the plaintiff sought to redeem the pledge in 1963, the 1st defendant refused to accept the refund of £100, and, in spite of protests by the plaintiff, the 2nd defendant extended the building on the land. The grounds on which the plaintiff based his claims were spelt out in greater detail in paragraphs 30 and 36 of the Statement of Claim. They read as follows:   “30. The plaintiff will at the trial rely on Bini Customary Law to the effect that the 1st defendant as the present successor to late Chief Ekhaguere, Osula of Benin is the proper person from whom the property should be redeemed and cannot repudiate the plaintiff’s right as the present successor to the late Chief Oronsaye Eguabor to redeem the said property, under the pledge.   31. The plaintiff avers that pursuant to his efforts to redeem the said property he wrote through his solicitors to the 1st defendant (copied to the 2nd defendant) by a letter dated 15th September, 1970.

In the said letter the plaintiff attached a cheque for £100 (one hundred pounds) as refund of the said loan. But the first defendant replied in a letter dated 5th October, 1970 refusing to accept the refund and returning the cheque for 100 (one hundred pounds). 32. The plaintiff will contend at the trial that with the full awareness of the plaintiff’s rights over the said property the 2nd defendant proceeded against protests from members of the family to build extensions to the original house known as No. 33, Yakubu Gowon Street (Mission Road), Benin City. 33. The plaintiff is the Eholor of Isi having performed the burial ceremonies of his late father and having been duly installed by his Highness the Oba of Benin and the Edionisi. 34. The plaintiff will contend at the trial that as eldest son of late Chief Oronsaye Eguabor he as heir under Bini Customary Law is entitled to the property of his late father including the house and premises known as No. 33, Yakubu Gowon Street (Mission Road), Benin City. 35. The plaintiff contends that the 2nd defendant went into possession of the said premises as descendant of late Ekhaguere the pledgee and therefore cannot acquire an interest on the said premises higher than the interest which the said pledgee had in the said property. 36. The 1st defendant is the present Osula of Benin by virtue of the fact that he is the eldest son of his father who was heir to late Chief Ekhaguere. Under Bini Customary Law the 1st defendant is the head of the Osula family and the living successor of Chief Ekhaguere on whom the rights and property of late Ekhaguere devolve.”    The 1st defendant averred in his statement of defence that the transaction between Chief Oronsaye Eguabor and Chief Ekhaguere was not a pledge of the land in dispute but “an outright purchase”. Similarly, the 2nd defendant contended in his statement of defence that “Chief Ekhaguere (Osula) bought the said house and premises about 1916” from Chief Oronsaye Eguabor and took immediate possession thereof.

It appears to us convenient at this stage, to refer to the judgment. After quoting copiously portions of the pleadings, the learned trial judge made the following observations in his judgment: –    “It is thus clear from the pleadings that the issue raised is one of the nature of transaction whereby the defendants’ grandfather, Chief Ekhaguere, the Osula of Benin, acquired possession of the property.”   He continued thus: – “The main question for determination is this. Was the transaction a pledge or was it a sale?”, and proceeded to examine the evidence meticulously. At the end, he found that the plaintiff had failed to prove that the transaction was a pledge and believed the evidence of Alohan Ogbomo (2nd defendant’s 1st witness) who was the only eye-witness to the transaction and whose testimony was that the transaction was a sale of the property in dispute by Chief Eguabor to Chief Ekhaguere. The learned trial judge also found that under Bini Customary Law: –

“(1) land and house can be pledged for a loan and that possession is delivered up on receipt of the loan.

(2) pledges of land are redeemeable at any point of time so long as the successor to the pledged property is traceable in the family of the pledgor. This appears also to be the customary law in Ghana. See Agbo Kofi v. Addo Kofi 1. WACA 284.

(3) The ownership as distinct from possession of pledged property does not pass from the pledgor to the pledgee; and

(4) The pledged property is redeemed on payment of the loan for which the property was offered as security and delivered to the pledgor.”   and before dismissing the plaintiff’s claims with costs, he expressly found that failure to prove a pledge was fatal to the claims for declaration of title and possession.

The plaintiff has appealed against that decision.   The complaint in the 1st ground of appeal was that: –

“1. The learned trial judge erred in law in holding that the transaction in question was a sale to the 2nd defendant’s grandfather under Bini Customary Law when the evidence of the transaction on which he relied (that of 2nd defendant’s 1st witness quoted at p. 265) is not in accordance with the evidence of such Bini Customary Law as given by the expert – 11th plaintiff’s witness – at p. 168.”  P.W. 11 is a Bini Traditional Chief. He is a member of the Oba’s Council. He gave evidence of the types of property that could be used as pledge and how such pledge could be redeemed. We may observe in passing that he diminished the value of his evidence when he said under cross-examination: – “I have never decided any dispute on pledge of property. Pledge is a matter of older times. I only heard of how it was and the law governing it.”   Though the evidence of this wtiness could be of some assistance in determining under what circumstances a pledge could be redeemed, we have scrutinized his evidence and were unable to see how it could be of any assistance to the court in deciding whether the transaction in this case was a pledge or sale. This ground of appeal must therefore fail.

The complaint in the 2nd ground of appeal was directed against the portion of the judgment at page 265 where the learned trial judge said: “The plaintiff was neither the pledgor nor the vendor and as such I will not say that the onus of proof of title shifts from the plaintiff to the defendant on proof that the property was originally owned by plaintiff’s father.”   Here the learned trial judge considered the case on the basis that the onus of proof of title did not shift from the plaintiff to the defendant. Learned counsel for the appellant has sought to impugn the judgment on the ground that the judge had failed to consider what would be the position if the onus had in fact shifted from the plaintiff to the defendant. We cannot accede to this argument as it appears to have overlooked the portion of the judgment where the learned judge adequately dealt with the point when he said: – “Even if it (i.e. onus of proof) shifted it has been discharged for I said earlier that the evidence of Alohan Ogbomo proving sale to defendants’ grandfather has not been shaken and I have no reason to disbelieve and reject it.” This disposes of both the 2nd and 3rd grounds of appeal which were argued together.

Finally, we shall consider the arguments canvassed in support of the 4th and 5th grounds of appeal which relate to facts. The determination of the nature of the transaction between Chief Eguabor and Chief Ekhaguere was essentially a matter of fact. So also was the determination of the appropriate customary law – (See Section 56 of the Evidence Law).

We are satisfied that the learned trial judge reviewed the evidence in a painstaking manner and arrived at conclusions on the facts which were amply supported by the evidence. We can find no good cause to interfere with the findings of fact. The 4th and 5th grounds of appeal must also fail.   PAGE| 7   In the result, this appeal fails and it is hereby dismissed with costs to the defendants/respondents assessed at N297.00. 

Other Citation: (1976) LCN/2297(SC)