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.
- 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?
- 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?
- 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?
- 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?
- 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?
- Was the court below right in holding on the printed record that the defendant did not prove that the land in dispute was ever pledged to the plaintiff’s forebear?
- Was the court below wrong in holding that it was not competent for the customary court to order the redemption of the land in dispute since the said relief was not asked for by the defendant?
- Was the court below right in holding that the inspection of the land in dispute was not conducted as required by law?” Although the appellant mentioned fair hearing as the 5th issue in his brief. He would seem however to have abandoned it in his argument in the brief. He argued four issues in his brief and filed no salvo on his 5th issue on fair hearing. He would be taken to have abandoned his contention on fair hearing. Where an issue is formulated but not argued or projected, and not a word is said in support of it, the issue is taken to have been abandoned. Assuming that the appellant did not abandon the issue, I find nothing in the record which offends the principle of fair hearing. I am of the view that the issue is formulated without any seriousness.
On issue No.2 of the respondent learned Senior counsel for the respondent submits thm both statute law and Customary Law recognise that a person in possession of land for many decades as found by the Customary Court is presumed to be the owner of the land until the contrary is proved. He refers to Ezendu v. Obiagwu (1986) 2 NWLR (Pt.21) 208; (1986) 3 SC 1 at 30 – 31.
The respondent’s third issue challenges the award of title “sole ownership” of the land in dispute to the appellant who did not claim title to the land in dispute. Equally too, the order of the Customary Court on the respondent to accept a redemption money of N4 in respect of the said land when there was no claim for any such order was challenged. The respondent contends that the Customary Court had no right to make the order it made since there was no claim to that effect by the appellant.
The 4th issue of the respondent relates to the visit of locus in quo by the Customary Court. Learned Senior Counsel argues that trials in our civil courts are not inquisitorial including trials in the Customary Courts. There were no doubts to clear for which the Customary Court substituted the evidence it heard in the court with what it saw in the locus.
At the hearing of this appeal it was brought to the notice of the court how the appellant’s counsel has consistently absented himself from the court occasioning several adjournments which have delayed the disposal of the appeal filed since 1993. When the appeal was called, counsel for the appellant was again absent. Since the parties had filed their briefs we took the appeal as having been argued pursuant to Order 5 Rule 9(e) of the Court of Appeal Rules.
I shall deal with issue Nos. 1, 2 and 4 of the appellant together with issues 2 and 3 of the respondent. The issue of pledge or no pledge is the substantial issue in this case, and indeed, in this appeal. As was very rightly put by learned counsel for the appellant “The question on which this appeal rotates substantially is whether there was a pledge or not.” The question of pledge or no pledge is, as students of physics will put it, the fulcrum on which this appeal turns. Other issues raised by the appellant or respondent are largely peripheral for, if indeed there is a pledge of land by the family of the defendant/appellant to the family of the plaintiff/respondent, the plaintiff/respondent cannot get the declaration he has claimed or the injunction. If on the other hand there is no proof of a pledge, the claim will succeed, and the plaintiff/respondent will get the declaration and injunction claimed. I have made the above proposition because the defendant/appellant admits that the plaintiff/respondent is in possession of the land in dispute and has been so for some decades. It has been said that ‘possession is nine-tenths of ownership.’ Accordingly, plaintiff/respondent who is conceded by the defendant/appellant to be in possession for so long a time can fold his hands and say to the defendant/appellant. If you know that you are the owner of the land, prove it.’ Thus, in Ezeudu & Ors v. Obiagwu (supra) the Supreme Court per Oputa JSC stated the law as follows:
“By admitting that the respondent’s ancestors were, and that the respondent is still, in possession of the land in dispute or even part of it but as pledgees the onus of proof that those in admitted possession were not the owners of the land in dispute shifted to the defendants/appellants by the operation of section 145 of the Evidence Law Cap. 49 of the Laws of Eastern Nigeria 1963 in force in Imo State. The trial court should have called upon the defendants to begin. not the plaintiffs who should not have been called upon to establish what the law presumes in their favour.”
See also Section 45 of the Evidence Act.
The onus therefore is on the defendant/appellant who alleges a pledge of the land to prove it.
Proof of a pledge is a question of fact to be given in evidence. Being a question of fact, an appellate court cannot disturb a judgment based on a finding of such fact unless such a finding is perverse. Such a finding is perverse if it is not supported by evidence led in the case.
In this case on appeal at no time did the appellant suggest to the plaintiff/respondent when he (plaintiff/respondent) was giving evidence that the land was on pledge to the plaintiff/respondent. It should be appreciated that there are no pleadings in the customary court. Accordingly, a plaintiff would not know the defendant’s defence when he (the plaintiff) is giving evidence. It is for the defendant to challenge the plaintiff’s case by putting his defence to the plaintiff while the plaintiff testified. This was not done. The plaintiff testified and stepped out of the witness box without knowing anything about the alleged pledge. If the plaintiffs five witnesses, it was only to the P.W. 3 that the defendant mentioned a pledge. Even at that the suggestion was that it was the self same P.W. 3 who advised the defendant (appellant) about the alleged pledge. Part of the evidence o under the cross-examination of P.W. 3 at page 10 of the record lines 2 – 9 ran thus: “Defendant to witness: Do you remember that you were the one who called me to advise me to go and reclaim this land?
Ans. by witness 3: It is a lie.
Defendant questioned to witness 3: Are you aware that a land pledged to somebody can be reclaimed at anytime?
Ans. Yes – it could be reclaimed but the land in dispute was not pledged.”
From the above evidence it would seem that the defendant did not seem to know about the pledge until advised by P.W. 3 to reclaim the land. P.W. 3 however described the suggestion as “a lie.” Thus, throughout the plaintiff’s case, no issue or serious issue was made of this alleged pledge to the plaintiff/respondent. The issue of pledge was seriously raised only during the defence and equally seriously challenged under cross-examination. The Customary Court gave judgment for the defendant on the above facts. It did not dismiss the plaintiff’s claim. It awarded title of the land to the defendant/appellant. It did not stop there. It ordered the respondent to accept N4 as the redemption money for the land. None of these awards was claimed by the appellant. There was no counter-claim. Considering the totality of the judgment and the award made thereon, it is my view that the finding of the Customary Court on the facts was perverse, and the awards made thereon wrong in law. The High Court was therefore right in setting aside the judgment whether, with the awards made thereon. The High Court was right in saying that the court is not “a Father Christmas,” for how can a court proceed to award to a defendant who has claimed no title to the land, the title to the land in dispute and also order the plaintiff to accept a redemption money. Such a judgment not predicated on a fair assessment or evaluation of all the evidence in court is perverse. The judgment shows that the Customary Court swallowed the case of the defendant without regard to the plaintiffs case.
On the 3rd issue of the appellant and the 4th issue of the respondent both of which deal with the visit to the locus in quo, it is my view that the purpose of locus in quo is to enable the court to see (with its eyes) whether what it had heard (with its ear) was true or false. As it was well put in Nwizuk v. Eneyok (supra), the purpose of visiting the locus was for the court “to substitute the eye for the ear.” It could be very helpful as the truth begins to come out while lies begin to crumble. There are however procedures which must be followed. The substitution of the eye for the ear must be in respect of evidence which the ear has heard in the court room. A visit to the locus must not be an occasion for fresh evidence. If fresh evidence is recorded during the visit, the other party must be allowed full scale cross-examination on it. A court visiting the locus in quo must therefore be careful not to take fresh evidence and acting on it without giving the other side an opportunity of rebuttal either by way of cross-examination or of adducing fresh contrary evidence. The court must be careful not to fall into any of the pitfalls associated with visiting the locus in quo.
In the case under consideration in this appeal, it would seem that the Customary Court made use of facts obtained during the inspection of the land without giving the plaintiff/respondent the opportunity of cross-examining on them or of adducing a contrary evidence if he so desires. The facts obtained were favourable to the defendant appellant and unfavourable to the plaintiff/respondent. The Customary Court stated in its judgment in part as follows:
“At the close of evidence of both the plaintiff and the defendants, the land in dispute was inspected by the Court members on 30/9/86. The Court found that a stretch of land covering the area of the defendants compound and the portions he sold to Akajiuba and Daniel Nworah crossed to Nnewi/Ozubulu main road and that the defendant’s land also situate on the opposite side of Nworah’s premises and that he sold portions of it (right hand side) of Nnewi/Ozubulu Road to Rapheal Ibe and David Igboanugo. The land in dispute is just presumably part of the same stretch of land originating from the defendant’s compound and crossing the Nnewi/Ozubulu main road. The plaintiff did not think that it was right.”
I do not think that the ends of justice were met in not giving the plaintiff/respondent, the opportunity to cross-examine or adduce evidence against the conclusion of the Customary Court in respect of its findings and conclusions as regards the inspection of the land in dispute. This issue is, again resolved against the appellant.
In the final analysis, this appeal fails and is hereby dismissed. The respondent shall have the costs of this appeal fixed at N2000.
Other Citations: (1999)LCN/0499(CA)
