David Amadi V. Ernest Nwosu (2003)

LawGlobal-Hub Lead Judgment Report

ABOYI JOHN IKONGBEH, J.C.A. 

This is an appeal against the decision of the Imo State Customary Court of Appeal, sitting at Owerri. The appellant was the respondent before that Court and was the plaintiff before the trial customary court, Nkwerre Judicial District, sitting at Onu-Nwangele. His claim against the respondent herein before the Trial Customary Court was for a piece of land. He claimed that his father had pledged the land to one of the respondents relations for N20.00. As the respondent would not let him redeem it he took the matter before their local union, which found for him and ordered him to deposit the redemption money of N20.00 with them and take his land. As the respondent was still adamant he took the matter before the Eze and his cabinet. This body also found for him. As a last resort he went to court.

The judges of the Trial Customary Court, B. B. I. Ojako, G. I. Ikoroha and J. C. Ihejirika heard evidence from both parties and gave judgment in favour of the plaintiff. Aggrieved,the defendant appealed to the Customary Court of Appeal, which reserved the decision of the Trial Court. This appeal is from the decision of the Appellate Customary Court.

The appeal is based on five grounds, which, because of the preliminary objection taken to the appeal, I shall set out in full:
“(i) The Learned Customary Court of Appeal Judges erred in law and fact by not properly evaluating the finding and decision of Abo Umuopara Union of Isu which was given on 4/6/85 as well as the finding and decision of Eze F. A. Akano and his cabinet sitting in October, 1985 being people vast in custom and tradition and even failed to tie up the same with the judgment of the Customary Court, Nkwerre, delivered on 20/7/89.

PARTICULARS
(a) There is evidence of the fact that Abo Umuopara Union of Isu, Eze, F. A. Akano and the Customary Court, Nkwerre had through their findings adjudged the appellant in this Court to be the person entitled to possession and ownership of the land in dispute called Ala Ebelebe.
(b) The issue of pledge had been considered and addressed by the previous arbitration panels before giving their decision or decisions in favour of the appellant.
(c) The Customary Court of Appeal needed no fresh evidence on the issue of pledge
(d) It is the Customary Law of the place that is taken into consideration in determining (sic)
(ii) The Learned Judges of the Customary Court of Appeal erred in law by substituting customary law in vogue wit the principle of the received English Law with regard to customary pledge.

PARTICULARS
(a) A pledge is always redeemable
(b) Incidents of pledge in customary law are sustainable once the fact of pledge is common knowledge in the community.
(c) The pledge money or its equivalent had been deposited as it is customary to do.
(d) Proof of title outside the proof of pledge which is in issue is unnecessary and in-applicable as far as the appellant was concerned.
(iii) The Learned Judges sitting on appeal displayed some bias or likelihood of bias in their judgment which fact obviously affected the proper application of the principle of natural justice and fair hearing during the entire trial.

PARTICULARS
(a) The unhidden anger of the Trial Judges of the Customary Court of Appeal came to the open in their expression that the plaintiff/respondent (now appellant) planned to intimidate the defendant (and possibly the court) and that the court frowns at such; just as they denied the use of juju in native arbitration.
(iv) The Learned Judges sitting on appeal imposed costs that were unjustified and appeared to be punitive in the circumstance.
(v) The judgment was against the weight of evidence considering the evidence available from the local tribunals to the Customary Court.
Particulars
(a) Their Lordships, having come to the conclusion that in a Native or Customary Court, it is from the totality of the evidence given that the court findings out what is in issue, ought to have entered judgment in favour of the appellant/plaintiff.”

The respondent, as already indicated, filed a notice of preliminary objection, the gist of which is that none of the grounds raises a question of customary law. All the grounds and, therefore, the entire appeal, are incompetent and should be struck out.

Having read through the grounds I must agree with Mr. E. C. Iwuala, for the respondent, and uphold his preliminary objection as it relates to Grounds (ii), (iv) and (v). Ground (iii) complains about bias on the part of the Trial Court, while Ground (iv) complains about the excessiveness of the costs awarded against the appellant. Ground (v) is the omnibus ground. None of these grounds has anything to do with customary law. Section 224(1) of the Constitution of Federal Republic of Nigeria, 1979, applicable to this matter, gave a right of appeal from the Customary Court of Appeal only with respect to questions of customary law. We have no jurisdiction to entertain Grounds (iii) – (iv). They are accordingly struck out.

That leaves only Grounds (i) and (ii). These complain essentially that the Customary Court of Appeal took the erroneous view that the plaintiff did not prove his claim that there was a customary pledge. In my view the complaint there relates to customary law as it applies to pledge. The two grounds are, therefore, valid under Section 224(1) of the 1979 Constitution.

Chief J. O. Nwachukwu, in the appellant’s brief of argument, formulated two issues for determination. I think, however, and here I agree with Mr. Iwuala, for the respondent, that the two grounds raise only one issue, which is whether or not the Customary Court of Appeal was right in setting aside the decision of the Trial Customary Court on the ground that the appellant herein, as plaintiff, proved a customary plead between his father and any of the respondent’s relations.
Chief Nwachukwu submitted in the appellant’s brief is that the evidence proferred by his client proved that there was a pledge of the land by his clients father to the respondent’s relation. Learned counsel referred particularly to the evidence of P.W.1, Chief J. C. I. Ohaeri, and P.W2 Eze E. Akano. Additional evidence that counsel pointed to as proof by the plaintiff of the claim that there was a pledge was the fact the plaintiff took an oath that there was.

Mr. Iwuala, for the respondent, submitted that the Customary Court of Appeal was right in setting aside the decision of the Trial Customary Court as the evidence before that later court did not support the decision. Counsel argued that “as there was no direct evidence to prove the existence of a pledge transaction as alleged by the appellant in the Customary Court, and the Customary Court found it to be so” at p.89, lines 11-12, the Customary Court of Appeal was right in its decision to overturn the decision of the Trial Court.

In the lead judgment of the Customary Court of Appeal, delivered on 22/11/95 by G. I. Ibe, J.C.C.A., this aspect of the case was treated as follows at pp.191 – 193:
“The evidence of P.W.1. Chief Ohaeri and that of P.W.2 Eze Akano did not help the plaintiff on this issue of pledge. None was a witness to the pledge. During his cross-examination the following followed between Eze Akano and defendant’s counsel.
Q. It is correct to state that the question before your cabinet to decide was whether or not there was a pledge transaction over the piece of land in dispute.?
A. Yes
Q. Did you take evidence from any person who witnessed the alleged pledge transaction?
A. We did not.
Q. Did you take evidence from any person who claims to know of the alleged pledge transaction?
A. The person who came said he did not know. During plaintiff’s cross-examination, he answered thus.
Q. Your claim is that your father pledged the land to one Uchegbu Iriaka and you want to redeem the land from Israel Nwosu the defendant?
A. Yes.
Q. Do you also know that the father of the defendant is called Nwosu Anuba?
A. Yes
Q. Do you know that Nwosu Anuba and Uchegbu Iriaka are not from the same parents?
A. I don’t know.
Q. Do you also know that the defendant Isreal Nwosu is not a descendant of Uchegbu Iriaka?
A. I know

Put: I put it to you that your father Amadi Nzeka did n to challenge the defendant over this land during his life time.
A. Yes.

The defendant in his evidence stated that he inherited the land in dispute from this father and that at no time did plaintiffs father ever pledge it to Uchegbu Iriaka. The plaintiff claimed that his father pledged some land to some people and a blood relation of Mr.Israel Nwosu known and called Uchegbu. Isaiah is one of them (see page 30 also written in read as page 32) of the records. There was no evidence of any eye witness. It is the law that for there to be a valid pledge under customary law, there must be a witness or witnesses.

There is no witness in this case. If there was no reason given for not calling him to testify. I hold that pledge has not been proved in the instant case.

The plaintiff alleged that the plead was by his father to Uchegbu Iriaka.  He admitted that Uchegbu Iriaka has an adult son living whom he should have sued if ever there was pledge. He rather sued the defendant who is not entitled to descend from Uchegbu Iriaka or shown to be entitled to inherit and did inherit from him. There is no evidence that there was a re-pledge of the land by Uchegbu Iriaka to the defendant’s father or the defendant.

From the totality of the evidence pledge has not been proved. The order that the plaintiff should deposit N20.00 in Court, as redemption fee for the defendant to collect in this hereby set aside.” The other members of the panel agreed with him.

L. I. Okonkwo, J.C.C.A., added the observation at p.195 that “something like a pledge is what is always known, in the village. The boundary neighbours of any piece of land know when a particular owner ceased to be in possession of a particular land and they are always willing to testify if called. There was no such evidence in this case.”

I have read the record. I see nothing with which to fault the reasoning and conclusion of the learned judges of the Customary Court of Appeal. Apart from there being no direct evidence of the alleged pledge, one of the witnesses called P.W.1., revealed that during the traditional investigation into the matter the witness called by the plaintiff before them denied the existence of the alleged pledge. The cross-examination of the witness at pp.20 and 21 – 22 is illuminating:
“Ques: Then (read when?) you were considering this matter under Aboh and Umuopara Union you were informed by this plaintiff of this same Emmanuel Uchegbu that he is still alive and he lives in Ghana?
Ans. That was not the evidence before me/panel. We were informed of Mr. Emmanuel Uchegbu as the rightful person but that he lives in outsides Nigeria.
Ques: It is true that in the absence of Emmanuel Uchegbu, you summoned one Innocent Amadigwe who is the representative of Uchegbu Iriaka family to testify on the alleged pledge in order to get at the root of the matter?
Ans. Yea as a relation and not as representative.
Ques: It is true hat the evidence give by Amadigwe was that he never learnt or heard of any that pledge at all? He denied the existence of such as pledge.
Ans. Yes.
Ques. Despite the evidence of Innocent Amadigwe the custodian of Uchegbu Iriaka’s estate, denying the alleged or the purported pledge, why do you still rule that there was a pledge.
Ans. From the evidence available to us we concluded that the land was pledge.
Ques. I put it to you that there was no conclusive evidence of any pledge transaction and that was you invited Innocent Amadigwe the custodian of Uchegbu Iriaka’s estate.
Ans. This is incorrect.
Ques: The evidence of the defendant before your panel was that there was not land transaction between him and the plaintiff or between his father and the plaintiff’s father
Ans: It is correct” (italics mine).

In the face of clear evidence from the plaintiff’s own witness that another of the plaintiff’s witness had earlier denied the existence of the alleged pledge and in the absence of any positive evidence that there was such a pledge, the Trial Customary Court was still able to hold at p.90 that;
“From the foregoing, this court is satisfied that the community had good reasons to decide that the plaintiff should redeem the land from the defendant, thus upholding that there was indeed a pledge of the land at some distant date.”

I agree with the Customary Court of Appeal that this is a perverse decision, which ought not to stand. Even in a Customary Court, to which a great deal of latitude regarding procedure is allowed, it is expected that some real evidence must be found to support a decision before the decision before can be allowed to stand. In this case, where not only was there no evidence to support the assertion that there was a pledge, but also the available evidence is decidedly against the existence of the pledge, the decision ought not to stand.

In the circumstance I must and do here declare that this appeal is devoid of all merit. It is accordingly dismissed. The decision of the customary court of appeal is hereby affirmed.
The appellant is to pay costs of N10,000.00 to the respondent.

Other Citations: (2003)LCN/1452(CA)