ADIELE IHUNWO V. JOHNSON IHUNWO & ORS(2002)

ADIELE IHUNWO V. JOHNSON IHUNWO & ORS

 (2002)LCN/1310(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 11th day of December, 2002

CA/PH/298/98

 

JUSTICES

JAMES OGENYI OGEBE   Justice of The Court of Appeal of Nigeria

MICHEAL EYARUOMA AKPIROROH   Justice of The Court of Appeal of Nigeria

ABOYI JOHN IKONGBEH   Justice of The Court of Appeal of Nigeria

Between

 

ADIELE IHUNWO Appellant(s)

AND

  1. JOHNSON IHUNWO
    2. CHRISTIAN IHUNWO
    3. AMBROSE IHUNWO
    4. METU IHUNWO
    5. OGU IHUNWO
    6. GEOFREY IHUNWO
    7. LOVEDAY IHUNWO
    8. FELIX IHUNWO
    9. URIEL WOPARA
    10. WELE WOPARA
    11. JOHN OKANPA
    12. PAUL OKANPA Respondent(s)

 

MICHEAL EYARUOMA AKPIROROH, J.C.A. (Delivering the Leading Judgment): This is an appeal by the appellant against the judgment of the High court of Rivers State sitting at Port Harcourt delivered on the 17th day of June, 1998 in Suit No. PHC/99/96.
The claim of the appellant in the court below in his Statement of Claim is as follows:
1(i) A declaration that under the Ikwere Native law and custom the plaintiff is entitled absolutely to the land known and called “RUGBURU ASASAR LAND” situate at the area commonly referred to as Mile 12 along the Port Harcourt – Aba Road, Port Harcourt.
(ii) A declaration that the plaintiff is the holder of the Statutory Right of Occupancy over the said land.
2. The sum of N3, 000,000.00 (Three Million Naira) being damages for trespass committed by the Defendants on the said land.
3. An order of Perpetual Injunction restraining the defendants by themselves or by their servants, agents, privies and associates from continuing to trespass on the said land or in any manner whatsoever asserting any claim or rights over the said land or disturbing in any manner or from the plaintiff’s full or partial exercise of his rights or powers of ownership and/or possession over the said land.
The plaintiff’s case in the Court below was that sometimes in 1951 by a document dated 23/7/51 the land in dispute was given to him in exchange of the sum of 20(pounds) which was required by Solomon Opara, a member of Rumuwele family to enable him contest for the then prestigious position of a Customary Court Judge.
The pledge of the land to him was not redeemable by their family because it was not the usual kind of a pledge which was redeemable at the time when the pledgor had money to pay the sum lent to him but a pledge that ought to have been redeemed within a stipulated time and that their family also had violated the condition that required them to join him as defendants in suit which affected the pledged land.
He continued to enjoy the exclusive use and possession of the land until sometimes in 1992 the 1st respondent and his son summoned him before a native customary tribunal who claimed to be acting for the Rumuwele family which adjudged in favour of the respondents which decision he rejected. Sometimes or about January, 1994, the respondents proceeded to survey the land hence he commenced this action against them claiming the reliefs set out above.
The respondents’ case put briefly was that the land was pledged to the appellant by the family for the sum of 20(pounds) to enable Solomon Opara, a member of the family contest for the then prestigious position of a Judge and that it was redeemable by the family.
When the appellant insisted that the land was not redeemable by the Family, the 1st respondent and his son acting on behalf of the family summoned him before Chief Ojiowhor Francis Okocha arbitration which gave judgment in their favour and directed them to refund the pledged sum of 20(pounds) to him which they did through Chief C.N. Ndu but the appellant refused to accept it hence he instituted this act ion against them.
At the end of the trial in the Court below, the learned trial Judge Obie Daniel-Kalio in a reserved and considered judgment dismissed the appellant’s claim. Dissatisfied with the decision, the appellant has appealed to this Court and in accordance with the rules of Court, learned Senior Counsel for him filed a brief of argument and framed four issues for determination as follows:

“ISSUE FOR DETERMINATION
1. Whether the Transaction in Exhibit ‘B’ was a pledge, if so what was the nature and effect of the pledge, if not what was the nature of the transaction? (Original Grounds 4 and Additional Ground ‘A’).
2. Whether the Plaintiff was not entitled to judgment in respect of the pledged land, the learned trial Judge having found that the custom of Rumuokwurushe (the custom applicable to the case) is that the pledgor has a duty to defend the pledged land when the same falls into litigation, failing which the pledged land rest in the pledge who defends the same (Original Ground 5).
3. Whether the Defendants’ family had a right of possession of the land in dispute as adjudged by the learned trial Judge. (Additional Ground ‘B’). Whether the plaintiff was in law and upon the preponderance of evidence not entitled to Judgment against the Defendants.
Learned Senior Counsel for the respondents also filed a brief of argument and distilled two issues for determination as follows:
A. “Whether the learned trial Judge was right when he held that the transaction evidenced by EXHIBIT ‘B’ was neither an irredeemable pledge nor a conditional sale?
B. Whether the learned trial Judge was right when he held that the Plaintiff had not proved his claims for declaration of title and damages for trespass and was accordingly not entitled to judgment?”

The issues formulated by Senior Counsel for the respondents to my mind are sufficient to dispose of this appeal. I will take issues 1 and 2 formulated by Mr. Ukala, Senior Advocate of Nigeria together. On these issues, he submitted that there was no dispute as to whether the transaction which put the appellant in possession of the land in dispute was a pledge and that what was in dispute was the nature and the effect of the pledge as to whether it was redeemable at any time or within the time stipulated in the agreement, Exhibit ‘B’ or within the concessionary period, and as such the learned trial Judge was in error when he held that it was not a pledge. He further submitted that from the admitted facts in the evidence of P.W.1, P.W.3 and P.W.5 including Exhibit ‘B’ as well as the aspects of the evidence of D.W.1 and D.W.2, that the pledge evidenced in Exhibit ‘B’ is for a specified period by nature in accordance with the agreement of the parties as well as under Ikwerre custom, and as such the learned trial Judge was wrong when he held that there was material conflict between the case of the appellant as pleaded and the evidence led in support by P.W.3 and P.W.5, stressing the effect of the transaction in Exhibit ‘B’ was that the appellant became the owner of the land in dispute when the respondents’ family failed to redeem the land within the specified time and after the confessional period of three years had expired. Reliance was placed on the case of OLOWU v. MILLER BROTHERS LTD N.W.L.R. (Pt 110) at 117.

The substance of the submission of Senior Counsel on issue two was that the learned trial Judge having found that under the relevant and applicable customs, a person who defends litigation over a pledged land becomes the owner of the land, he ought to have found in favour of the appellant as there was preponderance of evidence that when the pledged land fell into litigation, the respondents’ family refused to join and the same was defended by the appellant alone. Reliance was placed on the evidence of D.W.1 Magnus Ogor Ihunwo in Exhibit D, pages 6-7.
On issue one, Mr. Okocha, learned senior Advocate of Nigeria for the respondents in his brief of argument submitted that the appellant failed to prove that there was an irredeemable pledge or conditional sale of the land in dispute in favour of the appellant which vested absolute ownership of the land in dispute in him. He further submitted that the appellant merely alluded to facts which tended to suggest a customary pledge under Ikwerre Native Law and Custom but he was neither positive nor precise as to whether the land in dispute in the suit before the High Court was pledged to him by the respondents in return of his having provided the sum of 20(pounds) which was required by a member, of the family Solomon Okpara, who was at that time making a bid for the position of customary court Judge. It was also his submission that the appellant did not specifically state in clear, positive and precise terms in his statement of claim which of the three different types of pledges related to the transaction as evidenced by Exhibit ‘B’, pointing out that he did not also plead a conditional sale in his statement of claim and relied on the case of MURAIMA AKAMU & ANOR v. FASASI ADIGUN & AN0R (1993) 7 NWLR (Pt 304) 218 at 226.
He further submitted that the existence of any Customary Rule or Practice, or of any Native Law or Custom must be proved by credible evidence, except it is the case that the same had been previously proved and had become of judicial notice and relied on sections 14, 59 and 74 of the Evidence Act, Cap 112 Laws of the Federation of Nigeria 1990 and the cases of MRS ADA ONWUCHEKWA V. MR IHE ONWUCHEKWA & ANOR. (1991) 5 NWLR (PT. 194) 739 at 749 and ELESIE AGBAI & ORS V. SAMUEL OKOGBUE (1991) 7 NWLR (PT. 204) 392 – 427.
On the issue of arbitration, he submitted that all the conditions of a customary arbitration were duly satisfied and the Arbitrator as shown on Exhibit G came to the conclusion that the land in dispute was subject to the usual and well known principles of a Customary pledge.
The only life and vital issue that calls for consideration in this appeal is whether the transaction between the appellant and the respondents as evidenced by Exhibit ‘B’ was an irredeemable pledge or a conditional sale of the land in dispute by the respondent to the appellant. It was the contention of Learned Senior Counsel for the appellant that the transaction in Exhibit B was a pledge of the land by the respondents to the appellant for a Limited period beyond which they could no longer exercise their entitlement to redeem it or alternatively, it was a conditional sale of the pledged land to the appellant, while learned Senior Counsel for the respondents contended that it was a pledge by the respondents to the appellant which was redeemable.
At this, I consider it pertinent to reproduce Exhibit B relied on heavily by the appellant for his contention. It reads as follows:

“Agreement
23/7/51
An agreement is here made between Solomon Okpara and Diete Ihunso.
That I Solomon Okpara have received from Adiele Ihunwo the sum of 20(pounds) twenty pounds, and have promised to give him a land which is mile 12 from Port Harcourt to Aba road, this land was given to Solomon by Josiah Akamna Ogo Ihunwo and others in other to give to Adiele in place of his money 20(pounds).
This money should be returned from January to March, if failed to bring this money at the mention time from January to March, let Adiele find one who will bring this 20(pounds) and hold this land
when given out the land to the man, let him bring the man in the present of Solomon, Josiah Okamna Ogo Ihunwo, and others.
Adiele’s witness Johnson Ehunso Solomon’s witness Michael Ikampa, Ogo Ihunwo.”

At the back of Exhibit B appears the writer Japhet Ihunwo frex of charge 23/7/51.
On the interpretation of a document, learned Senior Counsel for the appellant submitted that in interpreting a document such as Exhibit B, it will be appropriate not only to remember that equity looks at the intent and not the form but also to bear in mind that the intention of the parties is gathered from the terms of the agreement as well as from all the circumstances of the transaction and this includes the consideration of parol evidence in cases where the real intention of the parties is in doubt and relied on the case of OLOWU v. MILLER BROTHERS LTD (supra).
In interpreting Exhibit B, the learned trial Judge said at page 162 lines 18-31 and page 163 lines 1 – 18 of the records:
“The Agreement, Exhibit B discloses the following:
1. It is between Solomon Opara and Adiele Ihunwo
2. It acknowledges receipt of 20(pounds) in exchange for a promise of land which was given to Solomon Opara by Josiah Okampa, and Ogo Ihunwo.
3. That land is given to Adiele Ihunwo in place of his 20(pounds).
4. The 20(pounds) is to be returned to Adiele Ihunwo, between January to March of an unspecified year.
5. If the money is not returned between January and March, Adiele Ihunwo is to find someone who will bring the 20(pounds) and who will hold the land.
6. The person who will hold the land should be introduced to Solomon, Josiah Okampa, Ogo Ihunwo & others.
Obviously the document was drafted by a layman. Although it states that the Agreement is between Solomon Opara and Ihunwo, it is safe to say that the subject of the Agreement is family land hence the need for Adiele Ihunwo to introduce whoever ‘holds’ the land upon the refund of the 20(pounds) to him, to the family as represented by Solomon Opara, Josiah Okanpa and Ogo Ihunwo and others. My understanding of the agreement is that the family gave a piece of land to the plaintiff in exchange to 20(pounds) which 20(pounds) was to be refunded to the plaintiff by a given time (although not particularly stated). If the family cannot give the plaintiff the 20(pounds) within the time given, then the plaintiff was to look for someone who can hold the land and get his money from such a man, provided he introduces the man who will now hold the land to the family.
Quite obviously, there is no intention to sell the land to the plaintiff even conditionally. The family had no intention to divest itself of ownership of the land. I therefore cannot accept that there was a conditional sale of the land to the plaintiff.”
It is my view that the interpretation given to Exhibit B by the learned trial Judge that the transaction contained in it is a pledge cannot be faulted and as such the submission of learned Senior Counsel for the appellant that the learned trial Judge did not make specific findings as to the nature and effects of Exhibit B is clearly misplaced because he carefully and dispassionately considered the nature and its effect. Although inelegantly drafted but in the face are words like “give” and not “gave” which clearly indicate that the transaction was for borrowing money with intention to repay and not an irredeemable pledge or a conditional sale. Besides, the appellant did not plead conditional sale in his Statement of claim.
While it is true that the learned trial Judge did not consider the issue of customary arbitration as evidenced by Exhibit G it is quite clear from it that all the conditions of a customary arbitration were duly satisfied and the arbitration came to the conclusion that the land in dispute was a pledge redeemable by the respondents. It is worthy of note that the decision of the arbitration was entered on 4th October, 1992 and the appellant wrote Exhibit E on 30th November, 1992, a period of over one month to reject its decision. He later wrote Exhibit F on 7th January, 1993 through his Solicitor to Chief Ndu, whom the respondents deposited the sum of 20(pounds) for the redemption of the said pledge in accordance with the decision of the arbitration which he refused to collect. To say the least, his subsequent conduct after the decision of the arbitration had been entered was clearly an afterthought and as such he is bound by its decision. This is more so when he appeared before it.
At Page 95 of the records of proceedings lines 24 – 30, D.W.3 Chief Francis Okacha who arbitrated over the matter said:
“I arbitrated the matter, John Ihunwo, 1st defendant gave evidence. There was a panel of Arbitrators comprising other fellow kinsmen. The outcome of the arbitrator was thus:
The 1st defendant’s family through the last defendant was to pay 20(pounds), one bottle of gin, and one Jar of palm wine to the plaintiff to redeem the land in dispute. Also the land was now to belong to Wele family to be sold and shared amongst them. The evidence and the verdict were all written down.”
At page 96 of the records, lines 9-12 under cross-examination of D.W.2 the following appeared:
“Q: Plaintiff said he attended the arbitration and left after a stage.
A: That is false otherwise; we would not have passed a verdict in his absence.”
The legal basis of all arbitrations is voluntary agreement. If there is a distinct agreement to appoint an umpire, to determine the difference between the parties and other conditions are present, there is arbitration. Thus voluntary submission of both parties of their cases or points of difference between them for arbitration is basic to a binding arbitration. See ANKRAH v. DARBAH (1956) 1 W.A.L.R 89; GYESIWA v. MENSAH (1947) W.A.C.A. Cyclostyled Reports (Nov/Dec) 45; FOLI v. AKESE 1930 1 W.A.C.A. 1; KWASI v. LARBE 12 W.A.C.A. 76 at 80 (referred to). (Pp. 417 – 418, Paras D – E) see also AGU v. IKEWEBE (1991) 3 NWLR (Pt 180) 385.
As I said earlier, the appellant is bound by the decision of the arbitration. This issue is resolved in favour of the respondents against the appellant.
I will also take issues 3 and 4 formulated by Senior Counsel for the appellant together. On issue 3, the substance of his submission was that there was no basis for the learned trial Judge to declare the right of possession in favour of the respondents on the face of the evidence on record which admitted possession in favour of the appellant. On issue 4, he submitted that there was abundant evidence upon which the learned trial Judge ought to have come to the conclusion that the appellant had proved his case on the preponderance of evidence.
In his reply to issues 3 and 4 above, Senior Counsel for the respondents submitted that the appellant failed to prove that the transaction in Exhibit B was an irredeemable pledge or a conditional sale. He further submitted that the appellant not having proved ownership or exclusive possession of the Land in dispute did not succeed in proving his entitlement to a declaration of title, damages for trespass and an injunction against the respondents.
The appellant’s claim was founded on his allegation that the Land in dispute was irrecoverably pledged to him or conditionally sold to him which allegations were not proved. After reviewing the evidence of the parties led in support of their pleadings, the trial Judge came to the conclusion that the respondents had no intention to divest themselves of the land in dispute to the appellant and as such he was unable to hold that Exhibit B was irredeemable pledge.
The appellant has not shown that the findings of the learned trial Judge as they related to the issues of title and possession were perverse and neither did he show that the said findings led to a miscarriage of Justice. See the cases of JACOB POPOOLA & ORS v. JOSHUA OEYEMI ADEYEMO & ANOR (1992) 8 NWLR (PT 257) 1 at 26.
In conclusion, the appeal lacks merits and it is hereby dismissed. The Judgment of the lower court is hereby affirmed. The respondents are entitled to costs assessed at N5, 000.00 against the appellant.

JAMES OGENYI OGEBE, J.C.A.: I read before now the lead judgment of my learned brother Akpiroroh JCA just delivered and I agree entirely with his reasoning and conclusion.
I see no merit in the appeal at all and I too dismiss it and affirm the judgment of the lower court with costs of N5, 000.00 in favour of the respondents.

ABOYI JOHN IKONGBEH, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother, Akpiroroh, J.C.A. I agree with his conclusion that the appeal ought to be dismissed.
I too will dismiss this appeal. I abide by all the consequential orders made by Akpiroroh, J.C.A.

 

Appearances

  1. C. UKALA, Esq. (SAN) with him A. C. MORKA, Esq.For Appellant

 

AND

  1. W. WORDU, Esq. with him O. D. ABDULKAREEM, Esq.For Respondent

 

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