LUKE UDEMBA v. CHARLES NWABUEZE (2016)

LUKE UDEMBA v. CHARLES NWABUEZE

(2016)LCN/8429(CA)

In The Court of Appeal of Nigeria

On Thursday, the 24th day of March, 2016

CA/OW/60/2014

RATIO

COURT: JURISDICTION OF COURTS; WHEN APPEAL SHALL LIE AS OF RIGHT FROM DECISIONS OF THE CUSTOMARY COURT OF APPEAL TO THE COURT OF APPEAL
In resolving this issue, I must state from the onset that this is an Appeal from the Judgment of the Customary Court of Appeal to the Court of Appeal and not on Appeal from the Customary Court to the Customary Court of Appeal so as to invoke the Provision of 282(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) that provides that:
“282(1) A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in Civil Proceedings involving questions of Customary Law.” Rather, as has earlier on been held following the resolution of issues Number 1 and 4 of the Appellants and Respondents, it is Section 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) that sets out the jurisdiction of this Court (the Court of Appeal) to entertain and determine Appeals from the Customary Court of Appeal and that Section also provides that Appeals shall lie as of right from the decisions of the Customary Court of Appeal to this Court on questions of Customary Law alone. PER IGNATIUS IGWE AGUBE, J.C.A.
CUSTOMARY LAW; RULES OF CUSTOMARY PLEDGES: NATURE OF CUSTOMARY PLEDGES
I am not oblivious of the settled position of our Customary Law as was held in the celebrated cases of Agada Okoiko & Anor V. Ozor Ezedalue & Anor. (1974) 3 S.C. 15 at 30 – 35. Onobruchere & Anor V. Esegwe & Anor. (1986) 1 NWLR (Pt. 19) 799; (1986) LPELR – 2688 (SC); Agbo Kogi V. Addo Kogi (1933) 1 WACA 284, Ikeanyi V. Adighogu (1957) 2 ENLR 38 of 39, Orisharinu V. Mefue (1937) 13 NLR 181 and the recent Supreme case of Achilihu & Ors. Anyatonwu (2013) LPELR ? 20622 (SC); that in ordinary Customary pledge:
A pledge is perpetually redeemable and the pledgor’s family is entitled to redeem the pledged land for the amount of the original loan and for nothing more;
On redemption by the pledgor, a Pledgee of land is not entitled to compensation for putting the land to extra-ordinary economic uses while in possession;
When pledged land is being redeemed by the pledgor or Successor-in-title, the Pledgee must account for benefits derived from exploitation of the land while in possession; and
The Pledgor retains the radical title which is not extinguished by the pledge but the Pledgor has the right of redemption no matter how long the land had been pledged. See Nwagwu v. Okonkwo (1987) 3 NWLR (pt. 60) 316 per Kazeem, JSC, which facts are almost on all fours with the present case where the Appellant mistook a grant of land in lieu of a person surrendered as an atonement for the one murdered, for a pledge. PER. IGNATIUS IGWE AGUBE, J.C.A.
APPEAL: INTERFERENCE WITH COURT FINDINGS; PRINCIPLES OF LAW AS TO WHEN AN APPELLATE COURT IS PERMITTED TO INTERFERE WITH FINDINGS OF LOWER COURTS
An Appellate Court will only interfere with findings of fact of a trial Court if it is shown that the conclusion reached is not in tune with the current or flow of evidence or that the decision was wrong or perverse.”Finally on the vexed question of concurrent findings, the Emeritus Law Lord posited that:”As it pertains to the concurrent findings of two lower Courts an appellate Court will not interfere unless there be exceptional circumstances to justify such interference. Nor would there be interference with the Judgment of two lower Courts unless there are substantial errors in Law or procedure leading to miscarriage of justice. See Akinloye V. Eyinola (1968) NWLR 92; Enang V. Adu (1981) 11 – 12 S.C. 25; Ohannaka v. Achugwa (1999) 9 NWLR (pt. 564) 37 and Okulate v. Awosanya (2000) 1 SC 107; (2000) 74 LRCN 167.” PER IGNATIUS IGWE AGUBE, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

LUKE UDEMBA

(for Himself and as Representative of Umuonumonu Family/Kindred of Orsu Obodo Town) Appellant(s)

AND

CHARLES NWABUEZE

(for Himself And Representing the Umuzere Ugboma Family/Kindred Orsu Obodo) Respondent(s)

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): In the Customary Court of Imo State of Nigeria, in the Oguta Judicial District, Holden of Kalabari Beach, Oguta II, the Respondent along with others (now deceased) sued the Appellant and two others (now deceased) claiming the following Reliefs:

“1. Declaration that the Plaintiffs are entitled to the Customary Right of Occupancy over the piece and parcel of land known as and called “OBUJI” situate of Umuakpa Village of Orsu-Obodo within the jurisdiction of the Court.

“2. Five Hundred Naira being general damages for trespass.

“3. Perpetual injunction restraining the Defendants, agents, servants, and or his workers from entry into the land.”

The Appellants as Counter-Claimants on their part also sued and sought for the following Reliefs from the Plaintiffs/Respondents:

“1. A Declaration that the Plaintiffs are entitled to the Customary Right of Occupancy over the parcel or piece of land known as and called Obuji Farm land lying and situating in Orsu-Obodo.

“2. (N5,000.00) Five Thousand Naira being general damages for trespass.

“3. Perpetual

injunction restraining the Defendants, servants agents, and or privies from further trespass into the said land.”

On the 9th day of October, 1998 the two Suits CC/OG/41/97 and CC/OG/36/1998 were consolidated after the respective parties had pleaded not liable to each other’s Claim. Accordingly, the Trial Customary Court ordered that the Plaintiffs in CC/OG/41/97 become the Plaintiffs while the Plaintiffs in CC/OG/36/98 become the Defendants – Jobi Nwadiozor & Ors V. Ndupu Onumonu & Ors.

At the hearing of the Consolidated Suits the Plaintiffs/Respondents called 4 (Four) witnesses in proof of their case while the Defendants called 3 (Three) witnesses in their Defence. At the close of each parties’ case, their respective Learned Counsel filed and adopted their Written Addresses in support of their disparate positions of the conclusion of which the Learned Trial Customary Court found at pages 51 lines 11-20 to page 52 lines 1 -23 of the Records as follows:

COURT FINDING: Court is satisfied that the parties are from Orsu-Obodo though neither of the same kindred nor of the same village. The name of the land in dispute is Obuji land

which situate in Orsu-Obodo within jurisdiction of this Honourable Court. The matter was sometime at Oguta High Court, though not finally determined. There was arbitration over the matter in the Palace of Eze Ohaka the Eze Igwe of Orsu-Obodo.The decision was not accepted by the parties hence the present action and Counter-action. There was a Court action by Ejekamba of the Defendants family against Ifi of the Plaintiffs’ family because of the unholy connection between them and their elopement to Imo River.The pledge episode can be sustained by this and buttressed by the evidence of the PW4 and Exhibit ‘D’.

The Defendants were in possession of the land in dispute when it was being held in that for PW4 and as long as it was on pledge to their family. Lands on pledge are redeemable no matter the number of decodes, the pledge has lasted. The father of the First Defendant now was the Eze Ala and the oldest man in Orsu-Obodo at its death. The land in dispute is a sister to Okikai land which was redeemed from one Peter Nwobi at the instrumentality of Ndupu Onumonu (Late) and the First Defendants who documented the transaction. This showed that the

Defendants had (sic) genuine in trust in the affirm affecting PW4 and his family.”

On the basis of the above findings the Trial Court therefore came up with following as its verdict:

“COURT’S FINAL AWARD/VERDICT: Court has gone through the submissions made by the parties in the matter, exhibits and their Counsels addresses and had the following as her final awards:

1. The Plaintiffs have found their case beyond the region of probability and the balance of (sic) camerience (convenience) is on their part.

2. The Obuji land was actually on pledge to Ejekamba, the grandfather of Ejiofor of the Defendants’ family as a result of the unholy connection between Ifi of the Plaintiffs family and Uzoru Amadi Omerigbo’s wife and re-married by Ejikamba.

3. The land has been redeemed from Benjamin Ejiofor Ejekamba who actually inherited the land in dispute both by blood and birth (see Exhibit ‘D’).

4. The Defendant is by this Judgment restrained perpetually by themselves, their agent, servants and or workmen from further entry into the said land.

Given in the hands of the Chairman and member this 27th day of November, 2001.

CHIEF

S.S. ANENE – CHAIRMAN

CHIEF B.O. UKACHUKWU – MEMBER.”

Piqued by the above decision, the Defendants appealed to the Customary Court of Appeal Imo State Holden at Owerri in Appeal No. CCA/OW/A/42/2012 by a Notice of Appeal with six Grounds dated 15th day of March 2012 and filed on the 15th day of May, 2012 with the leave of the Customary Court of Appeal, the time within which to Appeal having elapsed. At the Customary Court of Appeal, the Learned counsel for the parties exchanged their respective Briefs of Argument which were adopted culminating in the unanimous Judgment of the Court below delivered on the 27th day of June, 2013, dismissing the Appeal in the following terms at page 168 of the Records/11 of the Judgment: “…I find that the Appeal filed by the Appellant is not on solid ground and therefore not meritorious. I therefore dismiss the Appeal and affirm the Judgment of the Court below delivered on 27th day of November, 2007 in Suit No. CC/OU/41/97 Job Nwadiozor & Ors. V. Alphonsus Ndupu & Ors. I assess the cost of this Appeal of N15,000.00 which I award to the Respondent herein.”

Dissatisfied again with the above decision

of the Customary Court of Appeal of Imo State, the present Appellant who is the only surviving representative of the Defendants has now by a Notice of Appeal with 3 (THREE GROUNDS) dated 20th day of September, 2013 and filed on the 25th day of September, 2013; appealed to this Honourable Court. For the avoidance of doubt the Grounds of Appeal without their respective particulars are hereunder set down as follows:-

“GROUNDS OF APPEAL

GROUND 1

The Court below erred in law when it assumed jurisdiction to entertain the Appeal on the merit when the Appeal before it was a nullity on the ground that the Court of first instance and or trial lost the jurisdiction to determine the case.

“GROUND 2

The Court erred in law when it held that the land in dispute was on pledge to the Appellant’s family from the Respondent’s family.

“GROUND 3

The Court below erred in law when it gave Judgment to the Respondent inspite of the contradictory evidence of his witnesses.”

Upon transmission of the Records and entry of the Appeal from the lower Court here to, the respective Learned Counsel for the parties had exchanged their Briefs of Argument

which were adopted on the 25th day of January, 2015 of the hearing of the Appeal. In the Appellant’s Brief is dated the 25th day of February, 2014 and filed on the 5th day of February, 2015, the Learned Counsel distilled three (3) issues for determination couched as follows:-

“ISSUES FOR DETERMINATION

l. Whether the Court below was right to hear and determine the Appeal when the Court of first instance lost the jurisdiction to conclude the case before it?

(Distilled from Ground 1)

2. Whether it is customary in Igbo land (and Oguta in particular) to say that land given in lieu of bride price is on pledge? (Distilled from Ground 2).

3. Whether the Respondent proved his case despite the contradictions replete in his evidence and that of his witnesses to be entitled to judgment?

(Distilled from Ground 3).”

On the other hand, Chief C.O. Nwosu Esq who settled the Brief of the Respondent adopted the three Issues nominated by the Learned Counsel for the Appellant but added a fourth which is:

“Whether this Appeal is competent before the Court?”

ARGUMENTS OF ISSUES:

ISSUE NUMBER 1 (ONE):

“WHETHER THE COURT BELOW WAS

RIGHT TO HEAR AND DETERMINE THE APPEAL WHEN THE COURT OF FIRST INSTANCE LOST THE JURISDICTION TO CONCLUDE THE CASE BEFORE IT? (DISTILLED FROM GROUND 1).”

Arguing this first issue, the Learned Counsel to the Appellant recalled that the Appellants took their pleas in the Court of first instance on the 25th September 1998 with a Panel of three members to wit: Chiefs S.S. Anene – Chairman, E.A. Onyejiawa ? Member and E.O. Ukachukwu – member (page 1 lines 20 – 25 of the Records refer); and that this Panel continued with the hearing of the case till 3/12/1999 when the PW2 Jobi Mberekpe commenced his evidence-in-chief (page 10 lines 25- 35 of the Records refer).

He pointed out that on 10/3/2000, the Panel changed with the introduction of F.N. Ugochukwu who replaced Chief E.A. Onyejiawa by joining the other two members without fresh plea (page 12 last line of the Records refers). He added that on 14/4/2000, the said F.N. Ugochukwu dropped (page 13 last line to page 146 lines 25 – 30 of the (Records refers). Against the foregoing background, the Learned Counsel for the Appellant cited the provisions of Section 4 (2) (ii) and (3) of the Customary

Court Amendment Edict, 1987, of Imo State which is the relevant law on the quorum of the Customary Courts in Imo State which provisions he reproduced in submitting that the above Sections were breached by the Court of first instance and by so doing robbed itself of the jurisdiction to continue to hear the case to determination and further that as a corollary, the Customary Court of Appeal Owerri, Imo State also lost the jurisdiction to hear the Appeal on the merit.

On the need to obey mandatory statutory provisions, the Learned Counsel for the Appellant relied on Shettima v. Goni (2012) ALL FWLR (Pt. 609) 1007 (S.C) at 1036 Para. B; 1044 Paragraph G; to submit that Section 4 (3) of the Customary Court (Amendment) Edict, 1987 is very clear and unambiguous and that the provision used the mandatory word “shall” and accordingly we shall accord same its clear meaning as well as uphold same. Referring us further to the authorities of Arum V. Nwobodo (2013) 10 NWLR (Pt. 1362) 374 at page 487 Para. G Sokoto State Government of Nigeria V. KAMDEX (Nig) Ltd. (2007) ALL FWLR (Pt. 365) 469; (2007) 2 SC (Pt. 1) 94 600) 1328 at 1349 – 1350 Paras. G – B. 1352 Para. D, on

the issue of quorum as it happened in the Court of first instance when a new member was introduced to the panel of Judges while the Pw2 was midway into his evidence, and the effect of an improperly constituted Court, we were again urged to follow the above authorities and nullify the proceedings of the lower Courts as well as allow the appeal on that score.

The Learned Counsel for the Appellant contended that the point may be made that the issue of jurisdiction was not raised and/or canvassed before the Customary Court of Appeal for which in answer to that poser, he called in aid the Supreme Court decision in F.H.A. v. Kalejaiye (2011) ALL FWLR (Pt.502) 1633 at 1645 -1646 Paras. H -A; Akporido v. P.T.F. (2013) ALL FWLR (pt. 701) 1575 at 191 Paras. D – G; which followed the Supreme Court case of C.G.G. (Nig.) Ltd. v. Chief Lawrence Ogo (2005) 2 S.C. (pt. 2) 50 and urged us to invoke Section 16 of the Court of Appeal Act and pronounce on the fundamental and radical issue of jurisdiction as well as resolve the issue in favour of the Appellant.

ARGUMENT OF LEARNED COUNSEL FOR THE RESPONDENT ON ISSUE NUMBER 1 (ONE):

Responding to the above arguments,

the learned counsel for the Respondent submitted that the dropping of a member of the Panel and subsequent appointment of new members does not under the Customary Court’s Rules require fresh plea but fresh plea can only be necessitated if a fresh Panel is constituted and the old one dissolved in which case the matter is said to commence de novo.

He referred us to pages 1 – 52 of the Records and submitted by also citing Section 4(5) of the Customary Court’s Rules, that Chief S.S. Anene the Chairman sat consistently with Chief E.O. Ukachukwu throughout the proceedings in keeping with the Rules irrespective of dropping and introduction of any other member. He explained that Mr. Ugochukwu who was a member of the Panel from inception dropped out of a point in time but was re-appointed a member of the Court of first instance and according to Counsel, although the said Chief Ugochukwu was in the Court he was neither functus officio nor a member of a jury but mere adviser in Customary matters which advise the Chairman could accept or drop. Our attention was therefore drawn to the chronological order of the sittings of the Court from inception of the trial as

indicated in the Record of Appeal and in the chart annexed to the Respondents’ Brief.

The Learned Counsel for the Respondent further submitted that Chief Ugochukwu was not a signatory to Judgment as he was not a party to the writing thereof and his mere presence without partaking thereof does not by any means constitute such a person as a panel member in that proceeding. He urged us to therefore hold that the Ground of Appeal and issue Number (ONE) lack merit and substance as the Court of first instance was not derobed of jurisdiction but was legitimately constituted.

On another score, the Learned Counsel for the Respondent took the view that Ground Number one (1) of the Appellant’s Notice of Appeal does not raise any issue of Customary Law as envisaged by Section 282(1) of the Constitution of the Federation of Nigeria, 1999 (as amended) and as such we cannot be called upon to send this case back to the Court of first instance for retrial on the ground that F.N. Ugochukwu dropped from the panel on 14/4/2001 and rejoined the panel on 20/4/2001 and that because fresh plea was not taken the proceedings were vitiated. He urged that what we should

consider in order to arrive at a decision are:

l. Whether the trial was fairly conducted;

2. Whether it led to miscarriage of justice;

3. Whether substantial justice was done in the case;

4. Need to ovoid technicality especially of the Customary Court and,

5. What the ordinary man would say;

Since the Record of the Court is as written by the Chairman of the Trial Court.

The Learned Counsel finally argued on this issue that to send back this case to be tried de novo on the reasons advanced by the Learned Counsel for the Appellant in his argument of this issue, would defeat the whole intention of the framers of Section 4(1) of the Customary Court Law No.7 of 1984 which was to eliminate the rate of which cases had to be started de novo whenever changes occur in the composition of the Panel of Customary Courts arising from the expiration of tenure of office of lay members of the Court who only have limited period of time to sit of the Panel. We were from the foregoing urged to resolve the issue in favour of the Respondent.

RESOLUTION OF ISSUE NUMBER 1 (ONE).

In resolving this issue, and without wasting

any precious judicial time, I must point out that the Learned Counsel for the Respondent had raised a very salient issue in the course of his argument and indeed from issue Number 4 (four) of the Respondent’s Brief where he posed the question as to: “Whether this Appeal is competent before this Court?”. It is pertinent to note that apart from arguing in respect of issue Number one of the respective Briefs of the parties that Ground 1 (ONE) of the Notice of Appeal from where the issue was formulated, is not a Ground of Customary Law as envisaged by Section 282(1) Constitution of the Federal republic of Nigeria (CFRN) (as amended) and as such we cannot send back the case to the Trial Court, the Learned Counsel for the Respondent has in my humble view rightly argued and cited the provisions of Section 245(1) of the Constitution of the Federal Republic of Nigeria and the decisions of the Supreme Court on Golok V. Diyalpwan (1990) 3 NWLR (Pt. 139) 411 at 418 C – D; on the extent and limitations of the jurisdiction of this Honourable Court (Court of Appeal) over Appeals emanating from the Customary Court of Appeal.

The Learned Counsel for the Respondent

has also cited and relied on the authorities of Ohia V. Akpomonye (1999) 1 NWLR (pt. 588) 521 at 528; Pam v. Gwom (2000) 2 NWLR (Pt. 644) 322 at 323 Paras. E – F; Tiza v. Begha (2005) 33 WRN 158 per Musdapher, JSC of pages 176 – 177 lines 40 – 20 and Begha V. Tiza (2000) 4 NWLR (Pt. 652) 193 at 206 Paras. C – D; where the Supreme Court interpreted Section 224(1) of the Constitution of the Federal Republic of Nigeria, 1979 now replicated in Section 245 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

Although I am not in tandem with his submission that all the three (3) Grounds of appeal as filed and therefore the three issues formulated therefrom are incompetent, (as shall be demonstrated anon), the Learned Counsel cannot be faulted on his submissions and analysis on the incompetence of Grounds 1 (ONE) and 3 (THREE) of the Appellant’s Notice of Appeal.

To set the record straight Section 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which confers/imbues this Honourable Court with the jurisdiction to determine Appeals emanating from the Customary Court of Appeal, explicitly stipulates

that:

“An Appeal shall lie from decisions of the Customary Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of Customary law and such other matters as may be prescribed by an Act of the National Assembly.”

Following the decisions of the Supreme Court in the cases earlier cited by the Learned Counsel for the Respondent on which their Lordships of the Apex Court had variously held that the above Section of the Constitution does not accommodate any complaint or Ground of Appeal which does not raise the issue of Customary Law, and that the jurisdiction of this Court is limited to complaints on issues of Customary Law only, we had consistently held in this Division of our Court that in order to determine whether a Ground of Appeal raises on issue of Customary Law so as to confer the Court with the requisite jurisdiction to hear and determine on Appeal(S) from the Customary Court, of Appeal, the Ground(s) of Appeal ought to be subjected to careful scrutiny for it is not enough to simply allege that the Customary Court of Appeal erred in Customary Law in its decision whereas there is no

iota of element or question of Customary Law arising from such a Ground or issue nay decision of the Customary Court of Appeal.

For instance, in the PAM V. GWOM case also reported in (2000) LPELR – 2896 (SC), Per Ayoola, JSC; in his interpretation of Section 224(1) of the 1979 Constitution which as we had said is replicated in Section 245(1) of the extant Constitution (as amended) explained the purport of a decision in respect of a question of Customary Law when he posited thus:

“The plain and unambiguous meaning in Section 224(1) is that where in Civil proceedings the decision of the Customary Court of Appeal of a State is with respect to any question of Customary Law the Appellant may appeal as of right, the question therefore is when is a decision in respect of a question of Customary Law? When the controversy involves a determination of what the relevant Customary Law is and the application of Customary Law so ascertained to the question in controversy. Where the parties are in agreement as to what the applicable customary law is and the Customary Court of Appeal does not need to resolve any dispute as to what the applicable Customary Law is, no

decision as to any question of customary law arises.

However, when: notwithstanding the agreement of the parties as to the extent and manner in which such applicable Customary Law determines and regulates the right, obligation or relationship of the parties, having regard to facts established in the case; a resolution of such dispute can in my opinion be regarded as a decision with respect to a question of Customary Law, notwithstanding that the applicable Law is Customary Law. Where the decision of the Customary Court of Appeal turns purely on facts, or questions of procedure, such decision is not in respect to a question of Law, notwithstanding that the applicable Law is Customary Law.? See pages 22- 23, Paras. F – F of the Report.

Taking a cue from the above decision/dictum of the Emeritus Law Lord of the Apex Court, we shall now subject the Grounds of Appeal as couched by the Learned Counsel for the Appellant as well as the issues formulated from them to the test as laid down above. In so doing, I am not oblivious of the fact that, the Respondent in this case did not cross appeal nor file a Respondent’s Notice so as to formulate issues

outside the purview of the Grounds of Appeal of the Appellant. Ordinarily, issue Number 4 of the Respondent’s issues which does not arise from any of the Grounds of Appeal of the Appellant ought to be discountenanced as being incompetent along with his arguments on the issues formulated therefrom.

As we held in David v. Joyalemi (2011) 13 W.R.N. 54 at 80 – 81 lines 20 -40 and 45 – 10; citing Idika v. Erisi (1988) 2 NWLR (Pt. 78) 653, Capt. Amadi v. NNPC (2000) 5 WRN; (2000) 10 NWLR (Pt. 564) 76; and Salami v. Bala Mohammed (2000) 11 WRN 76, (2000) 6 SCNJ 281; a Respondent who has not filed a cross-appeal or Respondent’s Notice, has no business formulating issues outside the purview of the Grounds of Appeal filed by the Appellant. Furthermore, on issue or issues formulated by the Respondent outside the Ground(s) of Appeal filed and issues formulated by the Appellant therefrom are liable to be struck out. See Owhonda v. Ekpechi (2003) 49 WRN 1, (2003) 9 SCNJ 1 at 20 per Dahiru Musdapher, JSC (as he then was) and G & C Lines V. Hengrace (Nig.) Ltd. (2001) 7 NWLR (Pt.711) 51.

Thus, ordinarily where issue Number Four as formulated by the Learned

Counsel for the Respondent in this case as well as part of his argument on issue Number One touching on the Ground of Appeal not raising an issue of Customary Law, did not arise from any of the Grounds/issues formulated by the Appellant, this Court ought to have no other option than to discountenance same as incompetent. See Nfor v. Ashaka Cement Co. Ltd (1994) 1 NWLR (pt. 319) 22 and Ndukwe V. The State (2009) 37 NSCQR 425.

However, because of the peculiar similarity of this case to Enyinaya & Ors v. Chief Caollistus Otikpo & Anor (2015) LPELR – 25529 (CA); where the Respondent did not raise a Preliminary Objection to the competence of the Grounds of Appeal which did not touch on any question of Customary Law, I shall invoke the inherent power of this Court to look at the Grounds of Appeal as couched in order to determine whether this Court is clothed with the requisite vires or jurisdiction to entertain all of them. This is in tandem with the decision in Ayoade V. Spring Bank Plc (2014) LPELR (Pt. 1396) 93 that: “…The Appellate Court is still seised with powers to consider any defect apparent on the face of the Notice and Ground of Appeal and

on the issues distilled therefrom, and to rule thereon, as the justice of the case may require. See Order 6 Rules (3), (6) of the Court of Appeal Rules, 2011. Garba & Ors. V. Umuani (2014) ALL FWLR (pt.722) 1715.?

Also see Ahmaddozom v. Musa (2014) ALL FWLR (pt. 743) 1866, where this Court held that the blunders of the Respondent (as in this case) in not raising a valid Preliminary Objection to the hearing of the Appeal notwithstanding, the Appellate Court still has the powers to invoke its jurisdiction to consider any defect on the face of the Appeal, capable of affecting its competence or jurisdiction. Okereke v. Adiele (2014) LPELR – 24103 (CA).?

Thus, notwithstanding the fact that the Learned Counsel did not raise a formal Preliminary Objection, by formulating issue Four questioning whether the Appeal as constituted is competent, the Respondent has indirectly questioned the competence of the grounds of Appeal as donated by Section 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). We shall therefore in exercise of our inherent powers as earlier stated, scrutinize the Grounds of Appeal lodged by the Appellant

in order to determine whether they are competent. See Onyenobi V. Amadi & Ors, (Supra) Njoku v. Irechukwu (2013) LPELR – 20673 (CA) Per Tsamani, JCA at 27 – 28 Paras. A – A.

Beginning from Ground ONE (1) of the Notice of Appeal which complains that the Court below erred in law when it assumed jurisdiction to entertain the Appeal on the merit when the Appeal before it was a nullity on the ground that the Court of first instance and/or trial lost the jurisdiction to determine the case, it is clear from the particulars of the Grounds as stated at page 159 of the Records and the arguments canvassed that the Appellant is complaining of the quorum of the trial Customary Court which in ordinary matters commenced from Courts other than the Customary, Area or Sharia Courts, the want or defect in quorum goes to the jurisdiction of the Court. The locus classicus of Madukolu V. Nkemdilim (1962) 1 ALL NLR 587 (S.C) followed in a plethora of cases by this Court and even the Supreme Court in the cases of F.H.A. v. Kaleyaive (2011) ALL FWLR (Pt.502) 1633 at 1645; AKPORIDO v. P.T.F. (2013) ALL FWLR (Pt.701) 1575 at 1591 Paras. D – G, C.G.G. (Nig.) Ltd. V. Lawrence Ogo

(2005) 2 S.C. (Pt. 2) 50, Sokoto State Government of Nigeria V. KAMDEX (Nig.) Ltd. (2000) ALL FWLR (Pt. 365) 469, Onmeje V. Odumu (2011) ALL FWLR (Pt.600) 1328 at 1349 – 1350 Paras. G – B Per Yahaya, JCA; ably cited by the Learned Counsel for the Appellant would have been apt to vitiate the proceedings of the Court of trial or the Customary Court of Appeal assuming the quorum of the Customary Court was defective.

However, since the authorities have now settled the question of the jurisdiction of this Court once and for all in spite of the erudite postulations of the Noble Lord W.S.N. Onnoghen, JSC on the universality of the concept jurisdiction and fair hearing, a Ground of Appeal questioning the quorum hence the jurisdiction of the Customary Court or Customary Court of Appeal, or Court of Appeal as in this case is not cognizable by virtue of Section 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). See for instance Nwaigwe v. Okere (2008) 13 NWLR (Pt. 1105) 445, Okorie V. Unakalamba Per Abba Aji, JCA (2013) LPELR -20679 (CA):, Omuzaga V. Omuzaga (2015) LPELR – 24903 (CA). David V. Zabia (1998) 7 NWLR (pt. 1556) 105 at 114;

and Aromire V. Ajomagberin & Ors. (2011) LPELR – 3809 (CA).

Since it is clear that Ground 1 (ONE) of the Appellant’s Notice of Appeal and indeed issue Number One (1) formulated from it does not raise any question of Customary Law but the issue of quorum and by implication the jurisdiction of the Court of first instance and indeed the Customary Court of Appeal, this Honourable Court is totally bereft of the jurisdiction to entertain and determine this Ground and the issue distilled from it, are incompetent and accordingly struck out.

Turning to Ground 2 which avers that the Court erred in law when it held that the land was on pledge to the Appellants family from the respondent’s family the particulars of error which are listed as:

(a) That land given in lieu of bride price and/or dowry is not redeemable.

(b) Payment of dowry is not a pledge and therefore not redeemable unless there is divorce followed by the return/refund of the bride price which is not the case herein; it is very clear to me that this Ground and the issue nominated from it raises the question of Customary Law and indeed a dispute as to the appropriate meaning of the

Customary transaction between the two families as between a pledge or land given in lieu of bride price and whether the land in question is redeemable so as to found against the defendants/Appellants. This Ground and the issue distilled from it are therefore competent and fall within the circumscriptive provisions of Section 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). See Pam V. Gwom (supra). Golok V. Diyal Owan (supra); Tiza V. Begha (supra), Ohai v. Akpoemonye (supra) and Enyinnaya v. Otikpo & Anor. (supra).

As for Ground 3 of the Notice of Appeal which complains that the Customary Court of Appeal erred in Law when it gave Judgment to the Respondent in spite of the contradictory evidence of the witnesses. From the particulars of error as highlighted of pages 159 – 60 of the Records, the Learned Counsel for the Appellant is complaining of conflict in the evidence of the PW1 and PW3 as to whether the land was pledged and that whereas the PW1 alleged that the land was on pledge the PW3 stated the contrary. Also whereas PW3 testified that it is true that Ben Ejiofor did not inherit the land disputed Ben Ejiofor

purportedly collected the so called redemption fee from the Plaintiff yet PW4 was said to have testified to his lack of knowledge of the tradition or custom of Orsu Obodo people in respect of a man trying to marry another’s wife even though he set up the purported pledge in lieu of bride price. Again particulars (d) – (f) also complain of the conflict in the genealogical pedigree of the land in dispute as testified to by the PW1 as to who inherited the land or who held same in trust for Benjamin Ejiofor.

As was laid down in Pam V. Gwom Per Ayoola (supra), this Ground of Appeal and the issue formulated from it do not fall within the purview of Customary Law but deal turn purely on facts or question of procedure (the evaluation of evidence and ascription of probative value) to the evidence of the witnesses for the Plaintiff inspite of the conflict in those pieces of evidence.

Accordingly, this Ground is not cognizable by Section 245(1) of the Constitution of the Federal Republic of Nigeria and accordingly Ground 3 and issue Number 3 are hereby struck out for being incompetent. From the foregoing, the only competent Ground of Appeal is Ground two

as well as issue Number Two as distilled therefrom.

We shall therefore determine this Appeal solely on issue Number TWO: WHETHER IT IS CUSTOMARY IN IGBO LAND (AND OGUTA IN PARTICULAR) TO SAY THAT LAND GIVEN IN LIEU OF BRIDE PRICE IS ON PLEDGE AND OR A SUBJECT OF PLEDGE?”

Arguing this issue, the Learned Counsel to the Appellant alluded to the case of the Plaintiff as stated at page 3 lines 12 – 18 of the Records on the pledge transaction between Nwabueze Adizue the oldest man of Nzere Ugboma family who went to Ejekamba whose wife, Ifi (son of Orisakwe also of Nzere Ugboma), eloped with to Imo River. The said wife was said to be called Uzoru. Ejekamba sued Ifi in the Oguta Native Court and the said Ejekamba hunted Ifi with Court messengers. Thus, Nwobueze went to Ejikamba and agreed to let the latter have a portion of their land in order to stop hounding or hunting for Ifi. The total dowry and other expenses said to have been made on behalf of Uzoru was 15=. Accordingly, Nwabueze was said to have pledged the said “Obuji” land in lieu of the N15.

Learned Counsel for the Appellant also referred us to page 31 – 32 of the Records lines 3 to 1

– 5 where these facts are reflected in the judgment of the Court below, to submit that it is not in evidence that the parties later divorced. Upon the assumption that the story as told by the PW1 is true which was not conceded the Learned Counsel highlighted the loopholes that it is Customary in Igbo land that any amount paid as bride price is not redeemable neither is it subject of pledge (unless parties eventually divorced) and a demand for refund of the bride price is made which is not the case here.

He posited that from the foregoing anything given in lieu of bride price or dowry is not redeemable and referred us to Black’s Law Dictionary, Ninth Edition of page 858 on the definition of in lieu of which definition agrees with his contention and we were urged to hold that the land was given in lieu bride price. Submitting further that the words “pledge” and “bride price” are two different words and worlds apart not related in any way, he then referred us to page 101 of the ?Basic Igbo Customary Laws Second Edition” by Hon. Chief Alike Udenwaoke where “Bride Price” was also defined and the incident of Bride price was stated of page 102 of the

Book to contend further that no Claim could be made in any form by a husband over the refund of such bride price.

The Learned Counsel in further adumbration of his point on this issue, referred us to page 6 lines 20 – 21 of the Records where the PW1 testified that Uzoru ran away from Amadi’s house when he died and that Uzoru died of Umueri, from which evidence and following the above Author, the bride price or anything given in lieu of same is lost forever as no Claim, according to the Author, could be made in any way by the husband over the refund of such bride price or any valuable items given in lieu which are compulsory and that land has always been a valuable item in Igbo land and elsewhere.

He therefore urged us in the light of the decision of the Customary Court of Appeal affirming the decision of the Customary Court based on the Custom of the parties as enunciated, to hold that the decision of the Lower Court is perverse and we ought to reverse the said decision notwithstanding there are two concurrent findings of the two Lower Courts.

Citing the authorities of Olusanya v. Osinleye (2013) ALL FWLR (Pt. 693) 1930 and Anyakora V. Obiakor

(2005) ALL FWLR (Pt. 268) 1662 at 1680 Paras. D – E; where the Supreme Court stated the circumstances under which an Appellate Court would interfere with the findings of facts of Trial Court, the Learned Counsel argued that this case is caught by the enumerated vices as laid down by the above cited cases and accordingly, the judgments of the lower Courts should be set aside by allowing the Appeal.

Finally on the issue, the Learned Counsel anchored his submissions on Biezan Exclusive Guest House Ltd. v. U.H.S. & L. Ltd (2012) ALL FWLR (Pt. 634) 136 at 162-163 Paras. H-B; which authority he urged us to follow as well as the recent Supreme Court decision per Adekeye, JSC in Military Governor of Lagos State V. Adeyiga (2012) ALL FWLR (Pt. 616) 396, to re-evaluate the evidence witnesses as the Court of first instance wrongly approached same and the Court below wrongly followed the same judgment and affirmed same erroneously.

ARGUMENT OF LEARNED COUNSEL FOR THE RESPONDENT ON ISSUE NUMBER 2 (TWO): “WHETHER IT IS CUSTOMARY IN IGBO LAND TO SAY THAT LAND GIVEN IN LIEU OF BRIDE PRICE IS ON PLEDGE AND/OR SUBJECT OF PLEDGE?”

Reacting to the submissions

of the Learned Counsel for the Appellants on this issue, Chief C.O. Nwasu Esq, for the Respondents by way of prefatory remarks posited that the issue as distilled for determination is predicated on Ground 2 of the Appeal and therefore offends Section 282(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

According to the Learned Counsel for the Respondents, the Appellant has failed to indicate that this issue emanates from the Native Custom of the Appellants and Respondents adding upon the assumption but not necessary conceding that the issue emanates from the native custom of the parties, he contended that a pledge is giving of collateral in lieu of payment or performance of an obligation which a party is not immediately in a position to fulfill. The Learned Counsel for the Respondent further made reference to the definition of ‘pledge’ in Black’s Law Dictionary, 6th Edition in submitting that both the Court of first instance and the Customary Court of Appeal mode findings of fact that Ifi was sued in the Customary Court Oguta for eloping with Uzoru and the husband of Uzoru agreed to accept 15 (Fifteen Pounds) for the

settlement of the action. (Page 7 of the Records refers).

The Learned Counsel had earlier submitted that the Claim against Ifi was not for remarriage but for deprivation of conjugal right resulting from the elopement of Uzoru with Ifi. Still on the concurrent findings of facts of the two Lower Courts as highlighted above, he submitted that the Law is trite that on Appellate Court will not interfere with such findings. For this submission, he placed reliance on Oduneye V. The State (2001) 13 W.R.N. 88 of 94 R. 12 (S.C.), Nwoboko v. The State (1985) S.C. 11 and Igwego v. Ezeugo (1985) 6 NWLR (Pt.249) 561 at 574.

On the circumstances under which an Appellate Court may interfere with such concurrent findings of the two lower Courts, he further relied on Biariko V. Ede – Ogwuile (2001) 20 W.R.N. 1 Ratio 1 (S.C), INCAR Nig. Ltd V. Adegboye (1988) 2 NWLR (Pt. 8) 458 and Ramonu Atolagbe V. Shorun (1985) 1 NWLR (Pt. 2) 360 at 373; to urge us to hold that this issue does not hold sway on us as it is of no substance and most especially as it runs counter to Section 282(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

We were

finally urged to resolve the issue in favour of the Respondents.

RESOLUTION OF SOLE ISSUE FOR DETERMINATION:

In resolving this issue, I must state from the onset that this is an Appeal from the Judgment of the Customary Court of Appeal to the Court of Appeal and not on Appeal from the Customary Court to the Customary Court of Appeal so as to invoke the Provision of 282(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) that provides that:

“282(1) A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in Civil Proceedings involving questions of Customary Law.”?

Rather, as has earlier on been held following the resolution of issues Number 1 and 4 of the Appellants and Respondents, it is Section 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) that sets out the jurisdiction of this Court (the Court of Appeal) to entertain and determine Appeals from the Customary Court of Appeal and that Section also provides that Appeals shall lie as of right from the decisions of the Customary Court of Appeal to this Court on questions of Customary Law

alone.

I had also decided earlier that out of the three Grounds of Appeal lodged by the Appellant, only Ground 2 and indeed issue Number 2 as distilled from it, are competent as the Ground and issue raise the question of Customary Law which is whether land given in lieu of bride price and/or dowry as purported by the Respondent can under Custom be properly regarded as a pledge from the Respondent’s family to the Appellant’s family. I shall therefore discountenance the contention of the Learned Counsel to the Respondent that Ground 2 of the Appellants’ Notice of Appeal offended Section 282(1) of the Constitution which is not the appropriate Section of the Constitution that confers this Court with the jurisdiction to entertain Appeals from the Customary Court of Appeal.

Fair enough, the Learned Counsel has argued in response to the contention of the Learned Counsel to the Appellant, that what transpired was not a pledge assuming that there was actually a handing of the disputed land by Nwabueze over to Ejekamba in lieu of the bride price of 15 (now N30,000.00), paid for Uzoru when Ifi eloped with the said Uzoru, and Ejekanma hunted Ifi with

Court messengers after suing him in the Oguta Native Court. As far as this Appeal is concerned, the only question/issue that calls for determination is whether there was actually a pledge properly so called from the totality of the evidence as adduced by the parties. The Learned Counsel for the respondents has referred us rightly to the definition of pledge as given by Black’s Law Dictionary where at page 1175 of the 7th Edition of the said Dictionary, the Learned Authors define the term as:

“n.1. bailment or other deposit of person at property to a creditor as security for a debt or obligation; PAWN (2). LIEU 2. The item of person of property so deposited; PAWN (1). 3 Broadly, the act of providing something as security for a debt or obligation.” Quoting from Leonard A. Jones: “A Treatise on the Law of Collateral Securities and Pledges”, Paragraph 2 of 4 (Edward M. White Review, 3rd Edition 1912) Ray Andrews Brown,”, ?The Law of Personal property Paragraph 128 of 622 (2nd Edition 1936)? and Ray D. Hanson: ?Secured Transactions Paragraphs 3 – 1 at 17 (3rd Edition, 1933)”, the Learned Authors further explained that:

“A pledge is

something more than a mere lien and something less than a mortgage”. “A pledge is a bailment of a personal property to secure an obligation of the bailor. If the purpose of the transaction is to transfer property for security only, then the Courts will hold the transaction a pledge, even though in form it may be a sale or other out-and-out transfer.?

“The pledge is as old as recorded history and still in use, as the presence of pawn brokers attests. In this transaction the debtor borrows money by physically transferring to a secured party the possession of the property to be used as security, and the property will be returned if the debt is repaid. Since the debtor does not retain the use of pledged goods, this security device has obvious disadvantages from the debtors point of view.”

The above is the English concept of a pledge transaction.

Coming home to this case, the purported pledge was purportedly transacted under Custom and this Court in a plethora of cases following Adjei v. Dabanka (1930) 1 WACA 63; Akuchie V. Nwamadi (1992) 8 NWLR (pt. 257) 214 at 226; Onyekwere V. Ezenankwo (1977) 5 FCA 89 – 95; Onyemaechi V. Nwaohamuo

(1992) 9 NWLR (pt. 265) 372; had held that the onus is upon the Plaintiff to establish the allegation of pledge and in order to discharge the burden he ought to prove the following incidents:

1. That the pledge took place in the presence of witnesses;

2. That there were parties to the pledge;

3. The pledgee sum;

4. That the pledgee was put in possession to the land so pledged and

5. The mode of redemption of the pledge property as well as.

6. That the transaction was given adequate publicity.

In the instant case the Plaintiff of page 3 testified in respect of the pledge of the land in dispute thus:

“The land is called OBUJI because it served a general born for the village…. We are in possession of this piece of land now Ifi son Orisakwe of Nzere Ugboma eloped with Uzoru to Imo River now in Rivers State. Uzoru was a wife to Ejekamba. Ejekamba sued Ifi at the native Court Oguta. Court messengers started hunting for Ifi. Nwabueze, Adizue was the eldest son of Nzere Ugboma family. Nwabueze went to Ejikamba and agreed with him to let him have a portion of their land and stop hunting for Ifi.

The dowry and all expenses made on Uzoru was 15 (Nwabueze pledged a portion of their land in lieu of 15) this land is called OBUJI which is now in dispute.” Lines 6 and 7 and 10 – 20 of the Records.

As rightly submitted by the Learned Counsel for the Appellant, the Customary Court reflected this evidence of pages 31 lines 3 to 32 lines 1 – 5 of the Records. The Court of first instance in the course of evaluation of the evidence of page 37 of the Records also recorded the evidence of the PW2 Jobi Mbrekpe who stated that he knew the location of the land in dispute although his land was not around the vicinity but his people are boundary neighbours and he had worked on the land with people many times.

According to him, he was aged 80 (Eighty) years then and that the said land was pledged lo the Defendants but had been redeemed. He had also testified that the pledge sum was 15 (N30.00) and he was of age when the pledge and redemption were contracted. He confirmed that Uzoru (late) married Ejekamba who was the oldest man in his maternal compound. Amadi was said to be the first husband of Uzoru who was re-married by

Ejekamba of the death of Amadi but he sued Ifi in Oguta Native Court and Nwabueze who was the oldest man in Nzere Ugboma family had to pledge the land in dispute to Ejekamba of the Palace of Eze Omuaribe, the Eze-Igwe of Orsu-Obodo.

The PW4 Benjamin Ejiofor also testified in the same vein that the land was pledged to his grand-father Ejekamba by Nwabueze of Umu Uzara Ugboma, Umeakpu village, Orsu-Obodo because of a woman called Uzoru who eloped with one Ifi. Amadi Omarigbo according to the witness, was in courtship with Uzoru and died and his said grandfather Ejekamba took Uzoru as a wife but she eloped with Ifi of Umunzere Ugboma family to Imo River. His said grandfather reported the matter to the elders of Orsu-Obodo and then to the Native Court Oguta.

Ejekamba was given Court Messengers to arrest Ifi or members of his family. To avoid the arrest members of Umu Nzere Ugboma pledged the land in dispute to his said grandfather for 15 in lieu of the bride price and Court expenses on Uzoru.

?The above pieces of evidence notwithstanding, the PW3 Innocent Nwabueze also a member of the Plaintiff/Respondent’s family testified in-chief of page

14b of the Records as follows:

“I know the name of the land. If is called OBUJI. I know where it situates. I do not know how the land got to my father. I grew up and saw him farming on it. I do not farm on the land now after the death of my father. I stopped working on the land when Ndupu said that the land belongs to him but I told him that it is not his land, that it belongs to my father. I reported to Mberekpe Sylvester (Chief) and he told me to leave the land for Ndupu. Ndupu is from Umuzeaja in Orsu-Obodo.”

Under cross-examination as regards the pledge transaction, the witness stated at the same page 14b lines 21 -23 thus: ?I used to see Ndupu Onumonu family on the land in dispute. I have never seen the plaintiffs nor anybody from their family farming on the land in dispute. My father did not tell me the land in dispute was on pledge.”

The Appellant and his witnesses were consistent that the land was never pledged by Nwabueze to Ejekamba. However, inspite of these denials, the Court of first instance held that:

“There was a Court action by Ejekamba of the Defendants family against Ifi of the

Plaintiffs family because of the unholy connection between them and their elopement to Imo River. The pledge episode can be sustained by this and buttressed by the evidence of PW4 and Exhibit “D”.

“The Defendants were in possession of the land in dispute when it was being held in that for PW4 and as long as it was on pledge to their family. Lands on pledge are redeemable no matter the number of decades, the pledge has lasted. The father of the first Defendant now was the Eze Ala and the oldest man in Orsu-Obodo at his death. The land in dispute is a sister land to Okikai land which was redeemed from one Pefer Nwobi of the instrumentality of Ndupu Onumonu (Late) and first Defendant who documented the transaction. They showed that the Defendants had genuine interest in the affair affecting PW4 and his family.” See pages 51 lines 35 – 38 to 52 lines 1 – 8 of the Records.

Earlier at page 51 lines 1 -9 of the Records, the Trial Court had held that:

“To appease the aggrieved Ejekamba, Nwabueze Ugboma pledged the land to him in lieu of fifteen pounds (15k being dowry and Court expenses PW2 corroborated the evidence of PW1 on the fact that

the land was some fine on pledge but has been redeemed from the PW4 by the Plaintiffs. PW4 corroborated the evidence of PW1 on the fact that his father died when he was a minor and that Ndupu Onumonu held his father?s landed properties in trust for him. PW4 on the same vein corroborated the evidence of PW1 on the fact that the Plaintiffs approached him for the redemption of the land in dispute and that he obliged them. The transaction was documented, tendered, admitted and marked Exhibit ?D?.?

As for the Customary Court of Appeal, the Learned Justice Abosi also held of page 166 lines 1 – 6 of the Records/page 9 of their Judgment concerning the purported pledge that:

“I equally fail to see the alleged contradictions in the evidence of pledge of the land and I equally fail to see any miscarriage of justice occasioned by the Lower Courts acceptance of the evidence of pledge. I hold therefore that the lower Court was right in holding that there was pledge of the land in dispute to the grandfather of the Appellant called Ejekamba by Umuezere-Ugboma family members to assuage the saved Ejekamba over the loss of his wife.”

Later at

page 167 of the Records/page 10 of the Judgment, His Lordship again held on the submission of the Learned Counsel for the Appellant’s and reference to the evidence of DW1 and DW2 (boundary neighbours) as having supported the case of the Appellant to the effect that they had never seen any of the Respondents farm on the dispute land but had only seen members of the Appellant’s family farm there, that:

“I do not see how these pieces of evidence coming from DW1 and DW2 advanced the case of the Appellant. There is evidence which the lower Court accepted that the land was pledged by the ancestors of the Respondents to the ancestors of the Appellant. If is a cardinal principle of Customary Law that pledgee of land is usually given possession of the land.

If is therefore clear that it is only the member of the Appellant?s family or the Appellant that would be in possession as a result or the pledge.”

Although the Learned Justice of the Customary Court of Appeal had stated the trite principle of pledge under Customary Law that the pledgee should be in possession as long as the pledge lasted, it is clear to me from the evidence adduced by the

Plaintiff/Respondent and his witnesses that what transpired (assuming the disputed land was actually handed over to Ejekamba in lieu of the dowry or bride price for the elopement of his purported wife Uzoru with Ifi of the Respondent’s family, was not a pledge properly so called under Custom. Apart from the hazy nature of the Native Court case which Suit Number was not stated as well as the year it was instituted since it would appear from Exhibits A, C, and D. that writing had been known to the people of Oguta, those who witnessed the pledge transaction were not stated nor was the mode of redemption of the pledge. If anything, the said disputed land was donated or forefeited in lieu of Uzoru’s bride price or dowry. Accordingly, the Learned Counsel for the Appellant and in line with the definition of the term “in lieu” by Black’s Law Dictionary Ninth Edition at page 558 (see also page 791 of the Seventh Edition) has rightly submitted that it means: “Instead of or in place of: in exchange or return for.?

Where, as in this case, the Ogbuji land was purportedly given to Ejekamba in exchange; in place, of ?instead of’ or in return for the

bride price of Uzoru and other marital expenses totaling 15=(N30) the Court of first instance as well as the Customary Court of Appeal could not seriously have held that the transaction was a pledge under Custom which was subsequently redeemable. The Learned Counsel for the Appellant had also in the course of his argument referred us to the ?BASIC IGBO CUSTOMARY LAWS: A GUIDE TO CUSTOMARY LAW PRACTITIONERS SECOND EDITION,” by Alike Udenwoke, MHA of page 101 where the Learned Author in Paragraphs 178 and 180 of page 102 defined Bride price to mean “…..a Compulsory Customary sum of money or valuable items made payable by a Suitor on the head of a bride for the intending marriage contract, although negotiable and the amount agreed upon, paid and accepted confirms the consent of the bride?s parents or guardian to the marriage.” Para 178 page 102.

In Paragraph 180 page 102 on the heading that ?BRIDE PRICE TERMINATES WITH THE DEATH OF WIFE,” the Learned Author further reasoned that:

?1. Where a wife in a valid marriage is dead, the bride price is permanently lost.

2. No Claim could be made in any form by the

husband over the refund of such bride price.

3. However, unsettled or balance of the partly paid bride price should on demand made to the widower or his relations be paid to the maiden family of the woman during the “OKWU OZU” preceding the burial of the wife.”

In the course of writing this judgment I stumbled across the : “AFRICAN INDIGENOUS LAWS” “proceedings of workshop (7 – 9 August, 1974) by the Institute of African Studies, University of Nigeria, Nsukka as Edited by Hon. Dr. T.O.S. Elias (then C.J.N). Dr. S. N. Nwabara, Director Institute of African Studies, University of Nigeria Nsukka) and Mr. C.O. Akpamgbo (Lecturer in Law, University of Nigeria, Enugu Campus) all now of blessed memory and in particular the Essay by the Hon. Justice A.N. Aniagolu (also of blessed memory) captioned. “Aspects of Customary Marriage And Divorce and Their Incidents Upon Family Life” AT PAGE 104.

?There, the Learned Judicial Icon commenting on the astronomical rise in bride price payments which prompted the Government of the then Eastern Nigeria to appoint the Committee on Bride Price Review whose Report led to the enactment of the Limitation of

Dowry Law (Cap. 7 6), Vol. IV, Laws of Eastern Nigeria, 1963 by the Regional Legislature Section 2 thereof which defined “dowry” or bride price to mean:

“…..any gift or payment, in money natural produce, brass rods, cowries or in any other kind of property whatsoever, to a parent or guardian of a female person on account of a marriage of that person which is intended or has taken place.”

From the above definition, where the Respondents purportedly parted with their Obuji Land in lieu or atonement for the bride of Uzoru with whom Ifi eloped to Imo River, in favour of Ejekamba (her purported husband), the bride price had been refunded in kind.

To worsen the matter, where the PW1 and indeed his witnesses apart from the PW3 who denied the existence of such pledge, had all admitted that Uzoru ran away from Amadi’s house when he died, and she subsequently died in her parents’ home of Umueri (see page 6 lines 20 – 21 of the Records) the bride price was permanently lost forever.

The bride price paid with the land was/is therefore perpetually irredeemable contrary to the holdings of the two lower Courts. I therefore agree

completely with the submission of the Learned Counsel for the Appellant that the two lower Courts’ findings were not in consonance with generally accepted Igbo Custom on pledge but on bride price and both Courts’ findings were therefore perverse and erroneous thereby occasioning the Appellant a miscarriage of justice.

I am not oblivious of the settled position of our Customary Law as was held in the celebrated cases of Agada Okoiko & Anor V. Ozor Ezedalue & Anor. (1974) 3 S.C. 15 at 30 – 35. Onobruchere & Anor V. Esegwe & Anor. (1986) 1 NWLR (Pt. 19) 799; (1986) LPELR – 2688 (SC); Agbo Kogi V. Addo Kogi (1933) 1 WACA 284, Ikeanyi V. Adighogu (1957) 2 ENLR 38 of 39, Orisharinu V. Mefue (1937) 13 NLR 181 and the recent Supreme case of Achilihu & Ors. Anyatonwu (2013) LPELR ? 20622 (SC); that in ordinary Customary pledge:

1. A pledge is perpetually redeemable and the pledgor’s family is entitled to redeem the pledged land for the amount of the original loan and for nothing more;

2. On redemption by the pledgor, a Pledgee of land is not entitled to compensation for putting the land to extra-ordinary economic uses

while in possession;

3. When pledged land is being redeemed by the pledgor or Successor-in-title, the Pledgee must account for benefits derived from exploitation of the land while in possession; and

4. The Pledgor retains the radical title which is not extinguished by the pledge but the Pledgor has the right of redemption no matter how long the land had been pledged.

SeeNwagwu v. Okonkwo (1987) 3 NWLR (pt. 60) 316 per Kazeem, JSC, which facts are almost on all fours with the present case where the Appellant mistook a grant of land in lieu of a person surrendered as an atonement for the one murdered, for a pledge.

In the above cited case, which emanated from Mbaise within the jurisdiction of this Court, the Appellants’ ancestors before the advent our Colonial masters, caused the death of one of the Respondents’ ancestors. The Respondents’ ancestors demanded atonement for the murder. Kpagba, one of the Respondents’ ancestors who was then a slave dealer gave out one of his slaves in return for a sum now valued N30.00. The Appellants’ ancestors gave the land in dispute to Kpagba which later devolved on the Respondents.

Just

like this present Appeal, in 1974, the Appellants tendered the N30.00 to the Head of the Respondents’ family who refused the amount. After moves to settle the dispute failed as in this Appeal also, the Appellants in that case brought the action claiming declaration of title to the land called Okpulo Nwogwo and for on order that the Respondents accept the redemption money. The Trial Court dismissed the Appellants’ Claims on the ground inter alia that the transaction was not a pledge of land per se for a loan of money but was a grant of land in lieu of a person surrendered as an atonement for the one murdered. The Appellant’s appeal to the Court of Appeal was dismissed and on further appeal to the Supreme Court, their Lordships of the Apex Court also dismissed the case and affirmed the decision of the trial Court and Court of Appeal on the basis that the transaction between the parties was not a pledge of land.

Going by the above decision of the Supreme Court which I adopt line, hook and sinker, I reiterate that the two lower Courts in their concurrent findings misapprehended the true purport of the transaction between Nwabueze and Ejekamba which

was an exchange of land in lieu of bride price and marital expenses in atonement for the purported elopement of Ifi with Uzoru the wife of Ejekamba and not a pledge as purported by the Respondent and supported by their Lordship of the Customary Court of Appeal and indeed the trial Customary Court.

There is no doubt and both the Learned Counsel for the Appellant and Respondent have hit the nail on the head when they cited the authorities of Olusanya v. Osinleye (2013) ALL FWLR (Pt. 693) 1930 S.C., Anyakora V. Obiakor (2005) ALL FWLR (pt. 268) 1662; Biezam Exclusive Guest House Ltd. v. U.H.S. & L. Ltd. (2012) ALL FWLR (Pt.634) 136, per Adekeye, JSC in Military Government of Lagos State V. Adeyiga (2012) ALL FWLR (Pt. 616) 396; Oduneye V. The State (2001) 13 WRN 94 Ratio 12, Biariko v. Edeh – Ogwuile (2001) 20 W.R.N 1. Ratio 1, INCAR Nig. Ltd V. Adegboye (1985) 2 NWLR (Pt. 8) 453 and Ramonu Atolagbe V. Shorun (1985) 4 S.C. 250 at 282 (1985) 1 NWLR (Pt. 2) 360 at 373; on the need for Appellate Courts to be loathe in interfering with the concurrent findings of facts by two lower Courts as in this case and the circumstances under which an Appellate can

so interfere.

In the recent case of Oguanuhu & Ors. v. Chiegboka (2013) Vol.221 LRCN (Pt. 2) 111 at 130 Paras. EE – JJ to 131 Paras. A – U per Galadima, JSC; restated the settled position of the Law that:

“Findings made by the trial Court is based on the evidence adduced before it. It is the primary duty of the Court of trial to ascribe probative value on the evidence placed before it, when the trial Court fails to perform this duty, then the appellate Court can step in to perform such function. Even so, the appellate Court is cautious when performing this functions and can only do so when the demeanour of witnesses is not in question. See Atolagbe V. Shorun (1985) 1 NWLR (Pt. 2) 360; Narumo & sons Ltd. v. N.B.T.C. Ltd. (1989) 2 NWLR (pt. 106) 730; Okafor V. Idigo (1984) 1 SCNLR 481 at 512.

Otherwise, the corollary to the above principle is the presumption that the decision of a trial Court on the facts is correct. An Appellate Court cannot and ought not substitute its own view of fact for those of the trial Court which heard evidence and watched the demeanour of witnesses as they testified. See Ohannaka V. Achugo (1998) 9 NWLR

(Pt.564) 37…

An Appellate Court will only interfere with findings of fact of a trial Court if it is shown that the conclusion reached is not in tune with the current or flow of evidence or that the decision was wrong or perverse.”

Finally on the vexed question of concurrent findings, the Emeritus Law Lord posited that:

“As it pertains to the concurrent findings of two lower Courts an appellate Court will not interfere unless there be exceptional circumstances to justify such interference. Nor would there be interference with the Judgment of two lower Courts unless there are substantial errors in Law or procedure leading to miscarriage of justice. See Akinloye V. Eyinola (1968) NWLR 92; Enang V. Adu (1981) 11 – 12 S.C. 25; Ohannaka v. Achugwa (1999) 9 NWLR (pt. 564) 37 and Okulate v. Awosanya (2000) 1 SC 107; (2000) 74 LRCN 167.”

I am of the candid view that in the circumstances of this case there is substantial error of Law committed by the two lower Courts when they held that what transpired between the ancestors of the parties was a pledge when in fact and Customary Law, it was land given to Ejekamba by Nwabueze in lieu of the

bride price of Uzoru as a result of her elopement with Ifi who was purportedly sued in the Oguta Native Court and hunted with Court messengers thereby atoning for whatever damages the said Ejekamba had suffered, assuming there was such a transaction which to me is doubtful as there was no evidence of the Suit Number and the year such a Suit was instituted

For whatever it is worth, the Judgments of the two Courts declaring title to the Respondent and holding that the land has already been redeemed is not only perverse but occasioned the Appellants miscarriage of Justice. The Appellants’ Appeal is meritorious and hereby succeeds. The Judgment of the Customary Court of Appeal Imo State sitting at Owerri delivered on the 27th day of June, 2013 affirming the decision of Customary Court of Oguta Judicial District, Holden at Kalabari Brach II in Suit No. CC/OU/41/97, delivered on the 27th day of November, 2007, is hereby set aside. In its stead I set aside the said Judgment and dismiss the Claims of the Plaintiffs/Respondents in the lower Trial Customary Court with N50,000.00 in favour of the Defendants/Appellants.

PETER OLABISI IGE, J.C.A.: I have the privilege of reading in advance the judgment of my brother, AGUBE JCA.

I am also of the view that the Appellant’s appeal be allowed. I endorse the consequential order contained in the said judgment.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the leading judgment just delivered by my learned Brother, IGNATIUS IGWE AGUBE, JCA and I am in agreement with the reasoning and conclusions in adjudging the Appeal a success. It is hereby allowed with a cost of N50,000.00 in favour of Appellant.

?I also abide by other consequential orders made thereto.

Appearances

Not statedFor Appellant

AND

M.I. Nwachukwu, Esq.For Respondent