3PLR – BRENDAN IWUCHUKWU V. DAMIAN ANYANWU
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]
BRENDAN IWUCHUKWU
V.
DAMIAN ANYANWU
COURT OF APPEAL (PORT HARCOURT DIVISION)
MONDAY, 19TH APRIL, 1993
CA/E/399/86
3PLR/1993/34 (CA)
OTHER CITATIONS
8 NWLR (Pt. 311) 307
BEFORE THEIR LORDSHIPS
SYLVESTER UMARU ONU, J.C.A. (Presided)
REIDER JOE JACKS, J.C.A.
EMMANUEL TAKON NDOMA-EGBA, J.C.A. (Read the Leading Judgment)
BETWEEN
BRENDAN IWUCHUKWU
AND
1. DAMIAN ANYANWU
2. CLETUS OPARA
MAIN ISSUES
APPEAL -Conflicts in evidence -Failure of trial court to resolve same – Whether appellate court will resolve.
APPEAL – Evaluation of evidence – Trial court basing decision on improperly evaluated evidence – Whether appellate court will interfere.
APPEAL – Findings of fact by trial court – When appellate court will examine.
APPEAL -Trial de novo -Order of-When necessary to make -When unnecessary.
CONTRACT -Pledge as a specie of contract-Need for concept of “reasonableness” and “reasonable time” to apply thereto.
COURT – Findings of fact by trial court – When appellate court will examine.
COURT – Swearing to juju or deciding disputes by recourse thereto – Attitude of court thereto.
EQUITY – Pledge – Nature of – Existence of – How determined.
EQUITY – Pledge as a specie of contract – Need for concept of “reasonableness” and “reasonable time” to apply thereto.
EQUITY – Pledge of land – Redemption of – Whether time bar operates to encumber or foreclose – Remedy of pledgor in event of pledgee’s refusal to deliver land to him.
EVIDENCE – Presumptions – Presumptions under section 148(d) of the Evidence Act – When raised.
EVIDENCE – Proof – Onus of proof of an assertion – On whom lies – Failure to discharge – Effect – Sections 134, 138 and 145 of the Evidence Act 1958.
JUDGMENT & ORDER – Trial de novo – Order of – When necessary to make – When unnecessary.
LAND LAW – Pledge – Nature and existence of – How determined.
LAND LAW – Pledge of land – Redemption of- Whether time bar operates to encumber or foreclose – Remedy of pledgor in event of pledgee’s refusal to deliver land to him.
PRACTICE AND PRACTICE – Appeal – Conflicts in evidence – Failure of trial court to resolve same – Whether appellate court will resolve.
PRACTICE AND PROCEDURE -Appeal -Evaluation of evidence -Trial court basing decision on improperly evaluated evidence -Whether appellate court will interfere.
PRACTICE AND PROCEDURE – Findings of fact by trial court – When appellate court will examine.
PRACTICE AND PROCEDURE – Trial de novo – Order of – When necessary to make – When unnecessary.
MAIN JUDGMENT
NDOMA-EGBA, J.C.A . (Delivering the Leading Judgment): The plaintiff now appellant before us sued the defendants, herein respondents, at the Okigwe High Court in Imo State for:
“1. Declaration of title to a piece or parcel of land known as and called “Ala Ikpa Anyanwu” situated at Umuarighi Umuezeala-Ama Ehime in Mbano Local Government Area, Okigwe Judicial Division (now Mbano/Etiti Judicial Division) the annual value of which is N5.00.
- N300.00 damages for trespass.
- An injunction perpetually restraining the defendants by themselves, their servants, agents or workmen from entering the said “Ala Ikpa Anyanwu” land in or any way interfering with the plaintiff’s ownership and possession of same.”
Pleadings were duly filed and delivered. Upon these and on the evidence led in support of them, the learned trial Judge, Okoroafor J, dismissed all the plaintiff’s claims. He found:
“In the result I hold that the land which is the subject matter of this suit was on pledge before it was sold, the 1st defendant cannot sell it to another person, for once a pledge always a pledge and nobody can sell what he has not got. The plaintiff’s claim for title or declaration of certificate of occupancy fails and it is dismissed. The claim for perpetual injunction also fails. The whole action fails and is dismissed. The plaintiff can go to the 1st defendant for another piece of land.”
This appeal is against the judgment aforesaid. It is brought on two original grounds appended to the Notice of Appeal. They read, inter alia, as follows:
“(i) That the judgment is unwarranted and cannot be supported by the weight of evidence adduced.
(ii) That the judgment is erroneous in point of law.
(iii) That further grounds of appeal will be filed after the receipt of the record of proceedings from the High Court Registry, Mbano/Etiti.” The essential facts and circumstances upon which the learned trial Judge relied for his judgment appear uncomplicated.
Plaintiff/appellant’s case in summary and with reference to his pleadings is that the respondents belong to Umuezeala-Ama in Mbano Local Government Area. Their kindreds are respectively Umuagha and Umudumeze. The land in dispute hereafter referred to as the land is known as “Ala Ikpa Anyanwu” and is situate in Umuarighi in Umuezeala-Ama. The boundaries of it are particularly delineated and verged pink in Survey Plan No. UND/23/77 dated 29th day of July, 1977. It is filed with plaintiff/appellant’s statement of claim.
In 1965, Valentine Onuoha a member of the defendants/respondents’ family sold the land verged green to the plaintiff/appellant. The transaction was an outright sale and was conducted overtly and in accordance with the custom of the area. Subsequently, it was written into document dated 6th day of April, 1965 with the plaintiff/appellant as the vendee. The said document was witnessed by three persons whose names appear in paragraph 5 of the plaintiff/appellant’s statement of claim.
A deed was later drawn up by a solicitor and signed by the parties to it: Valentine Onuoha as the vendor and the plaintiff/appellant as the vendee on the 6th of September, 1969. The transaction was conducted in the presence of witnesses.
Another piece of land was sold to the plaintiff/appellant by the 1st defendant/ respondent on record. The deal was also an outright sale and was witnessed by members of the 1st defendant/respondent’s family on the one hand and those of the plaintiff/appellant on the other.
Again in 1967, the 1st defendant/respondent himself sold yet another piece of land to the plaintiff. This last sale was also in accordance with the native law and custom prevailing in the area. The terms of the agreement were written down and executed on the 18th of January, 1967. 1st defendant/respondent presented himself to the plaintiff/appellant as an absolute owner in possession of the said portion of the land. The 1st defendant/respondent had lived at home and was at home at all times material to the sale transactions pleaded.
Plaintiff/appellant stated further in his pleadings thus:
“11. In 1969 the plaintiff caused the two transactions with 1st defendant to be embodied in one document written by a solicitor and dated the 22nd September, 1969, which document was executed by the first defendant in the presence of witnesses.
- The two portions sold to the plaintiff by the first defendant is bordered brown in the Survey Plan No. UND/23/77.
- The plaintiff took possession of the three parcels of the land comprising the land in dispute from the date of their respective purchase, farming same and reaping the economic trees on same including palm trees, a mango tree and a pear tree tube).
14 The second defendant who had ordinarily been resident at home knew of plaintiff’s possession of the land in dispute at all material time.
- In December, 1975 one Luke Diala and Mrs. Bridget Nwaeje heaped stones on the land in dispute, plaintiff protested and ordered them to remove the stones. They did. Apart from this incident neither the defendant nor any member of the defendants’ family challenged the plaintiff’s title to and possession of the land in dispute since it was sold to the plaintiff by Valentine Onuoha and the first defendant.
- On or about the 14th Mac. 1977 the plaintiff hired some women to clear the land in dispute for farthing as he was wont to do. The . second defendant entered the land drove away the plaintiff’s labourers and caused them to be arrested by the
Police at Mbano and for the first time claimed that the land is his.
- The first defendant supported him in this claim and has collusively admitted that the land in dispute was on pledge to him by the second defendant.”
The admitted facts in a brief joint statement of defence filed were that the description of the land and the features thereon are correctly reflected in the Survey Plan No. UND/23/77 dated the 29th day of July, 1977 produced and filed for the purpose of this case by the plaintiff/appellant. Iheanetu Iwuoha gave the land to Valentine Onuoha to reside thereon. The former is an uncle to the latter. It is implied by the admission that Valentine Onuoha was lawfully on the land. The boundaries of the land as pleaded by the plaintiff/appellant in paragraph 3 of the statement of claim are admitted. The defendants/respondents pleaded specifically in that regard thus:
“4. The defendants aver that the land the subject matter of this dispute is bounded on the south by the land of one Iheanetu Iwuoha, the uncle of the 2nd defendant, and that it was Iheanem Iwuoha who gave the land to Valentine Onuoha to reside on. The defendants admit the rest of paragraph 3 of the statement of claim.
- The defendants admit paragraph 4 of the statement of claim save that the land on the south purported to belong to Valentine Onuoha was shown to him by one Iheanetu Iwuoha the uncle of the 2nd defendant.
- The defendants say that Valentine Onuoha is a member of the family of 2nd defendant. The 2nd defendant who is the relation of Valentine Onuoha vigorously denies paragraph 5 of the statement of claim and would put the plaintiff to the strictest proof thereof. Defendants/respondents categorically denied that they were parties to the land transactions claimed by the plaintiff/appellant nor were they privy to any of them.
Defendants/respondents did not however disclaim knowledge of the existence of the agreements mentioned neither did they directly deny that plaintiff/appellant had at least been in factual possession of the land for almost two decades before this litigation commenced.
The 1st defendants admitted however that he, himself sold apiece of the land to the plaintiff/appellant in April, 1967 (see paragraph 8 of the statement of claim). He claimed that he was the absolute owner of the parcels of land sold to the plaintiff/ appellant. (see paragraph 9 of the statement of claim). Paragraphs 8, 9, and 10 of the statement of defence are important and are therefore reproduced, verbatim, hereunder:
“8. The 1st defendant admits paragraphs 8 and 9 of the statement of claim but says that having inherited the pieces or parcels of land on the death of his father, he honestly believed he had absolute interest over the pieces of land aforesaid. It was until he had sold the land in dispute to the plaintiff that the 2nd defendant called his attention and informed him the land was on pledge
- The 1st defendant further aver that at first he resisted the claims of the 2nd defendant over the land until the matter was adjudicated upon by the village elders who found as a fact that the land was pledged to his father by the father of the 2nd defendant.
- The 2nd defendant admits paragraph 10 of statement of claim but denies any knowledge of the sale by 1st defendant to the plaintiff until after the transaction had long been concluded. The 2nd defendant further aver that on being informed of the sale he informed the 1st defendant in 1965 that the land he, 1st defendant sold to the plaintiff was on pledge and that he, 2nd defendant, wanted to redeem the pledge. When the 1st defendant denied his rights and interests over the land he summoned the village elders who looked into the matter and found as a fact that the land was under pledge whereupon he redeemed the pledge from 1st defendant.”
1st defendant/respondent did not dispute the plaintiff/appellant’s claim that he, later, caused the two land transactions to be written down and consolidated into a single document; a solemn agreement and was executed by him, 1st defendant/ respondent. The parties committed themselves in a Deed.
Defendants/respondents did not file any survey plan for the purpose of the case. Obviously, they adopted and used Survey Plan No. UND/23/77 aforementioned filed by the plaintiff/appellant. It is significant to note now that there are no counterclaims to the plaintiff/appellant’s action.
On his part, the 2nd respondent admitted that he “had been ordinarily resident at home.” He knew that the plaintiff/appellant was in possession of the land from the date of purchase and had been extensively farming and cultivating thereon without any disturbance whatsoever. See Paragraphs 11 and 15 of the statement of claim and 11 and 12 of the statement of defence. 1st defendant claimed however, that he was unaware of the activities of the plaintiff/appellant on the land. He averred:
“15. The defendants say they are unaware of the facts set out in paragraph 15 of the statement of claim.
- The defendants deny paragraph 16 of statement of claim but 1st defendant avers that in 1965 he informed the plaintiff that 2nd defendant is claiming ownership of the land he, 1st defendant sold to the plaintiff. After the arbitration and findings of the village elders, he informed the plaintiff of the situation and offered to convey to the plaintiff some other pieces of land in lieu of the pieces of land in dispute which now belongs to the 2nd defendant.
The 1st defendant further says he had gone to the plaintiff with drinks in company of one Onuoha Nnadozie and one Aaron Okoronkwo on two different occasions to plead with the plaintiff to accept other pieces of land in exchange for the one in dispute. 17. The first defendant denies paragraph 17 of the statement of claim and says that the facts are as contained in paragraphs 9 and 10 of statement of defence.”
In course of hearing of the matter at the court below, the plaintiff/appellant and the 1st respondent gave evidence in chief to support their averments in their respective pleadings.
One Ballantyne Onuoha supported plaintiff/appellant’s case at the hearing while two witnesses testified for the Defendants/respondents. I shall duly refer to the evidence recorded at the hearing in order to form my own impression of the whole of it, seeing that the consideration of this appeal rests largely on fact.
Early conclusion of the determination of this case was held up by the defendants/respondents. They were spurred to action by the plaintiff/appellant’s action to have the appeal decided on the plaintiff/appellant’s brief. Defendant/ respondents reacted and sought an enlargement of time within which to file their brief of argument. They were however, quick to raise a preliminary objection to plaintiff/appellant’s request for extension of time to file his brief. This was obviously a ploy to stall early decision on the matter. This would be clear later. Defendants/respondents eventually filed their joint brief of argument.
Plaintiff/appellant was permitted to file and argue additional grounds of appeal. These, omitting their particulars which are on record, read as follows:
“1. ERROR IN LAW AND MISDIRECTION OF FACTS:
The learned trial Judge erred in law by not weighing the case of the parties on that imaginary scale explicit in Mogaji & Ors v. Odofin & Ors. (1978) 4 S.C. 91 at P. 93 and Chief M.A. Okupe v. B.O. Ifemembe (1974) 1 All N.L.R. 375.
- ERROR IN LAW:
The learned trial Judge erred in law by failing to consider the material contradictions in the evidence of the respondents and the latter’s witnesses, an exercise that occasioned a miscarriage of justice.”
Preliminaries having been settled, the parties filed and exchanged their respective briefs of argument as required by the rules.
The facts of the case were rather copiously reiterated in the plaintiff/ appellant’s brief. Only a single question was identified therein for determination. It reads:
“1. Did the trial court properly evaluate the evidence by weighing the case of the parties on that imaginary scale explicit in Mogaji & Ors v. Odofin & Ors (1978) 4 S.C. 91 at page 93 and as a corollary did the party on whom the burden of proof rests discharged the burden of proof, especially when the defendants had admitted all the transactions and acts of possession and ownership of the plaintiff commencing from 1965 to 1977?”
No issues were raised for determination by defendants/respondents. There is however, a suggestion at page 2 of the defendants/respondents’ brief that they “adopt the introduction in the plaintiff/appellant’s brief’.
This part of the plaintiff/appellant’s brief merely named the judge who presided and the date of the dismissal of his claims. The situation is, indeed, vague. Having not identified any issue for determination, it is valid, I think, to presume that they, defendants/respondents adopted the single issue expressed and set out for determination in the plaintiff/appellant’s brief. The facts do not appear to be materially disputed. The appeal rests mainly on fact.
F.C. Dike, Esq. for the plaintiff/appellant contends in the brief he prepared that the whole evidence was. not properly assessed, appraised and evaluated by the learned trial Judge. He referred to the judgment in Mogaji & Others v. Odofn & Others (1978) 4 S.C. 91 at 93. Counsel was of the view that defendants/respondents’ case supported that of the plaintiff/appellant. He emphasized that the evidence of the plaintiff/appellant in regard to the fact that he, had been openly and effectively in possession of the land for many years, to the exclusion of the defendants/respondents was not denied. The 2nd defendant/respondent unlawfully entered the land in 1977. Both he and the 2nd defendant/respondent lived in the same community as the plaintiff/appellant. The former admitted that he saw the latter on the land in 1965. The fact of his possession of the land is therefore undeniable.
I should say at once that the foregoing submission is tight. Quite clearly, the plaintiff/appellant’s case was substantially strengthened by the defendants/respondents. The decisions in Victoria Aduke & another v. Solomon Aiyelabola (1942) 8 WACA 43 and Udofta v. Afa (1940) 6 WACA. 216 are therefore pertinent.
1st defendant/respondent’s mother could have been a vital witness do resolve the issue whether or not the land had ever been on pledge. She witnessed the transactions between the plaintiff/appellant and the defendant/respondents over the land. She cannot now wash her hands off the matter or be kept out of the matter without the presumption being raised under section 148 of the Evidence Act that she was deliberately avoided to prevent a disparaging disclosure in the defendants/respondents’ case, the base of which is that the land was on pledge. Ekwedike Odoemena’s (QW2) evidence on the point was rather evasive and obscure.
The defendants/respondents,, having stated that the land was on pledge, the evidential burden of proving that shifts onto them. See sections 134,138 and 145 of the Evidence Act. The failure on their part to adduce evidence in proof of it, reinforces plaintiff/appellant’s version of the case. See Kodilinye v. Oda (1935) 2 WACA 336 and David Fabunmi v. Abigail Agbe. (1985) 1 NWLR (Pt. 2) 299; (1985) 3 S.C. 28 at page 73.
Besidesthat,thecontradictionsinthedefendants/respondents’caseareobvious. With these, the defendants/respondents could not have discharged that shifting onus on them.
Generally, a pledge is a pledge. Time cannot clog the equitable right to redeem the pledge.
Generally, all pledges are redeemable on tender of the pledge money. See Bank of England (Governor & Co.) v. Glover (1702) 92 ER. 3. There is right of action for the refusal of the pledgee to deliver the land to the pledgor.
The authorities are also clear that a pledge is in the nature of contract with a right of action assured to the pledgee.
Whether in the circumstances of the instant appeal there was a pledge depends on the credibility of the evidence adduced in support of the assertion by the 1st defendant/respondent. I will advert to this fully later.
1st defendant/respondent introduced the question of pledge in paragraphs 8, 9 and 10 of the joined statement of defence. They read;
“8. The 1st defendant admits paragraphs 8 and 9 of statement of claim but says that having inherited the pieces or parcels of land on the death of his father, he honestly believed he had absolute interest over the pieces of land aforesaid. It was not until he had sold the land in dispute to the plaintiff that the 2nd defendant called his attention and informed him the land was on pledge.
- The 1st defendant further averred that at first he resisted the claims of the 2nd defendant over the land until the matter was adjudicated upon by the village elders who found as a fact that the land was pledged to his father by the father of the 2nd defendant.
- The 2nd defendant admits paragraph 10 of statement of claim but denies any knowledge of the sale by 1st defendant to the plaintiff until after the transaction had long been concluded. The 2nd defendant further aver that on being informed of the sale, he informed the 1st defendant in 1965 that the land he, 1st defendant sold to the plaintiff was on pledge and that he, 2nd defendant wanted to redeem the pledge. When the 1st defendant denied his rights and interests over the land he summoned the village elders who looked into the matter and found as a fact that the land was under pledge whereupon he redeemed the pledge from 1st defendant.”
It should be stressed that the equitable right of redemption of a pledge on tender of the pledge money is never encumbered. If no particular day appointed for redemption is agreed, the pledgor may redeem the pledge at any time. See Halsbury’s Laws of England (3rd Edition) Volume 29, pages 218 and 219. This in my view could not be in keeping with the concepts of “reasonableness and for a contractual obligation to be performed “within reasonable time” when time is not stated, a pledge being essentially a contract. A firm decision on this point by the highest tribunal of this country is overdue. Some legislative action or review may be necessary.
By the paragraphs quoted hereinbefore, I think the defendants/respondents’ statements in their joint pleadings cannot be accepted as positive and specific rebuttal of the plaintiff/appellant’s averments in the statement of claim.
It is however, recognized by both parties that the crucial question to be answered in this appeal is whether the land (parcels of land) was in fact on pledge to the 2nd defendant/respondent’s late father. Connected with this, is whether the interest of the latter is transmissible on his death to the 2nd defendant/respondent. The standing of the latter in the family is not fixed. There were no Letters of Administration tendered. No certificate of next of kin was produced in court either. The situation would have been clearer if the 2nd defendant/respondent had disclosed definitely the source of his information that the land was a pledge to his late father.
Ekwedike Odoemena (D.W.2) does not appear to be a reliable witness as would be clear shortly, although the learned trial Judge believed him completely. For better appreciation of the worth of his evidence, it is reproduced in extenso, with my own observation’s:
Admittedly, Valentine Onuoha who overtly sold one of the three parcels of land to the plaintiff/appellant was on that piece of land in right of his membership of the kindred. It was given to him by Iheanatu Iwuoha, an uncle to the 2nd defendant/respondent on record. His transaction with the plaintiff/appellant about the said piece of land was therefore valid. There was no protest by anyone in the family until over twenty years after the sale. The evidence of Onuoha Nnadozie threw more light on the history of the land. See Exhibit “F.”
On the issue of pledge the 2nd defendant/respondent had this to say:
“I know the plaintiff. I also know the 1st defendant. I know the land in dispute. The land is known as and called “Ishinkoro Ikpa.” The plaintiff is my friend. We used to help each other when we are in difficulty. There is a land which my father pledged to the father of the 1st defendant. When I approached the 1st defendant to redeem the land from him he refused. We called the Amala to look into the matter. The case lasted for one year. The people who know something about the land advised the 1st defendant to accept the redemption fee. There has never been any dispute between the 1st defendant and the plaintiff in respect of the land in dispute. I did not know that the 1st defendant sold the land to the plaintiff before I went to redeem the land. When I heard about the sale, I asked the 1st defendant to swear on juju but he refused to do so. The mother of the 1st defendant advised him not to do so because she knows that the land was pledged to his father. The Amalas asked me to redeem the pledge. I paid the redemption fee of £4 or N8.00. After paying the redemption fee I entered the land. When I entered the land the plaintiff sued me that I trespassed on his land. I did not know that the plaintiff granted the land to Luke Diala and Bridget Nnaji.
I knew about it after I have redeemed the land. I know one Simeon Adim. The 1st defendant sold a portion of the land in dispute to Simeon Adim and the other to the plaintiff. I am not going to pay N300.00 damages to the plaintiff and I am claiming the land as my father’s land which was pledged. I do not admit that the court will grant the plaintiff injunction restraining me from entering the land.”
One Ekelaka Onyiriwu supported the defendant/respondents’ case at the court below. He stated on oath on the Bible that the land was the property of the 1st defendant/respondent’s father. He was told about this by an uncle of the 2nd defendant/respondent, Iheanatu. He concluded rather abruptly:
“The 2nd defendant went to redeem the land from the 1st defendant, but he told him that he has sold the land to the plaintiff. The 2nd defendant paid £4 or N8.00 to the 1st defendant to redeem the land. the Amalas were summoned to decide the matter. I was one of the Judges. The Amalas looked into the matter when the 1st defendant refused to give the 2nd defendant, the Amalas decided that the 1st defendant should swear on a juju to show that the land belongs to him. The mother of the 1st defendant told him that the land in dispute was pledge to his father and advised him not to swear on the juju.”
It is a matter of regret that the learned trial Judge made no observations whatsoever on the quality of this evidence which was clearly hearsay.
Ekwedike Odoemena took oath on the Bible and testified for the defendants/ respondents. He is related to the 1st defendant/respondent. According to this witness, the father of the 2nd defendant/respondent pledged the land to the 1st defendant/respondent’s father.
The latter was a little boy at the time of the transaction. He stated:
“One early morning the 2nd defendant came and told me to come to the house of the 1st defendant for an urgent discussion. I went to the house of the 1st defendant and saw many people there.
I asked them what was the matter . They told me that the 1st defendant sold the land of the father of the 2nd defendant. The 1st defendant told me that he sold his own land and not that of the 2nd defendant. He pledged the land to the plaintiff. It was decided that the 1st defendant swear. I told him that it was wrong for him to swear and he did not. I was present when the father of the 2nd defendant took the sum of £4 or N8.00 from the father of the 1st defendant as the pledge money for the piece of land. I am the head of the family of the 1st defendant. I was not present during the transaction between the 1st defendant and the plaintiff. In our custom the eldest man in the family will be present during a sale of land belonging to a member of the family. If I was present during the transaction 1 would have not permitted it because the father of the 2nd defendant pledged the land. The relatives of the 1st and 2nd defendant to pay N8.00 or £4 to the 1st defendant to redeem the land. The 2nd defendant did so. The 1st defendant accepted it.”
Odoemena did not state his age. He could not say even by a rough estimate when the pledge transaction took place.
Defendants/respondents appear to have been in desperate need for a witness who could clinch in their case.
Odoemena was unable to gamble successfully. He claimed to be the head of the family but shut his eyes against the land transactions that had been going on with the plaintiff/appellant for over two decades before this case was brought to court. Undoubtedly, he had been passing and repassing near the land but for twenty years he could not alert his family of the plaintiff/appellant’s effective presence on the land which was generally known in the community. If the learned trial Judge had adverted his mind to these wide discrepancies in the evidence of the defendant/ respondents, his conclusion would have been reasonably and fairly balanced on the scale.
I return to the evidence of Onuoha Nnadozie (DW 1). The 1st defendant/ respondent is related to him. He knew his father and grandparents who died long ago. He was firm and direct in his evidence that the plaintiff/appellant bought a piece of the disputed land from the 1st defendant/respondent in his (PW1) presence and that of his mother. The former used the proceeds of the sale to perform the funeral ceremony of the late father. Part of these was used to pay his school fees. The question of pledge did not arise until the plaintiff/appellant sued the defendants/respondents. 1st defendant/respondent’s mother advised him not to swear to any juju because there was no truth in the claim that the land was pledged. Moreover, 2nd defendant/respondent had protested that 1st defendant/respondent wrongfully sold his (2nd defendant/respondent’s land) to the plaintiff/appellant. There was pressure on him (1st plaintiff/respondent) to disgorge the proceeds of the sale. This, to my mind, accounts for the despairing effort on the part of the 1st defendant/ respondent to persuade the plaintiff/appellant to accept other pieces of land. The latter remained adamant. The sale transactions having been completed and he is firmly in possession of the three pieces of land. The issue of pledge belatedly raised is, I think, afterthought to becloud the 1st defendant/respondent’s obligation to the 2nd defendant/respondent for the wrongful sale of his land to the plaintiff/ appellant. There are remedies open to him if the 2nd respondent desires to pursue them. He cannot however, deprive the plaintiff/appellant of the land he had held, undisturbed, for years.
On the authority Awobiyi v. Igbalaiye (1965) 1 All N.L.R. 163, this court is competent to examine a finding of fact if the trial court failed to take advantage of having seen and heard the witnesses.
The conflict in the joined statement of defence is apparent. The 1st defendant/respondent’s averments are distinctly different from those of the 2nd defendant/respondent, each beating to a separate tune. See especially paragraph 14 and 16 of it. The only agreement is the denial of liability to the plaintiff/ appellant’s claims. The 1st defendant/respondent stated that he had pleaded with the plaintiff on a number of occasions in the presence of Onuoha Nnadozie and Aaron Okonkwo to forego his claims on the land and accepted other pieces of land in exchange. He refused. Probably the pieces of land he, plaintiff/appellant claimed are enhanced in value. That is a far reaching admission on the part of the 2nd defendant/respondent.
The issue of customary arbitration was raised in paragraph 10 of the joined statement of defence thus:
“When the 1st defendant denied his rights and interest over the land he summoned the village elders who looked into the matter and found as a fact that the land was under pledge whereupon he redeemed the pledge from 1st defendant.”
The 1st defendant/respondent did not testify at all at the court below. Apparently, the 2nd defendant/respondent did so for himself and on behalf of the 1st defendant/ respondent on record. He, 2nd defendant/respondent, merely referred to a customary arbitration and said on oath:
“When I approached the 1st defendant to redeem the land from him he refused, we called the Amalas to look into the matter. The case lasted for one year. The people who knew something about the land advised the 1st defendant to accept the redemption fee”
He added that the customary arbitration lasted for one year. The composition, the names of the Amalas who participated in it, where and when it was held were not in evidence neither was the long delay in giving the advice; distinct from a decision, was explained.
The plaintiff/appellant was not involved in the said customary arbitration, less saying that he submitted to it. The conclusion of the learned trial Judge was therefore irrelevant to him (plaintiff/appellant).
The belief of the learned trial Judge that disputes are decided by swearing juju may well be true as a matter of the past. In thus century that would be a retreat to trial by ordeal which is unthinkable any more than swearing juju as a method of proof. Excepting PW1, Onuoha Nnadozie who swore on “Okwaramba juju,” all other witnesses swore on the Bible which is as valid as swearing on the Koran. We cannot now reel back to superstitious fear and forswear our religious faith. Indeed, it is known that witnesses had sworn by the gum sticks or cutlasses. Such witnesses had never professed any religious faith. Their pagan ways may be respected, depending on which courts they are testifying.
This court will not concern itself with the conflict of evidence before the trial court which it failed to resolve. See Okoye v. Kpajie (1972) 6 S.C. 176. It will however, intervene if the decision of the trial court is based on an improper evaluation of the evidence. See Seismograph Service v.Akporuovo, (1974)6S.C. 119. Sowemimo, J.S.C. (as he then was) put it succinctly that an appeal court will always evaluate evidence and probably reach different decision from that of the trial court if all that was relied on by the trial Judge was his belief or disbelief without properly evaluating the evidence before him. That is what I have done in this case.
With total respect, the trial Judge in this case was not objective in his conclusions. He appears to have moved on one track only, ignoring the plaintiff/ appellant’s side of the case. His decision was not supported by the evidence recorded and should be disturbed.
In view of what has been said, this appeal succeeds and is accordingly allowed. The judgment of the court below is set aside. The plaintiff/appellant’s claims succeed. If the case wholly depended on the improper evaluation of the evidence, a retrial would have been necessary. The perversion of the judgment appealed against is fundamental, thus making a trial de novo futile and impracticable. I am fortified in this view by the judgment in Rabiu v. The State (1981) 2 NCLR 293; (1980) 8/11 S.C. 130, applicable by analogy.
Costs to the plaintiff/appellant is fixed at N800.00.
ONU, J.C.A.: I have been privileged to read in draft the lead judgment of my brother, Ndoma-Egba, J.C.A., just read and with which I am in entire agreement that the appeal be and is hereby allowed. I subscribe to the consequential orders made therein.
JACKS, J.C.A.: I agree.
Appeal allowed.
