Benedict Agwunedu & Ors v. Christopher Onwumere

 I have had the privilege of reading in draft the judgment read by my learned brother Mohammed, J.S.C. I entirely agree that the appeal has merit and that it should be allowed. Accordingly, the appeal is hereby

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allowed, the decision of the Court of Appeal is set aside and the judgment of the trial court is restored with N1,000.00 costs to the appellant.

 I read before now the judgment just delivered by my learned brother Mohammed J.S.C. I agree with the conclusion that the appeal succeeds and it is allowed. I will also restore the judgment of Imo State High Court delivered by Johnson J. on the 2nd of February, 1983. The order for costs is endorsed by me.

I have had the advantage before now of reading in draft the judgment of my learned brother Mohammed J.S.C. I agree with the conclusion reached by him that the appeal be allowed. I wish however, to add a few words of my own.

The facts have been fully setout in the judgment of my learned brother; I need not go over them again. It is sufficient to say that both parties laid conflicting claims to ownership of the land in dispute. It would appear from the pleadings and the evidence led however, that the resolution of the question as to who owned as between the parties, the land in dispute revolves on the nature of the transaction between the respondent (who was plaintiff in the Court of first instance) on the one hand, and Mbahaotu a member of the appellants’ family (who were defendants in this case) on the other hand. The respondent as plaintiff claimed that the land on which he built his house was at one time pledged to the said Mbahaotu by his family and he later redeemed the pledge by the payment of 500.00pounds (now N1,000.00). The

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defendants on the other hand claimed that the land on which the plaintiff has his house was a portion of their family land being cultivated by one Mbahaotu, now deceased, (a member of the family) was secretly sold by the said Mbahaotu to the plaintiff for the sum of 500.00pounds and when the plaintiff commenced building on the land, they the defendants challenged him and he told them that the land was sold to him by Mbahaotu and showed the document evincing the transaction between them. On plaintiff’s appeal to be allowed to stay on the land, the defendants agreed.

The learned trial Judge after a review of the evidence found that the transaction was a sale by Mbahaotu to the plaintiff and concluded that the land belonged to the defendants and not to the plaintiff; he dismissed plaintiff’s claims. On appeal by the plaintiff to the Court of Appeal, the latter Court held that there was no denial of the averment in the plaintiff’s statement of claim that the transaction was a pledge. It further held that as the defendants did not plead sale, any evidence to that effect was inadmissible as it went to no issue. It then allowed plaintiff’s appeal and entered judgment in his favour. It is against this judgment that the defendants, with leave of court, have appealed to this Court.

Four issues are set out in the defendants’ Brief as calling for determination and these are:

“(i) Whether the court below was correct in holding that –

(a) the defendants did not deny the plaintiff’s allegation that the land on which he now resides was at one time pledged to one Mbahaotu of the defendants’ people;

(b) the defendants cannot rely on Exhibit C in support of transaction of sale;

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(ii) Whether the trial court was precluded from accepting the evidence relating to sale of the aforementioned land.

(iii) Whether the conclusion drawn by the court below from the areas within the land in dispute which are said to be occupied by the plaintiff’s family are reasonable.

(iv) Whether the orders made by the court in favour of the plaintiff can be justified.”

The plaintiff for his part set out three issues in his Respondent’s Brief:

“1. Whether by considering exhibit ‘C’ as evidence of a sale without the consent and concurrence of members of the family, the trial court was not thereby formulating a fresh issue for the parties distinct from their pleadings of pledge.

2. Whether exhibit ‘C’ is admissible in evidence as a document conferring interest in land despite its non-compliance with the Land Instrument Registration law.
3. Whether the respondent was not entitled to judgment in view of the admissions by the appellants coupled with the concurrent findings of the two lower courts on the numerous acts of possession by the respondent.”

Having regard to the formulation of issues (1) and (2) in the respondent’s Brief and the grounds of appeal, I cannot but agree with Chief Williams, SAN that those issues do not arise out of the grounds of appeal before this Court. The two issues as formulated are not an attack on the judgment of the Court of Appeal but of the trial court. I am satisfied that having regard to the judgment of the Court of Appeal and the grounds of appeal the issues as formulated in the defendants’ /appellants’ Brief are to be

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preferred and I would adopt them in the consideration if this appeal.

As stated earlier on, the main issue relate to the nature of the transaction between the plaintiff and Mbahaotu in respect of a portion of the land in dispute built upon by the plaintiff. This being a case where each party relied on traditional history conflicting of each other, the best way to test the probability of each conflicting version is by reference to an event or events in recent times – see Adenle v. Oyegbade (1967) NMLR 136, Ikpang v. Edoho (1978) 6-7 SC 221; Thanni v. Saibu (1977) 2 SC 89; Kojo II v. Bonsie & Anor. (1957) 1 WLR and the event in recent times that could resolve the conflict in the two versions as given in case by the parties is the nature of the transaction over the portion of the land in dispute built upon by the plaintiff. The plaintiff’s version of the nature of the transaction is contained in paragraphs 12 & 12(b) of the statement of claim which reads:

“The area verged yellow in the Plan E/GA834/76 shows where Christopher Onwumere (the plaintiff) now lives. This portion of the family land was being cultivated by the late Chinake Obialo of Umuoke Owerre Nkwoji. By Owerre Nkwoji custom a member of a family can pleadge a portion of the family land where he works to any body if the members of the family are unable to provide him the necessary funds required for his needs. The pledgor or his descendants must redeem the land when the family lands have to be shared.12(b) Some years ago, the late Chinaka Obialo pledged the area verged yellow to one late Mbahaotu of Umuozu Umuaro Umudi for Nnu Ano (1,600 cowries) to enable him pay a fine, which the

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Okonko Society of Umuoke Owerre Nkwoji ordered him to pay. The late Mbahaotu was the son of a woman from the plaintiff’s family named Agbaghasu who was married in Umuaro, Umudi. The late Mbahaotu was a member of many associations in Umuoke including the Okonko Society. The land was not redeemed before the death of the pledgor and pledgee. Mr. Christopher Onwumere redeemed the land in 1969 from the son of Mbahaotu called Nwanedo for 500pounds (five hundred pounds) in “Biafra” currency notes and had since been in possession of the area verged yellow.”

The defendants, on the other hand pleaded, in paragraph 15 of their statement of defence thus:

“15. In answer to paragraph 12 of the statement of claim which is denied the defendants aver that Mbahaotu now deceased of the defendants’ people who had possessory right over the piece of land verged blue in defendants’ plan, secretly received the sum of 500pounds from and allowed the plaintiff to build on the land. When plaintiff commenced building thereon the defendants challenged him and he the plaintiff showed to and gave the defendants a receipt which he had prepared and which was signed by him and Mbahaotu evidencing his transaction with Mbahaotu about the land and begged the defendants to allow him to build and remain thereon as their tenant.

The defendants thereafter permitted the plaintiff to build and live on the land as their tenant. The said receipt given to the defendants by the plaintiff will be founded upon at the trial. The value of Nnu Ano or (1,600 cowries) as stated by plaintiff is only N8. It is ridiculous that plaintiff

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will pay 500pounds for a pledge of the value of N8.”

Evidence was led by each party in support of his averment. At the trial the plaintiff tendered a document signed by him and Mbahaotu as evidencing the transaction between him and Mbahaotu which according to him was redemption of pledge. The defendants relied on this document too. The document was admitted in evidence and marked Exhibit C. The learned trial Judge in making his finding that the transaction between the plaintiff and Mbahaotu was a sale and not a redemption of pledge, observed as follows:

“Regarding item 5, it is the law that where a transaction is reduced to writing, in the absence of fraud, oral evidence is no! admissible to contradict or vary the writing, and the parties are bound by the terms of the document. I have been urged by the plaintiff to regard the transaction in Exh. C as relating to a pledge and not to a sale. This is a question of interpretation. What then is the content of the document? The document Exh. C is headed “AGREEMENT” made at Amoji, Umudi, Orlu, and dated 6th June, 1969, and contains the following:-

‘This is an Agreement made between Mr. Nwanedo Mbahaotu of Amoji, Umudi Orlu and Mr. Christopher Onumere (Plaintiff) of Umuoke, Owerre Nkoji, Orlu, this 6th day of June, 1969.

I Mr. Nwanedo Mbahaotu have today sold my piece of land know as Owerre Ibewuihe in Amoji, Umudi, Orlu agreed price 500pounds (Five hundred pounds) which I have received in full.

It is agreed between Mr. Nwanedo Mbahaotu and Mr. Christopher Onwumere that I Mr. Nwanedo Mbahaotu

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should uproot any standing tree in the land which is possible for me, otherwise anyone I left is for Mr. Christopher Onwumere.”

Signature of Buyer Signature of mark of Seller

Four persons signed as witnesses each to the Buyer and the Seller. From the content of the above document Exh. C. it is not difficult to deduce that what the parties intended was a sale and not a pledge. On the face of Exh. C, it is difficult to believe the plaintiff that the transaction was a pledge and that he (plaintiff) agreed to execute Exh. C merely to recover his land because his opponent refused him the right to redeem the land. In answer to the question-why he (plaintiff) did not use the defendants for the redemption of the land instead of paying the purchase price of 500pounds (five hundred pounds) plaintiff said he considered it was a waste of time suing defendants to Court for title or for redemption. I consider this reason as irrational and indefensible. In the same vein, plaintiff was unable to say why his later father who accompanied him to the defendants for the redemption could not sign Exh. C. as one of his witnesses. Likewise, no member from five other branches of plaintiff’s Emenaugha family which he is representing in this suit witnessed Exh. C for him (plaintiff). It is important to note that this Nwane do Mbahaotu the Seller in Exh. C. hailed from defendants’ side. On the other hand, plaintiff said that this deceased relation Chinaka Obialo pledged away the land the subject matter in Exh. C to late Mbahaotu for which he paid the 500pounds. I have disregarded the evidence of pledge and accept the story that the land in dispute was

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sold by defendants’ relation late Mbahaotu to the plaintiff, as confirmed by the evidence of D.W.1.”

And the Court of Appeal, for its part, per Nnaemeka-Agu J.C.A (as he then was) found as follows:

“Leaving those issues which deal with the possession of the land in dispute for a while, I shall consider issues Nos. (iv) – (vi) as framed by the appellants along the first issue as framed by the respondents first. Now, it was pleaded in paragraphs 12 and 12(b) of the statement of claim thus:

“The area verged Yellow in the Plan E/GA834/76 shows where Christopher Onwumere (the plaintiff) now lives. This portion of the family land was being cultivated by the late Chinaka Obialo of Umuoke OWerre Nkwoji. By Owerre Nkwoji custom a member of a family can pledge a portion of the family land where he works to any body if the members of the family are unable to provide him the necessary funds required for this needs. The pledgor of his descendants must redeem the land when the family lands have to be shared.

12(b) Some years ago, the late Chinaka Obialo pleaded the area verged yellow to one late Mbahaotu of Umuozu Umuaro Umudi for Nnu Ano (1,600) cowries) to enable him pay a fine, which the Okonko Society of Umuoke Owerre Nkwoji ordered him to pay. The late Mbahaotu was the son of a woman from the plaintiff’s family named Agbagbasu who was married in Umuozu Umuaro, Umudi. The late Mbahaotu was a member of many associations in Umuoke including the Okonko Society. The land was not redeemed before the death of the pledgor and pledgee. Mr. Christopher Onuwmere redeemed the land in 1969 from the son of Mbahaotu called Nwanedo for

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500pounds (five hundred pounds) in “Biafra” currency notes and had since been in possession of the area verged yellows.”

In reply the respondents pleaded in paragraph 15 of their statement of defence thus:

15. In answer to paragraph 12 of the statement of claim which is denied the defendants aver that Mbahaotu now deceased of the defendants’ people who had possessory right over the piece of land verged blue in defendants’ plan, secretly received the sum of 5000pounds from and allowed the plaintiff to build on the land. When plaintiff commenced building thereon the defendants challenged him and he the plaintiff showed to and gave the defendants a receipt which he had prepared and which was signed by him and Mbahaotu evidencing his transaction with Mbahaotu about the land and begged the defendants to allow him to build and remain thereon as their tenant. The defendant thereafter permitted the plaintiff to build and live on the land as their tenant. The said receipt given to the defendants by plaintiff will be founded upon at the trial. The value of Nnu Ano or (1,600 cowries) as stated by plaintiff is only N8. It is ridiculous that plaintiff will pay 500pounds for a pledge of the value of N8.91

It is thus clear that the respondents did not expressly deny the pledge pleaded. More importantly they did not plead that the transaction was a sale rather than a pledge as they should have done if it was their case that the land was sold to the appellant by Mbahaotu. By Order XXXIII rules 11 and 13 of the High Court Rules of Eastern Nigeria, applicable in Imo State, the respondents were

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obliged to deny the averment of a pledge expressly, and not evasively, and to answer any point of substance in the statement of claim. They should also plead any fact not stated in the statement of claim on which they wanted to rely in defence. It is noted that it was stated in the statement of defence that:-

‘The receipt given to the defendants by the plaintiff will be founded upon at the trial. ‘

Considering the fact that no sale has been alleged by any body in any of the pleadings, this cannot be taken to mean that the receipt was to be used to show a sale rather than a pledge. Indeed by the rules of pleadings in force in England on the 13th of September 1960 (See Order 19 rule 21 of the Annual Practice 1960) which apply by implication under section 16 of the High Court Law of Eastern Nigeria 1960, the respondents were bound to plead the effect of the document (Exh. C) which they wanted to rely upon. See on this Bristow v. Wright (1879) 2 Dong. 665; Derbyshire v. Leigh (1986) 1 Q.B. 558, at p. 559; see also Williamson v. L. & W. Railway (179) 12 Ch. D. 787. The result of the rule and all the decided cases is that it is not sufficient to have just stated the document (Exh. C) would be relied upon without more particularly as there was no allegation of sale anywhere in the statement of claim or the statement of defence. They were obliged to plead the effect of the document they wanted to rely upon (see Supreme Court Practice, 1985, para. 18/7/7.) If the respondents wanted to rely upon the document to show that the transaction between that parties was a sale rather than a pledge they should have said so in the pleading. But they did not.

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There is therefore no basis for the learned Judge to consider the document, Exh. C, on the basis of a sale rather than a pledge. It is true that Exh.C ex-facie shows a sale. But the appellant explained it away in the following words:

“When I went to redeem that land the people claimed the land as theirs. I refused their claim. They then insisted I must buy the land hence I paid 500pounds (N1,000). Then I bought the land for 500pounds. I simply agreed signing the Exh. C in order to get back the land, rather I did not attach any importance to the name.”

The learned Senior Advocate for the appellant was therefore correct when he submitted that by going on the basis of a sale rather than a pledge the learned Judge embarked on an uncalled for voyage of discovery and set up for the respondents a case which they did not set up in their pleadings. He was also right when he submitted that parties are bound by their pleadings and that evidence or findings which are at variance with the averments in the pleadings go to no issue and should be disregarded by the Court: see African Continental Bank Ltd. v. A.G. of Northern Nigeria (1967) NMLR 28, at p. 31; Emegokwue v. Okadigbo (1973) 4 S.C. 113; George v. Dominion Flour Mills Ltd. (1963) 1 All N.L.R 71, p. 78 and Orizu v. Anyaegbunam 1 L.R.N. 26. I am satisfied that the learned Judge was in error to have found a sale without the necessary consents rather than a pledge on Exh. C (and the evidence thereon).”

Chief Williams SAN had attacked this finding of the Court of Appeal. Learned Senior Advocate after referring to

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pieces of evidence given by the plaintiff at the trial and the address of plaintiff’s counsel at the trial as well as the findings of the learned trial Judge and the fact that Exh. C was made by the plaintiff personally submitted that the transaction amounted to an admission by the plaintiff that he was not the owner of the land but that the defendants were. He further submitted that there was no justification for interfering with the findings of fact made by the learned trial Judge as the Court of Appeal had done in this case.

Mrs. Offiah for the plaintiff submitted that paragraph 15 of the statement of defence did not meet the pleadings in paragraphs 12 and 12(b) of the statement of claim in that paragraph 15 did not specifically deny the allegations in paragraphs 12 and 12(b) required by the rules of pleading. Learned counsel further submitted that the question of sale was not an issue properly raised before the trial court and therefore, all the evidence being relied on by the appellant will go to no issue. She submitted that the parties did not join issue on the question of sale. She finally submitted that the finding of the trial court was rightly set aside by the Court of Appeal.

Chief Williams in a short reply, submitted that Exh. C was put in evidence for the sole purpose of contradicting the case of pledge made by the plaintiff. It was not put in to establish title in anyone. Learned Senior Advocate further submitted that as the plaintiff admitted that he was a signatory to the document, Exh. C was admissible under S.91 of the Evidence Act. He referred to the address of plaintiff’s counsel at the trial and observed that it was an invitation to the trial- Judge to interpret Exh. C.

I have set out earlier in this judgment the pleadings of the

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parties as relevant to the issue now under consideration. With respect to learned counsel for the plaintiff, I think it is a misconception to say that paragraphs 12 and 12(b) of the statement of claim was not denied in paragraph 15 of the statement of defence. Of course it was. Paragraph 15, for ease of reference, reads as follows:

“15. In answer to paragraph 12 of the statement of claim which is denied the defendants aver that Mbahaotu now deceased of the defendants’ people who had possessory right over the piece of land verged blue in defendants’ plan, secretly received the sum of 500pounds from and allowed the plaintiff to build on the land. When plaintiff commenced building thereon the defendants challenged him and he the plaintiff showed to and gave the defendants a receipt which he had prepared and which was signed by him and Mbahaotu evidencing his transaction with Mbahaotu about the land and begged the defendants to allow him to build and remain thereon as their tenant. The defendants thereafter permitted the plaintiff to build and live on the land as their tenant. The said receipt given to the defendants by the plaintiff will be founded upon at the trial. The value of Nnu Ano or (1,600 cowries) as stated by plaintiff is only N8. It is ridiculous that plaintiff will pay 500pounds for a pledge of the value of N8.”

I do not see how one could better deny the averment in his opponent’s pleadings as was done in the part of paragraph 15 underlined above. Having held therefore, that paragraph 12 was denied by the defendants in paragraph 15 of the statement of defence, I need to however add that reading the rest of paragraph 15 the

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inescapable question one would come to is that the defendants alleged in their pleadings that Mbahaotu sold to the plaintiff the portion of the land in dispute on which the plaintiff built, without the consent of his family, that is, the defendants’ family and on the defendants seeing plaintiff on the land challenged him. The plaintiff begged to be allowed to remain on the land and the defendants accepted his plea. The Court below therefore, was in serious error to hold that the parties did not join issue on sale.

The learned trial Judge painstakingly considered the evidence led by both sides and found, quite rightly in my view, that the transaction between Mbahaotu and the plaintiff was one of sale rather than of pledge. In the light of the finding therefore, the learned trial Judge, in my respectful view, was perfectly justified to accept the defendants’ version of the traditional history and to reject plaintiff’s claim. The Court below was in error to reverse him.

The other issues raised in this appeal touch on findings of fact made by the learned trial Judge and reversed by the learned Justices of the Court of Appeal. The principles upon which an appellate court would interfere with the findings of a trial court have been laid out in numerous cases. Simply put- an appellate court will not reverse a finding of fact made by a trial court which is supported by evidence and which is not perverse. The learned trial Judge made a number of findings of fact. He found that  the identity of the land in dispute, the fact that the defendants entered the land and that the only juju shrine on the land is called “Ajimiri” are not in dispute. The

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correctness of those findings has not been challenged by the plaintiff. He found also (a) that the ownership of the land in dispute is in the defendants; (b) that the land in dispute is in Umudi and not in Owerre, Nkwoji and the Ajimiri is inside the land; (c) that the transaction between the plaintiff and Mbahaotu was a sale of land and not a redemption of a pledge; (d) that Ohimeke village in Umudi where plaintiff once lived before joining his kith and kin in Owerre Nkwoji was, on the abolition of the Osu caste system, renamed Amaoji and (e) that the only Eke market in the area was in Umudi. All these findings of fact are supported by credible evidence before the trial Judge. With respect to the Justices of the Court of Appeal, they were in serious error to have interfered with those findings.

The only other point remaining for me to consider is issue (iv) in his judgment in favour of the plaintiff. The Court per Nnaemeka-Agu J.C.A observed as follows:

“A right of occupancy is of course meant for an occupier. An occupier is defined in section 50 of the Act thus:

“Occupier” means any person lawfully occupying land under customary law and a person using or occupying land in accordance with customary law and includes the sublesses or sub-under- lessee of a holder.’

By this definition the appellant and his people would be entitled to a right of occupancy over the portion of the land in dispute which they occupy. And as there is no marked or proven boundary between those parts of the land in dispute proved or conceded to them and the rest of the land in dispute, an application of section 45 of the Evidence Act to the case will entitle him and his people to

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a customary right of occupancy over the whole land in dispute.”

(Italics mine)

Making the declaration in favour of the plaintiff, Nnaemeka-Agu J.C.A. pronounced thus:

“I declare that the plaintiff/appellant is entitled to a statutory right of occupancy to ‘Ala Emenaugha’ land situate at Umuoke in Owerre Nkwoji in Nkwerre Local Government Area of Imo State which is shown and edged pink in Plan No. E/GA834/76 tendered as Exhibit A in this case (Italics mine)

The contention here is that having talked of Customary Right of Occupancy the Court below was wrong to declare a Statutory Right of Occupancy. I have no doubt in my mind that reference to “Statutory Right” in the declaration made is an error that comes within the purview of the Slip Rule which this Court can correct. What the Court below meant to declare in the plaintiff was a Customary Right of Occupancy. Had the decision on the appeal been different, I would, in exercise of the power conferred on this Court, have amended the declaration accordingly to bring it in line with what the Court below meant to decide.

In conclusion I can see no justification whatsoever for entering judgment in favour of the plaintiffs as was done by the Court below. For the reasons given in the lead judgment of my learned brother Mohammed J.S.C. and the reasons given herein, I allow this appeal and set aside the judgment of the Court of Appeal and in its stead I restore the judgment of the learned trial Judge dismissing plaintiff’s claim and I abide by the order for Costs made by my learned brother Mohammed J.S.C.

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By a writ of summons dated November 8, 1975 the plaintiff, herein respondent, for himself and as representing the members of Emanaugha family in Umuoke Owerre Nkwoji, sued the defendants herein appellants, personally and as representing their various families in Umudi in the High Court of the defunct East Central State, part of which is now Imo State, holden at Orlu, claiming the following reliefs:-

1. Declaration of title to that piece or parcel of land known as and called “Ala Emenaugha” situate at Umuoke Owerri Nkwoji, in Nkwerre Division within the Orlu Judicial Division more clearly delineated on the plan to be filed with the statement of claim with an annual value of N10.00 (ten naira).
2. N2,000.00 (two thousand naira) general damages for trespass into the said land.
3. Perpetual Injunction to restrain the defendants, their servants and/or agents from further acts of trespass to the said land.”

Pleadings having been ordered and flied, the case went to trial and in a well considered judgment dated 2nd February, 1983, the trial court dismissed the plaintiff/respondent’s claims in their entirety with costs to the appellants. The parties are hereinafter re-characterized as plaintiff and defendants in the rest of this judgment.

Dissatisfied with the decision, the plaintiff appealed to the Court of Appeal holden at Enugu which on 30th of June, 1987, allowed the appeal and consequently reversed the

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decision of the trial court.

Aggrieved by the decision, the defendants have appealed to this court premised on a Notice of Appeal containing seven grounds (see pages 281-295 of the record of proceedings).

Parties through their counsel thereafter exchanged briefs of argument in accordance with the rules ofthis court. Learned Senior Advocate, Chief Williams, on behalf of the defendants, submitted four issues for our consideration, to wit:

(i) Whether the court below was correct in holding that –

(a) the defendants did not deny the plaintiffs allegation that the land on which he now resides was at one time pledged to one Mbahaotu of the defendants’ people;

(b) the defendants cannot rely on Exhibit C in support of transaction of sale.

(ii) Whether the trial court was precluded from accepting the evidence relating to sale of the aforementioned land.

(iii) Whether the conclusions drawn by the court below from the areas within the land in dispute which are said to be occupied by the plaintiff’s family are reasonable.

(iv) Whether the orders made by the court in favour of the plaintiff can be justified.

The three issues formulated on behalf of the plaintiff by Mrs. AJ. Offiah, of counsel from the chambers of Chief Mogboh S.A.N., which at a glance, in my view, bear no relevance to the case as fought in both the courts below by the parties, and which for purposes of clarity ought to be discountenanced, are set out below as follows:-

1. Whether by considering Exhibit ‘C’ as evidence of a sale without the consent and concurrence of members of

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the family, the trial court was not thereby formulating a fresh issue for the parties distinct from their pleadings.

2. Whether Exhibit ‘C’ is admissible in evidence as a document conferring interest in land despite its non-compliance with the Land Instrument Registration Law.
3. Whether the respondent was not entitled to judgment in view of the admission by the appellants coupled with the current findings of the two lower courts on the numerous acts of possession by the respondent.

In my consideration of this appeal which was argued on 1st November, 1993, I intend to stick to the defendants’ issues as therein formulated. With regard to issue 1, I wish to advert to the plaintiff’s pleading in his statement of claim at paragraph 12 thereof wherein he averred thus:

” The area verged yellow in the plan E/GA.834/76 shows where Christopher Onwumere (the plaintiff) now lives. This portion of the family land was being cultivated by the late Chinaka Obialo of Umoke Owerre Nkwoji. By Owerre Nkwoji custom a member of a family can pledge a portion of the family land where he works to anybody if the members of the family are unable to provide him the necessary funds required for his needs. The pledgor or his descendants must redeem the land when the family lands have to be shared.

12(b) Some years ago Chinaka Obialo pledged the area verged yellow to one late Mbahaotu of Umuozu Umuaro Umudi for Nnu Ano (1,680 cowries) to enable him pay a fine, which the Okonko society of Umuoke Owerre Nkwoji ordered him to pay. The late Mbahaotu was the son of a woman from the plaintiff’91s family named Agbaghasu

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who was married in Umuozu Umuaro, Umudi. The late Mbahaotu was a member of many associations in Umuoke including the Okonko Society. The land was not redeemed before the death of the pledgor and pledgee – Mr Christopher Onwumere redeemed the land in 1969 from the son of Mbahaotu called Nwanedo for 500.00pounds (five hundred pounds) in “Biafra” currency notes and had since been in possession of the area verged yellow.”

(see page 13 and 14 of the record).

In answer to the above pleading, the defendants averred in paragraph 15 of their statement of defence at pages 23 and 24 of the record denying pledge thus:

“15. In answer to paragraph 12 of the statement of claim which is denied, the defendants aver that Mbahaotu now deceased of the defendants’ people who had possessory right over the piece of land verged blue in defendants’ plan, secretly received the sum of 500.00pounds from and allowed the plaintiff to build on the land. When plaintiff commenced building thereon the defendants challenged him and he the plaintiff showed to and gave the defendants a receipt which he had prepared and which was signed by him and Mbahaotu evidencing his transaction with Mbahaotu about the land and begged the defenants to allow him to build and remain thereon as their tenants.

The defendants thereafter permitted the plaintiff to build and live on the land as their tenant. The said receipt given to the defendants by the plaintiff will be founded upon at the trial. The value of Nnu Ano or (1,600 cowries) as stated by the plaintiff is only N8. It is ridiculous that

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plaintiff will pay 500pounds for a pledge of the value of N8.”

From the pleadings and evidence adduced by the parties in-support of their respective case, the plaintiff equivocated as if to say the transaction in relation to the piece of land in question as reflected in Exhibit C was either a sale or a pledge while the defendants set up a sale simpliciter after denying pledge. Be that as it may, both sides addressed the trial court on Exhibit ‘C’, for which see page 80, lines 25-29 (Defence Counsel’s Address) and page 84, lines 29 to page 85, lines 1-5 of the Record (Plaintiff Counsel’s Address).

Exhibit ‘C’ copied into page 107 of the Record and which speaks for itself reads:

“FREEHOLD LEASE                                                                                AGREEMENT

Amoji Umudi

Orlu

6th June, 1969.

THIS IS AN AGREEMENT MADE BETWEEN MR. NWANEDO MBAHOUTU OF AMORJI UMUDI ORLU AND MR. CHRISTOPHER ONWUMERE OF UMOKEOWERRE NKWOJI ORLU THIS 6TH DAY OF JUNE, 1969I Mr. Nwanedo Mbahaotu have today sold my piece of land known as Owerri Ibe Wuihe in Amoji Umudi Orlu to Mr. Christopher Onwumere at the agreed price of 500pounds (five hundred pounds) which I have received in full.

It is agreed between Mr. Nwanedo Mbahaotu and Mr. Christopher Onwumere that I Mr. Nwanedo Mbahaotu should uproot any standing tree in the land which is

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possible for me, otherwise anyone I left is for Mr. Christopher Onwumere.

(Sigd)      (Sigd)

Signature of buyer      Signature or mark of seller

Witness to buyer     Witness to the seller

(1) (Sgd) ………………………………………..    (1) (Sgd) …………………………………………….

(2) (Sgd) ………………………………………..    (2) (Sgd) …………………………………………….

(3) (Sgd) …………………………………………   (3) (Sgd) …………………………………………….

(4) (Sgd) …………………………………………   (4) (Sgd) …………………………………………….

It is clear from the totality of evidence adduced at the trial court that pledge as pleaded by the plaintiff was denied by the defendants and sale was set up. That this is so can best be gathered from the purport of Exhibit C set out above and the issue raised about that document which was put in at the trial firstly, to contradict plaintiff’s case regarding pledge but not to establish title in anyone person at pages 44 and 45 of the record. Subjected to cross examination plaintiff stated as follows:-

Put. You brought this action in your personal capacity.

Ans. No, it was the entire family of Emenaugha who selected me. My elders were Aaron Egbundu, Isaiah Ugwoegbu, Ozuruigbo Ogwoegbu, Ogoke Ogwoegbu and Gabriel Okpara.

1. Why didn’t these people follow you to sign Exh. ‘C’

Ans. These are the only people around when I bought the land.    Q. When the people insisted you should buy the land why

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did you not sue them for title or for redemption order?

Ans. Because I did not want to waste time with lawyer and court since I had the amount they wanted and demanded.

1. Have you a copy of Exhibit C?

Ans. Yes.

1. Did you show it to your lawyer?

Ans. I cannot remember whether or not I told my lawyer.

1. Did you tell your lawyer you were forced to buy the land?

Ans. I did not remember.

Put. You know the case will fail or succeed on Exhibit C hence you hid it from your lawyer?

Ans. It is not true.”

(The italics above are mine).

From the foregoing, it is palpable that the plaintiff was not consistent with the pledge he set up on his pleadings when in his testimony and in Exhibit C he was equally setting up sale, the latter fact which he had hidden from his counsel, thus depicting his duplicity. To highlight learned counsel for plaintiff’s address alluded to above, he had this to say:

“Refer to Exhibit C made between plaintiff and one Nwanedo Mbahaotu and draws court’s attention to alterations contained therein; and that no explanation was given as to the alterations. Says the word ‘sold’ was cancelled in Exhibit C and urges court to disregard the document: and believe the plaintiff that the document was made for the redemption of the pledge.”

Hence the learned trial Judge, in my view, was right in finding for the defence inter alia when he held:-

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“On the face of Exhibit C, it is difficult to believe the

Plaintiff that transaction was a pledge and that he (plaintiff) agreed to Exhibit C merely to recover his land because his opponent refused him the right to redeem the land ………………………………………”

(see page 100, lines 1 to 5 of the record.)

It is in this wise that one is at a loss to decipher why the court below tended to overlook the evidence of the defendants in support of their own pleadings and the evidence adduced in the trial court when it held among others at page 264, lines 40 and 41 and page 265 of the records, lines 1-3 that ………”

“It is thus clear that the respondents did not expressly deny the pledge pleaded. More importantly they did not plead that the transaction was a sale rather than a pledge as they should have done if it was their case that the land was sold to the appellant by Mbahauotu ……..

There is clearly a misdirection, moreso since the parties agreed and the trial Judge found as a fact, that the defendants were the original owners of the land in dispute. The onus was therefore on the plaintiff to establish a change of ownership by pledge (or sale if Exhibit C to which he (plaintiff) was a signatory was to be meaningful).

There is in law in this regard no onus on the defendants herein to establish a pledge, having pleaded in paragraph 15 of the statement of defence (ibid) a sale. And since in the instant case, as it is the duty of the plaintiff to begin to

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adduce evidence, for it is he who would lose if no more evidence is adduced having regard to the state of the pleadings, (see George Onobruchere & Anor v. Irwromoeho Esegine & Anor. (1986) 1 NWLR (Pt.19) 799, he had not proved his case on the balance of probabilities to be entitled to judgment. See Mogaji v. Odofin (1978) 4 S.C.91 at page 93. The idea that a document (in this case Exhibit ‘C’) which talks of a sale can be adjudged in a court of law to be made on the occasion of a pledge, signed by the parties thereto as well as witnesses, is one which is not easily acceptable. In this wise, I bear in mind the dictum of Scrutton, LJ. in Blay v. Pollard (1930) 1 K.B. 628 at 633:-

“It would be very dangerous to allow a man over the age of legal infancy to escape from the legal effect of a document he has, after reading it, signed, in the absence of an express misrepresentation by the other party of that legal effect.”

The court below, in my respectful view, therefore erred in treating Exhibit C otherwise than as evidence of a sale. If as Exhibit C clearly postulates it was evidence of a sale, then it destroys the claim of the plaintiff’s family to be the owners of the land. It was clearly demonstrated in evidence before the trial court that the entire land in dispute is situated in Umudi and is owned by that community. Exhibit C was indeed put in to contradict the case of the plaintiff regarding pledge. Besides, Exhibit C of which plaintiff was a signatory was received pursuant to section 90 of the Evidence Act, sub-section (1)a(i) and (b) of which provides:

“90(1) In any Civil Proceedings where direct oral evidence

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of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be ‘admissible in evidence of that fact if the following conditions are satisfied –

(a) if the maker of the statement either

(i) had personal knowledge of the matters dealt with by the statement; or

(ii) (Not applicable)

(b) if the maker of the statement is called as a witness in the proceedings.”

Furthermore, Exhibit C as can be seen, is in itself an acknowledgment or admission by the plaintiff’s predecessor that the land is owned by Umudi. See page 80 of the record wherein the plaintiff’s counsel submitted that the document was made for the redemption of the pledge although he added “the plaintiff did not say why his father or others did not redeem the pledge” until in 1969 when he did so for 500pounds. The trial court, having rightly in my view, disbelieved and jettisoned that explanation, it is in that wise that the finding of the court below hereinbefore alluded to, is therefore palpably wrong and cannot be sustained. Issues (i), (ii) and (iii) are accordingly resolved in the defendant’s favour.

I wish to remark in passing with regard to Issue 2 proferred on the plaintiff’s behalf and set out above, that learned counsel for him having at the hearing of this appeal on 1st November, 1993 conceded that it would not arise at all from the defendant’s grounds of appeal as framed, it is accordingly discountenanced and struck out. Similarly, plaintiff’s Issue 1 is wrongly laid in that it

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questions whether by considering Exhibit C as evidence of a sale without the consent and concurrence of members of the family, the trial court was not thereby formulating a fresh issue for the parties distinct from their pleadings of pledge. It is of paramount importance for one to bear in mind that this court is not sitting on appeal from the trial court’s decision but that of the court below.

Coming to the defendants’ Issue (iv) which learned counsel for the plaintiff strenuously argues overlaps their own Issue 3, since the totality of the evidence before the trial court pointed inexorably to the fact that the entire land in dispute is situated in Umudi and is owned by that community, the plaintiff could under no guise be entitled to judgment in pursuance of any purported admissions by the defendants, coupled with any concurrent findings of the two courts below on any numerous acts of possession by the plaintiff. The court below surely drew wrong and erroneous inferences from the fact that some members of the plaintiff’s family occupy certain areas within the land in dispute. Be that as it may, the orders made by the court below now impugned in Issue (iv) are those declared at pages 276 and 277 of the Record as follows:-

“A right of occupancy is of course meant for an occupier. An occupier is defined in section 50 of the Act (Land Use Act) thus:

“Occupier” means any person lawfully occupying land under customary law and a person using or occupying land in accordance with customary law and includes the sublessee or sub-underlessee of a holder.

By this definition the appellant and his people would be

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entitled to a right of occupancy over the portion of the land in dispute which they occupy. And as there is no marked or proven boundary  between those parts of the land in dispute proved or conceded to them and the rest of the land in dispute, an application of section 45 of the Evidence Act to the case will entitle him and his people to a customary right of occupancy over the whole land in dispute.”

(Italics mine)

Nnaemeka-Agu, J.CA., as he then was, in his lead judgment proceeded to grant the declaration sought thus:-

“I declare that the plaintiff/appellant is entitled to a Statutory right of occupancy to ‘Ala Emenaugha” land situate at Umuoke in Owerre Nkwoji in Nkwerre Local Government Area of Imo State which is shown and edged pink in plan No. E/GA834/76 tendered as Exhibit A in this case.”

(Italics also mine).

In view of what the court below in its judgment at page 277 lines 4 and 5 said to the effect that” will entitle his people to a customary right of occupancy over the whole land in dispute” the reflection of same in the enrolled order at page 279 of the Record inter alia ‘That the plaintiff/appellant is entitled to a declaration of a statutory right of occupancy”, the error no doubt, must have constituted an accidental slip which in law is amenable to correction to give it its true meaning. See Obanor v. Conservator (1959) WRNLR 8; Asiyanbi v. Adeniji (1967) 1 All NLR 82; (1967) NMLR 238 and Obiora v. Commissioner of Police (1990) 7 NWLR (Pt.161) 222 at

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Be that as it may, since the plaintiff therefore failed to establish either ownership (e.g. by traditional evidence) or possession of the land in dispute, he was not entitled to the declaratory judgment he sought which afterall is discretionary, and the trial court was right to have dismissed his claims.

It is for the above reasons and the fuller ones contained in the lead judgment of my learned brother, Uthman Mohammed, J.S.C with which I entirely agree after having had a preview of same, that I allow this appeal, set aside the decision of the court below and restore the decision of the trial court which is accordingly affirmed by me. I make the same orders for costs as contained in the lead judgment.

Appeal allowed.