Benneth Ude Agu v. Maxwell Nnadi

The trial court as well as the Court of Appeal found the claim of plaintiff unproved. These decisions were based entirely on the clear evidence of the parties on the record.

P.9

The plaintiff/appellant has not indicated where the findings of facts are perverse or contrary to evidence or illegal. As these are clear concurrent findings of fact, this Court cannot disturb them and I therefore, for the fuller reasons in the judgment of my learned brother,  Ayoola JSC, dismiss this appeal. I award to the respondent against the appeal costs of N 10,000.00 in this appeal.

I have had the privilege of reading in draft the judgment just delivered by my learned brother, Ayoola, JSC and I totally agree that this appeal is without substance and ought to be dismissed.
The findings made by the trial court in the suit are copiously against the plaintiff/appellant. Said the learned trial Judge:
“It is therefore my view that the plaintiff has failed to prove:-
(a) that his grandfather was the owner of the land in dispute consequent on the sharing by his great grandfather of all the lands he had as at the time of his death.
(b) that the plaintiff has also failed to prove that he is the owner of the land in dispute by inheritance from his grandfather.
(c) that he has failed to prove that on the death of his grandfather Chime Nwagu Ude became the trustee of the land in dispute for and on behalf of the plaintiff.
(d) that the plaintiff has also failed to prove that it was in his capacity as a trustee for the plaintiff that Chime Nwagu Ude pledged the land in dispute to the defendant.
Having held as above, I do not see how I can make any of the declarations sought by the plaintiff in paragraph 23 in his amended pleadings.”
P.10

The above findings were affirmed by the court below.
It is trite law that this court will not interfere with the concurrent findings of both the trial court and the Court of Appeal on essentially issues of fact except there is established a miscarriage of justice or violation of some principles of law or procedure. See National Insurance Corporation of Nigeria v. Power and Industrial Engineering Co. Ltd. (1986) 1 NWLR (Part 14) 1 at 36, Enang v. H Adu (1981) 11-12 SC 25 at 42, Nwagwu v. Okonkwo (1987) 3 N.W.L.R. (Part 60) 314 at 321 etc. No miscarriage of justice or violation of any principles of law or procedure has been established by the appellant in this case and I have no reason to disturb these concurrent findings by both courts below.
It is for the above and the more detailed reasons contained in the judgment of my learned brother, Ayoola, JSC that I, too, dismiss this appeal with N10,000.00 costs to the respondent.

 I read in advance the judgment of my learned brother Ayoola, JSC with which I agree for the reasons he has given. Having fully familiarised myself with the rather interesting facts of the case and the arguments canvassed, I wish to say a few words of mine.
The plaintiff/appellant claimed to be entitled to a parcel of land close to his house at Enugwu Ngwo in Udi Local Government Area, Enugu State. He averred in his statement of claim that his grandfather, Ude Agu, being the owner initially pledged it to the father of one Michael Chime named Ozu Nnadi Ukwuani Nwachime for a gun. The pledge was not redeemed before both pledgor and pledgee died. One Chime Nwagu (same as Chime Nwagu Ude) a half brother of Ude Agu (plaintiff’s grandfather) redeemed the land from Michael Chime for N312 10 . Chime Nwagu as head of Ude Agu family and said to have acted as the plaintiff’s trustee, the plaintiff’s father having predeceased his own father Ude Agu, later pledged the land to the defendant/respondent. Chime Nwagu has also died without redeeming the pledge.

P.11

The plaintiff has been making efforts to redeem the pledge without success despite the settlement brokered by a body known as Ubere Nze Society of Ngwo which the defendant accepted. In 1982 the defendant commenced a house on the land.
The defendant’s version as pleaded is that the great grandfather of the plaintiff was called Ude Agu. He begat Agu Ude (the plaintiff’s great grandfather) who begat Ude Agu (plaintiff’s grandfather) and Chime Nwagu Ude, plaintiff’s grandfather’s half brother. During the life time of Agu Ude (the plaintiff’s great grandfather), he shared his landed property between his two sons Ude Agu (plaintiff’s grandfather) the older and Chime Nwagu Ude, the younger. Chime Nwagu Ude built his dwelling house on part of his own share of the land and pledged the unbuilt portion to one Ozu Ukwuani Nwachime. In 1943 Chime Nwagu Ude sought the help of the defendant to  redeem the land. The defendant advanced him the sum of N312 10 for that purpose. A few months later, Chime Nwagu Ude in the presence of his wife and son gave half of the land to the defendant.
The defendant erected his house on the land in 1946. A few years later, Chime Nwagu Ude pledged the remaining half to Okwubanego Ude and Oji Agu for N38. In 1975, Chime Nwagu Ude again sought help from the defendant to redeem the land which he gave by providing the said 38 (as N16). Thereafter, Richard Agu Ude, son of Chime Nwagu Ude, erected a building on that portion of land. When dispute arose between the plaintiff and the defendant as to who owned the land, the Umuozonshi sub family, the Umuishingwu family and the Ubere Nze Society of Ozo titled men in Ngwo in turn and at the different times settled ownership in favour of the defendant.

P.12

The evidence led by the plaintiff was such that the learned trial Judge (B. O. Okadigbo, .J) observed as follows:
“All the facts which are necessary for the proper determination of the ownership of the land in dispute are not provided by the sweeping assertion as in paragraph 6 in the amended statement of claim where the plaintiff stated as follows:-
‘The said land in dispute was the property of the said Ude Agu.’
I am therefore satisfied that the plaintiff has not discharged the onus of proving that either his great grandfather or his grandfather was the owner of the land in dispute. I am further satisfied that the plaintiff has not proved in the circumstances that he inherited the land in dispute.”
The learned trial Judge also found among other things that the pledges pleaded, particularly that the land was pledged to the defendant, was not proved. The claim was accordingly dismissed.
The appeal to the Court of Appeal Enugu Division was fought by the appellant on three issues namely:
1. Whether Chime Nwagu Ude held the land in dispute as beneficial owner or as trustee for the appellant.
2. Whether the transaction between Chime Nwagu Ude and the respondent was a pledge or an outright gift.
3. Whether the trial court was right in dismissing the appellant’s case.”
The court below held that title was in issue which ought to be proved. Salami, JCA who read the leading judgment observed:
“The appellant having failed to establish his ownership of the land in dispute the issue of who was it that pledged the land fades into obscurity since the learned counsel for appellant rightly, in my view, conceded in the appellant’s brief that no one can pledge what does not belong to him. This appears to dispose of the appeal.”

P.13

The learned Justice also rejected the claim by the plaintiff that Chime Nwagu Ude was his trustee who held the land in trust for him as the evidence adduced in proof was inadequate. The appeal was dismissed. The appellant has again appealed and seeks in this court a resolution of six issues. On the face of those issues, three of them are on questions of fact which the two courts below found. They therefore are issues of concurrent findings. They are issues 3, 5 and 6. Let me reproduce all the six issues as follows:
“1. Whether the Court of Appeal misdirected itself by holding that the plaintiff/appellant joined claim for injunction and trespass with the declaration that he was entitled to redeem the pledged property.
2. Whether the Court of Appeal was right to have failed to consider some of the issues for determination formulated and argued by the plaintiff/appellant, and whether such failure to consider those issues occasioned a miscarriage of justice.
3. Whether the Court of Appeal was right in concluding that the trial court was correct in rejecting the evidence of PW1 (Michael Chime) on trusteeship by Ngwo Native Law and Custom.
4. Whether the Court of Appeal was right to ignore (as the trial Judge did) the evidence of a dead  witness, Ozo Jones Ozougwu on exhibit B, which (inter alia) exhaustively dealt with trusteeship  by Ngwo native law and custom, and which evidence clearly supported the plaintiff/appellant’s case.
5. Whether the Court of Appeal was right to have concluded that the plaintiff/appellant failed to prove that his grandfather’s half brother, Chime Nwagu Ude, was his trustee under Ngwo native law and custom.
6. Whether the Court of Appeal was right in concluding that the plaintiff/appellant did not prove his case.”

P.14

The law is well settled that this court will not interfere with concurrent findings of fact by the two courts below unless special circumstances have been shown why it should do so. It is either that the findings are perverse or there have been procedural or substantive errors committed by those courts which has led to a miscarriage of justice: see Adebayo v. Ighodalo (1996) 5 NWLR (Pt 50) 507; Oladele v.Anibi (1998) 9 NWLR (Pt.567) 559; lvienagbor v. Bazuaye (1999) 9 NWLR (Pt.620) 552. I do not see that the findings are perverse nor were errors of law or procedure committed by the courts below.
The plaintiff testifying as P.W.1 relied largely on his own evidence to prove his case. The defendant did the same. The learned trial Judge did not accept the evidence of the plaintiff giving reasons why. Indeed at a point he observed as follows:
“Having carefully gone through the evidence of P.W.1, I must say that I have no hesitation in saying that I regard him as a very unreliable witness and in support of this view I would like to refer to his evidence where he said inter alia as follows.”
The learned trial Judge then reproduced an aspect of his evidence and held that he did not believe it. In particular he proceeded further to say:
“I am satisfied that the plaintiff has failed to prove the alleged customary law of his people on  trusteeship. In other words, that the plaintiff has failed to prove that after the death of his grandfather Chime Nwagu Ude became the trustee of the landed property of his late grandfather in accordance with their customary law.”
The plaintiff had sought to show that Chime Nwagu Ude was not the owner of the land in dispute by inheritance but was a trustee holding the land in trust for him but the defendant testified to the contrary. The learned trial Judge rejected the plaintiff’s version.

P.15

There is no way an appellate court can justifiably say that the finding was wrong upon the nature of evidence produced by either side. Issues 3,5 and 6 must be resolved against the appellant in the circumstances.
In regard to issue 1, I think the appellant has looked at what the Court of Appeal said from a narrow point of view. I agree that the court below may have put the question of the consequences of joining a claim for injunction and trespass with a claim for a declaration to a right to redeem in the circumstances rather awkwardly or that it was wrong to have even put it at all in the circumstances of this case. The court said as follows:
” …. the appellant having joined claims for injunction and trespass with the declaration that he was entitled to  redeem the pledged property has put his title in issue.  His claim for trespass and for an injunction to restrain further act or acts of trespass postulates that the ownership of the disputed area is his, either by gift or inheritance or exclusive possession. The principal question to be tackled in the appeal would accordingly appear to be whether the appellant has discharged the onus placed on him to show that ownership of the land in dispute rested in him.”
It was not the reliefs sought by the plaintiff that raised the issue of title as the court below erroneously held. Those reliefs did not prima facie do that. What led to the joining of issue as to title was the way the defendant pleaded in which he alleged that Chime Nwagu Ude inherited the land rather than plaintiff’s grandfather, and that the said Chime made a gift of it to him and not by pledge.
This therefore placed the burden on the plaintiff to prove
(1) that the land was the property inherited by him as an infant (but held on his behalf by Chime Nwagu Ude as his trustee);
(2) that Chime Nwagu Ude pledged the land in that capacity to the defendant.

P.16

It is obvious from the issues joined in this case that the paramount question that must be resolved was whether the land in question devolved to his grandfather by inheritance which would entitle him (plaintiff) to inherit the same as the eldest son of his father who predeceased his said grandfather. It was a clear issue of title at that point. There was no proof according to the two courts below. If there had been such proof, or if the courts below had accepted his evidence to that effect, then the question that Chime Nwagu Ude, his father’s half brother held the land not as owner but as trustee would have arisen. But the defendant testified that Chime Nwagu Ude inherited the land from his father. The two courts though not specifically finding for the defendant on the point did not disbelieve him but rejected the plaintiff’s evidence. The plaintiff was therefore unable to discharge that burden placed on him. He did not even call evidence to establish the allegation as to how some people looked into the matter and settled ownership of the land in his favour.
The learned trial Judge summarised the case made by either side before proceeding to reject the plaintiff’s version. In his summary he said as follows:
“The case for the plaintiff therefore is that since the land in dispute was originally the property of his grandfather which he inherited on the death of his grandfather as his father had predeceased his grandfather, he is now entitled to redeem the land from the defendant. In short his case is that Chime Nwagu Ude acted throughout as his trustee because he was at that stage a minor and that it was in his capacity as a trustee that he pledged the land in dispute to the defendant. The case for the defendant briefly is that Chime Nwagu came to him alone and borrowed the sum of N25 with which he redeemed the land in dispute from P.W.1 and that thereafter Chime Nwagu Ude pledged the land in dispute to him.

P.17

It is also the case for the defendant that Chime Nwagu told him that the land in dispute was the portion of the land, which he inherited from his father. It is also the case for the defendant that Chime Nwagu Ude finally gave the land in dispute to him as a gift in consideration of services which he rendered him. As I have observed earlier the facts of this case are not very much in dispute. What seems to be in dispute however is whether the land in dispute was the property of the plaintiff’s grandfather or the property of Chime Nwagu Ude.”
The burden of establishing that the property was that of plaintiff’s grandfather rested squarely, as I have said, on the plaintiff. Without discharging that burden his case was bound to collapse. The learned trial Judge unequivocally found as follows:
“I am therefore satisfied that the plaintiff has not discharged the onus of proving that either his great grandfather or his grandfather was the owner of the land in dispute. I am further satisfied that the plaintiff has not proved in the circumstances that he inherited the land in dispute.”
Learned counsel for the plaintiff argued that there was evidence given by the plaintiff as to inheritance which he said the learned trial Judge could have acted on. It is true that the plaintiff by himself alone testified as to his version of ownership and inheritance. It is not enough that such evidence exists. Other factors will be taken into account by the trial court such as whether the evidence was unchallenged or whether it was supported in any way by other evidence. The defendant put forward a different version. That was enough challenge. As said earlier, even though the learned trial court did not specifically prefer the defendant’s version, it rejected the plaintiff’s case. In law, a plaintiff must show a prima facie case before the need to consider the defendant’s case can arise: see Aromire v. Awoyemi (1972) 2 SC 1 at 10-11.

P.18

This is a pre-test that the burden is on a plaintiff to prove his case, and when the defendant adduces evidence the case is then decided on the balance of probabilities: see Mogaji v. Odofin (1978) 4 SC 91; Kaiyaoja v. Egunla (1974) 12 C SC 55; Onwuama v. Ezeokoli (2002) 5 NWLR (Pt.760) 353.
Issues, 2 and 4 depend largely on whether the two courts below would possibly have found ownership of the land proved by the plaintiff upon the evidence available. Once ownership was not established, the question of pledge on the part of the plaintiff and that of trusteeship under Ngwo native law and custom by which the evidence about Chime Nwagu Ude being a trustee to the appellant could have been assessed would become non issues.
On the state of the evidence particularly in regard to the crucial issue whether the burden of proving ownership of the land has been discharged by the plaintiff to lead to the consideration of the alleged pledge, I am satisfied that there is no basis upon which I am entitled to interfere with the concurrent findings of the two courts below. Having regard to all other circumstances to which consideration has been given in this judgment, I find no merit in this appeal. I dismiss it with N10,000.00 costs to the respondent.

I was privileged to have read in advance the draft of the judgment just delivered by my learned brother Ayoola, JSC. And as I agree with the reasoning that led to the conclusion that the appeal lacks merit thereby dismissing the appeal, I also dismiss the appeal. In the result, I also abide with the other consequential orders made in the said judgment.

Appeal dismissed.

P.19