CHIEF BENSON EZIKE & ANOR V. CHIEF ALPHONSUS EGBUABA (2019)

Background

This appeal arose from a dispute over ownership and possession of land in Imo State, Nigeria. The appellants, representing their family, instituted Suit No. HOR/18/93 at the High Court of Imo State, Orlu Judicial Division. They claimed that the disputed land, which they called “Ala Azu Okwo Ogwugwu Ezinkwo,” belonged to their family and had been pledged by their ancestor, Okam Nwabu, to the respondent’s ancestor, Oledibe Umejure. According to the appellants, the pledge allegedly arose after the loss of a sheep in connection with a customary transaction known as Ilulu Aturu. They sought declarations of their right of occupancy and of the existence of the pledge, together with an order compelling the respondent to accept N2,000 as the redemption sum.

The respondent denied the alleged pledge and claimed ownership and exclusive possession of the land, which he described as “Ala Ama Umuiroha.” He maintained that the land had been inherited through his family and that his ancestor, Egbejembia, had originally deforested it. The respondent commenced a separate action, Suit No. HOR/59/94, seeking a declaration of his statutory right of occupancy, damages for trespass and a perpetual injunction. The two suits were consolidated for trial.

At trial, the appellants relied on oral testimony and documentary evidence, including Exhibit F, said to contain the decision of a customary arbitration panel which allegedly found in their favour and permitted redemption of the land upon payment of N2,000. The respondent relied, among other things, on Exhibit H, another document arising from a customary arbitration which favoured his claim. The trial court rejected the appellants’ case, granted the respondent’s claims and awarded damages for trespass. The Court of Appeal affirmed that decision. The appellants then appealed to the Supreme Court.

Issues

1. Whether the Court of Appeal was right to affirm the finding that the appellants failed to prove the alleged customary pledge.
2. Whether Exhibit F could operate as an estoppel, particularly estoppel per rem judicata.
3. Whether the Court of Appeal’s observation that the appellants’ complaint concerning the trial procedure was an afterthought adversely affected its decision.

Ratio Decidendi

The Supreme Court dismissed the appeal. On the issue of customary pledge, the Court held that the burden rested on the party asserting the existence of the pledge. A customary pledge is an issue of fact requiring credible and specific evidence. The claimant must establish the fact of the pledge, the identities of the parties, the presence of witnesses, the pledge sum, delivery of possession to the pledgee and the agreed mode of redemption. The appellants failed to provide reliable evidence of these essential elements. Their witnesses contradicted one another concerning the parties to the transaction and the circumstances in which the alleged pledge occurred. Assertions made by counsel in address could not substitute for evidence.

The Court further held that the appellants had failed to prove their family’s title or root of title to the land. Consequently, applying the principle nemo dat quod non habet, their ancestor could not have validly pledged land which the appellants had not shown belonged to him or his family. The trial court’s finding on that point had not been specifically challenged by an appropriate ground of appeal and therefore remained binding. The Supreme Court also emphasised that it does not ordinarily interfere with concurrent findings of fact by the trial court and the Court of Appeal unless those findings are shown to be perverse, unreasonable, unsupported by evidence or to have occasioned a miscarriage of justice.

On estoppel, the Court explained that estoppel per rem judicata is a rule of evidence preventing parties or their privies from re-litigating matters finally determined by a competent court between them. Exhibit F did not satisfy that principle. The arbitration was inconclusive, the decision was not accepted by both parties, and the parties had not performed the required act of swearing an oath to authenticate ownership. Exhibit H had also been made earlier and was inconsistent with Exhibit F. Since the arbitral process did not produce a final and mutually accepted determination, neither Exhibit F nor Exhibit H could bind the parties or create estoppel.

Court Findings

The Court found that the lower courts had properly considered the pleadings and evidence. The trial judge did not ignore the issue of pledge, as alleged by the appellants; rather, the judge considered it and concluded that it was unsupported and amounted to a “hoax” or a figment of imagination. The Court of Appeal had also reviewed the evidence and correctly affirmed the trial court’s conclusions.

The Supreme Court rejected the complaint that the Court of Appeal had formed a prejudicial opinion by describing the appellants’ procedural challenge as an afterthought. The appellants’ grounds of appeal themselves contained several allegations of procedural irregularity, improper evaluation of evidence and other complaints against the conduct of the trial. The Court of Appeal’s observation was therefore a fair comment on the arguments presented and did not demonstrate bias or a failure to determine the real issues.

Conclusion

The appeal was held to be without merit and was dismissed. The judgment of the Court of Appeal, which affirmed the judgment of the High Court of Imo State in favour of the respondent, was affirmed. The Supreme Court awarded costs of N200,000 against the appellants.

Significance

The decision restates important principles governing customary land pledges in Nigeria. A claimant cannot rely on a bare family tradition or submissions of counsel; the transaction and its essential incidents must be established by credible evidence. Proof of title is also fundamental because a person cannot pledge an interest that he does not possess. The case further confirms the restraint exercised by the Supreme Court when reviewing concurrent findings of fact and clarifies that an inconclusive or unaccepted customary arbitration decision cannot create estoppel or bind disputing parties as a final adjudication.