OKON & ORS v EFFIONG & ANOR.

OKON & ORS v EFFIONG & ANOR.


IN THE COURT OF APPEAL
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR

ON WEDNESDAY, 8TH FEBRUARY, 2017


Appeal No: CA/C/210/2015
CITATION:

Before Their Lordships:

IBRAHIM MOHAMMED MUSA SAULAWA, JCA

STEPHEN JONAH ADAH, JCA

JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA


BETWEEN

RAPHAEL EKPE OKON

LINUS ETIM ESSIEN OKON

SYLVESTER EDEM ESSIEN OKON
(For themselves and on behalf of Nung Essang family of Ekpri Nsukara in Uyo Local Government Area)

(APPELLANTS)

AND

SYLVESTER IME EFFIONG

ANTHONY EFFIONG AKPAN

(RESPONDENTS)


PRONOUNCEMENTS


A. APPEAL
1. Issues for Determination – Effect of an issue for determination unrelated to a ground of appeal

Effect of issue(s) for determination not distilled from/related to ground(s) of appeal

“The law is settled that an issue for determination which is not supported or related to any ground of appeal is liable to be struck out or discountenanced as incompetent. In the case of KALU v. ODILI (1992) NWLR (PT. 240) 130 NNAEMEKA-AGU, JSC held as follows:

“As we have said before on several occasions, an issue for determination in an appeal must not only arise from and relate to the grounds of appeal filed, and no more, but also must be such a proposition of law or of fact or both so cogent, weighty, and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the Court.” Per ADAH, JCA read in context

2. Issues for Determination – Reason for the formulation of issues for determination

Purpose of formulating issue(s) for determination

“The purpose of issues for determination being to identify what is in issue in the grounds of appeal to be argued. See ASAMA VS. STATE (1991) 3 NWLR (PT. 180) 422.” Per ADAH, JCA read in context

3. Interference with Findings of Fact – Exception to the general rule of noninterference by an Appellate Court with the findings of fact made by a Trial Court

Circumstances in which an appellate court will interfere with the findings of facts made by a lower court

“Ordinarily, an appellate Court is not supposed to tamper with the findings of a trial Court unless the decision of the trial Court is perverse. In the case of NEPA VS. OSOSANYA (2004) 5 NWLR (PT. 867) 601, IGUH, JSC held that a decision of a Court is perverse when it ignores the facts or evidence before it and, when considered as a whole, amounts to a miscarriage of justice. In such a case, an appellate Court is bound to interfere with such a decision and to set it aside.” Per ADAH, JCA read in context

B. CUSTOMARY LAW
4. Customary Pledge – Effect of a pledge on the pledgor’s radical title

Whether the radical title of the pledgor is extinguished by the pledge under customary law

“The Lower Court before dismissing both the claims of the Appellants and the Respondents made an elaborate and extensive exploration of the customary pledges on the land.

As found out by the trial Court from the record before this Court once a pledge always a pledge. This signifies that a pledge over the land cannot be taken for ownership of the land. The concept of pledges in customary setting does not admit of a Pledgee asserting ownership of the land against the Pledgor. In the case of ONOBRUCHERE v. ESEIGINE (1986) 1 NWLR (PT. 19) 799, OPUTA, JSC held as follows:-

“In Customary law, the Pledger retains the radical title. It is not extinguished by the pledge. The Pledgor has the right of redemption, and it does not matter for how long the land had been pledged: See IKEANYI v. ADIGHOGU (1957) 2 E.N.L.R. 38 at P. 39; LERAGUN v. FUNLAYO 1955-56) W.R.N.L.R. 167; AGBO KOFI v. ADDO KOFI (1933) 1 W.A.C.A. 284; ORISHARINU v. MEFUE (1937) 13 N.L.R. 181.” Per ADAH, JCA read in context

5. Customary Pledge – Principles governing customary pledges

Principles which govern customary pledges

“Furthermore, in the case of ACHILIHU v. ANYATONWU (2013) 12 NWLR (PT. 1368) 256, the Supreme Court applying her earlier decision in OKOIKO v. ESEDALUE (1974) 3 SC 15, laid down the principles which govern customary pledges as follows:

(1) That a pledge is perpetually redeemable and the Pledgor’s family is entitled to redeem the pledged land for the amount of the original loan and for nothing more;

(2) That on redemption by the pledgor, a pledge of land is not entitled to compensation for putting the land to extra-ordinary economic uses while in possession;

(3) That when pledged land is being redeemed by the Pledgor or successor-in-title the pledgee must account for benefits derived by him from exploitation of the land while in possession; and

(4) That the Pledgee in possession must not do anything to clog the Pledgor’s right of redemption of the pledged land. In other words, the concept of a leasehold under common law is alien to customary pledge. There is a slight variation in Northern Nawa concerning the duties and liabilities of a pledgee under a pledge and the time limit for redemption. The duties of a pledgee in respect of property pledged are to take proper care of the property, to deliver it to the pledgor when the debt is repaid or to deliver it to another person if the Pledgor so demands.” Per ADAH, JCA read in context


LEAD JUDGMENT DELIVERED BY ADAH, JCA


This is an appeal from the judgment of the Akwa Ibom State High Court in Suit No. HU/129/1991 delivered on the 19th day of July, 2013. (CORAM I. E. UKANNA, J.).

The subject matter of the dispute between the parties to this case is a parcel of land known commonly by the parties as “Ekpene/Amia” situate at Ekpri Nsukara Village in Uyo Local Government Area of Akwa Ibom State.

The Appellants were the Plaintiffs at the Lower Court while the Respondents in this appeal were the Defendants. By the statement of claim of pages 50 to 52 of the Record of Appeal the Plaintiffs now Appellants claimed:

(1) A Declaration that the Plaintiffs are entitled to the statutory right of occupancy over the piece or parcel of land known as and called “Ekpene Amia” lying, situate and being at Ekpri Nsukara Village in Uyo Local Government Area within the jurisdiction of this Honourable Court.

(2) An Order of this Honourable Court on the Defendants to accept the sum of N10.00 deposited amount being the money for which the aforesaid land was pledged by one Udo Ukpe (now deceased) to the Defendants’ grandfather.

(3) N20, 000.00 being general damages for trespass and unlawful occupation of the Plaintiffs land aforesaid.

The Defendants now Respondents joined issues and counter claimed. Their counter claim captured at page 59 of the Record of Appeal is as follows:-

(1) Declaration that the Defendants are entitled to the statutory rights of occupancy over the piece or parcel of land known as and called “Ekpene Amia, lying and situate at Anua Offot, Uyo Local Government Area within the jurisdiction of this honourable Court.

(2) N50, 000.00 general and special damages for trespass and destruction of the Defendants food and economic crops.

SPECIAL DAMAGE

300 Stands of cassava at N15.00 per stand = N4, 500.00

40 stands of plantains at N150 per stand = 6, 000.00

20 stands of banana at N100 per stand = 2, 000.00

2 stands of oil palm tree at N2, 000 per stand = 4,000.00

4 stands of wine palms at N1, 000 per stand = 4,000.00

2 stands of coconuts at N2, 000 per stand = 6,000.00

1 stand of orange tree at N2, 500 per stand = 3,000.00 2 stands of mango trees at N2, 500 per stand = 5 000.00 = N34,500.00

General damage = 15,000.00

Total = N50,000.00

(3) An Order for perpetual injunction restraining the Plaintiffs’ their agents, servants, wives and princess from further acts of trespass upon the land.

The claim and counter claim were heard by the Lower Court. The Lower Court dismissed both the claim and the counter claim. Aggrieved by the Lower Court’s decision the Appellant now appealed to this Court. The notice of appeal was filed on the 15th day of October, 2015.

The Record of appeal was transmitted to this Court on 4th November, 2015. The Appellants filed their brief of argument on 9th November, 2015 while the Respondents filed their brief of argument on 23rd November, 2015.

These briefs were respectively adopted by the learned counsel for the parties when the appeal was heard on the 12th day of January, 2017.

The Appellants raised two issues for determination. These two issues were adopted by the Respondents in their brief of argument. These two issues are framed as follows:

1. Whether or not the learned trial judge was right in dismissing the claim of the Appellants. (Distilled from ground 1, 2 and 3 in the Notice of Appeal).

2. Whether or not the learned trial judge was right in ignoring the legal effect of the judgment of the Offot District Court in Suit No. 54/89 on the claim of the Appellants to title to the land in dispute.

A cursory look at these two issues raised will clearly show that issue one has been framed from grounds 1, 2, and 3 in the notice of appeal. Issue two was not specifically distilled and framed from any of the grounds. The law is settled that an issue for determination which is not supported or related to any ground of appeal is liable to be struck out or discountenanced as incompetent. In the case of KALU v. ODILI (1992) NWLR (PT. 2 0) 130 NNAEMEKA-AGU, JSC held as follows:

“As we have said before on several occasions, an issue for determination in an appeal must not only arise from and relate to the grounds of appeal filed, and no more, but also must be such a proposition of law or of fact or both so cogent, weighty, and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the Court”.

The purpose of issues for determination being to identify what is in issue in the grounds of appeal to be argued. See ASAMA VS. STATE (1991) 3 NWLR (PT. 180) 422.

In the instant case issue two framed has no contact or connection with any of the grounds of appeal. That issue therefore is incompetent and I accordingly strike it out. The only issue to be looked into and which I believe can resolve this appeal is issue one. That issue is therefore set down for consideration.

The sole issue for determination therefore is the issue of whether or not the learned trial judge was right in dismissing the claim of the Appellants?

The learned counsel for the Appellants in the Appellants’ brief canvassed that the learned trial judge had held that the land in dispute was pledged first by Okon Oso of the Appellants’ family to Udo Ukpe who turn pledged the land to Itak Ukpa the forebear of the Respondents. That with that finding it was clear that the Respondents were not the owners of the land but are only descendants of a Pledgee to wit Itak Ukpa. Counsel relied on the case of ACHILIHU vs. ANYATONWU (2013) 220 LRCN (PT. 2) 215, 220 and canvassed that the owner of the land has a stronger title than the Pledgee. That already there was a judgment of the Customary Court in Suit No. 54/89 against Effiong Udo Ukpe to whom the land was pledged. That on the strength of Exhibit B, the Appellants had redeemed the land from Effiong Udo Ukpe, the 1st Pledgee remaining the pledge of Itak Ukpa. The Lower Court he said, was bound by law to grant the reliefs claimed by the Appellant. He urged the Court to resolve the issue in favour of the Appellants.

The Respondents’ counsel supported the Lower Court’s decision. The learned counsel for the Respondents canvassed in the Respondents’ brief that:

the law is settled that declaration of title to land is granted at the discretion of the trial judge after hearing both sides, and to succeed, a plaintiff must show how the land devolved and eventually came to be owned by him. That this is done by the plaintiff narrating a continuous chain of devolution which is tested by cross-examination. That at the conclusion of oral testimony, the trial Judge is to decide which of the two is telling the truth and proceed to grant a declaration of title to the side that he is impressed with. That the plaintiff succeeds on the strength of his case and not on the weakness of the defendant’s case.

The learned counsel contended further that before the incidence of pledge can arise as contended by the Appellant in his argument, certain ingredients of pledge must be established namely:-

(a) That the plaintiffs/appellants are the Pledgors.

(b) That the defendants/respondents are the pledgees.

(c) That the land in dispute was the subject matter of the pledge.
(d) When the pledge took place.

(e) For how much the land was pledged, etc.

He submitted that the principles which govern customary pledges as laid down by the Supreme Court in OKOIKO & ANOR. v. ESEDALUE & ANOR. (1974) 3 S.C. 15 and encapsulated in the case cited by the Appellants i.e. ACHILIHU VS. ANYATONWU (2013) 220 LRCN (PT. 2) 215 can only come to play when it is established and determined by the Court that the land in dispute is on pledge from the plaintiffs/appellants as Pledgors to the defendants/respondents as the pledges.

He urged the Court to resolve this issue in favour of the Respondents.

From the facts presented and the submission of counsel before the lower Court, it is obviously certain that the parties in this case are contesting the ownership of the land called Ekpene Amia.

The Lower Court in its judgment particularly at pages 305 to 309 of the Record of Appeal found as follows:-

”The Plaintiffs case as put forward by PW1 and PW2 is that ‘Ekpene Amia’ which was deforested by Chief Oso Akpan Essang and inherited by Okon Oso was pledged to Chief Udo Ukpe for 5 bundles of manila. PW1’s father, Chief Essien Okon Oso is said to have attempted to redeem the land from Chief Udo Ukpe only for Chief Udo Ukpe to reveal that he had in turn pledge the land to Itak Ukpa. There is evidence that after the death of Chief Udo Ukpe, the plaintiffs shifted pressure to his son Effiong Udo Ukpe who asked to be given time. DW1’s father testified that they later had recourse to Offot District Court in suit No, 54/89 in pursuant of redemption of the land. The proceeding in that suit was admitted as Exhibit B in this trial.

Exhibit B is the judgment of Offot District Court in Suit 54/89. It relates to the land in dispute the decision in Exhibit B established the fact that Okon Oso did pledge the farmland known and called ‘Amia’ to Udo Ukpe. The 1989 proceedings established that that course of action arose 70 years ago.

It was on the strength of Exhibit B that the Plaintiffs redeemed the land from Effiong Udo Ukpe. I had earlier stated the now well settled principle that “once a pledge always a pledge”.

…It is on totality of the foregoing that I hold that there were two pledges in respect of the land in dispute, the first pledge was by Okon Oso to Udo Ukpe. The second being by Udo Ukpe to Itak Ukpa.

Exhibit B establishes that pledge money was refunded to Effiong Udo Ukpe”.

The core of the claim of both the Appellants and the Respondents is declaration to title of the land in issue. This was relief 1 in the claim of the Appellants at the Lower Court and it is also relief 1 of the Respondents in their counter claim before the Lower Court. The Lower Court before dismissing both the claims of the Appellants and the Respondents made an elaborate and extensive exploration of the customary pledges on the land.

As found out by the trial Court from the record before this Court once a pledge always a pledge. This signifies that a pledge over the land cannot be taken for ownership of the land. The concept of pledges in customary setting does not admit of a Pledgee asserting ownership of the land against the Pledgor. In the case of ONOBRUCHERE v. ESEIGINE (1986) 1 NWLR (PT. 19) 799, OPUTA, JSC held as follows:-

“In Customary law, the Pledger retains the radical title. It is not extinguished by the pledge. The Pledgor has the right of redemption, and it does not matter for how long the land had been pledged: See IKEANYI v. ADIGHOGU (1957) 2 E.N.L.R. 38 at P. 39; LERAGUN v. FUNLAYO (1955-56) W.R.N.L.R. 167; AGBO KOFI v. ADDO KOFI (1933) 1 W.A.C.A. 284; ORISHARINU v. MEFUE (1937) 13 N.L.R. 181”.

Furthermore, in the case of ACHILIHU v. ANYATONWU (2013) 12 NWLR (PT. 1368) 256, the Supreme Court applying her earlier decision in OKOIKO v. ESEDALUE (1974) 3 SC 5, laid down the principles which govern customary pledges as follows:

(1) That a pledge is perpetually redeemable and the Pledgor’s family is entitled to redeem the pledged land for the amount of the original loan and for nothing more;

(2) That on redemption by the pledgor, a pledge of land is not entitled to compensation for putting the land to extra-ordinary economic uses while in possession;

(3) That when pledged land is being redeemed by the Pledgor or successor-in-title the pledgee must account for benefits derived by him from exploitation of the land while in possession; and

(4) That the Pledgee in possession must not do anything to clog the Pledgor’s right of redemption of the pledged land. In other words, the concept of a leasehold under common law is alien to customary pledge. There is a slight variation in Northern Nawa concerning the duties and liabilities of a pledgee under a pledge and the time limit for redemption. The duties of a pledgee in respect of property pledged are to take proper care of the property, to deliver it to the pledgor when the debt is repaid or to deliver it to another person if the Pledgor so demands.

In the instant case, the Lower Court had found that the land in issue was pledged by Okon Oso the heir of Chief Oso Akpan Essang who deforested the land, to Chief Udo Ukpe who further pledge the land to Itak Ukpa. There is no evidence before the Court to indicate that the radical title to this land shifted to any other person other than the Appellants.

Since the Lower Court found them to be the Pledgor of the land and that the land was deforested by their father, it was probable and consequential for the title which inhered in the Appellants to be declared for them by the Lower Court. The learned trial judge was thereof in error by not declaring the title to the land for the Appellants in this case. Ordinarily, an appellate Court is not supposed to tamper with the findings of a trial Court unless the decision of the trial Court is perverse. In the case of NEPA VS. OSOSANYA (2004) 5 NWLR (PT. 867) 601, IGUH, JSC held that a decision of a Court is perverse when it ignores the facts or evidence before it and, when considered as a whole, amounts to a miscarriage of justice. In such a case, an appellate Court is bound to interfere with such a decision and to set it aside.

In the instant case, the trial Court had from the evidence before it enough evidence to declare or grant the title of the land in issue to the Appellants but it did not. In fact, the situation here is that the trial Court dismissed the claim of the Appellants as well as the counter claim of the Respondents. No right of the parties was declared. This no doubt is a classical case of failure of justice which must not be allowed to go unredressed. The evidence before the trial Court in the instant case shows clearly that the Respondents were only on the land as Pledgees and not as owners. The Appellants who are the descendants of the Pledgors to the land no doubt are entitled to the title to the land.

This issue therefore, is resolved in favour of the Appellants. This appeal consequently has merit. The appeal is allowed. The judgment of the High Court of Akwa Ibom holding at Uyo in Suit No. HU/129/1991 delivered on the 19th day of July, 2013 as relates to the claim of the Appellants is hereby set aside. Reliefs 1 and 2 of the Appellants in the suits are hereby granted and I so order. Relief 3 in the suit talks of general damages for trespass and unlawful occupation of the Plaintiffs’ land. This relief is absurd because the Respondents as Pledgees were in lawful occupation of the land while the pledge was on. That relief being absurd is hereby dismissed.

The order of dismissal of the counter claim of the Respondents is however upheld.

Parties are to bear their respective costs.

SAULAWA, JCA

I agree with the reasoning and conclusion reached in the leading judgment just delivered by my learned brother, the Hon. Justice S. J. Adah, JCA, to the effect that the instant appeal is meritorious. I too hereby allow the appeal and abide by the consequential orders therein.

OYEWOLE, JCA

I had the privilege to read the draft of the lead judgment just delivered herein by my learned brother STEPHEN JONAH ADAH, JCA and I totally endorse the reasoning and conclusions therein.

Having found that the radical title to the land in dispute was in the Appellants and that the Respondents were in fact their pledgees, the learned trial Judge ought to have declared title in favour of the Appellants. I also find merit in this appeal and allow it. I adopt the consequential orders in the lead judgment.