Agada Okoiko & Anor V. Ozo Esedalue & Anor (1974)

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ELIAS, CJN.

In Suit No. UHC/38/69, Ogbobine, J., gave judgment in favour of the plaintiff against the 2nd and the 3rd defendants in the Ughelli High Court on September 25, 1970 as per the plaintiff’s Statement of Claim which reads as follows: “1 An Order of Court allowing the plaintiffs to redeem Omokpa land from the defendants on payment of £15. 2. Recovery of possession of the said Omokpa land from the defendants. 3. Injunction restraining the defendants, their agents and/or servants from interfering with plaintiffs’ possession of the Omokpa in any form or manner.”

The suit was first brought in the Customary Court, Iyede, in the Isoko Division of the Mid-West wherein the plaintiff claimed the redemption of Omokpa land which had been pledged by his grandfather to the defendants’ grandfathers for three pieces of cloths which were equivalent to £15 (N30) in value in modern currency. Between the filing of the suit and the hearing of the case, the 2nd and the 3rd defendants brought an application under Section 29(1) of the Customary Court Edict, 1966 praying that the case be transferred from the Customary Court to the High Court , and this was duly granted.

The plaintiff, for his part, was, on July 3, 1970, granted leave to amend his original Statement of Claim in the form set out above, while the defendants were also granted leave to defend the action for themselves and on behalf of Eto, Awatoma and Use families respectively. The plaintiff annexed to his Statement of Claim a survey plan of the land in dispute (Exhibit A).   Pleadings were ordered and duly filed by both parties. The plaintiff stated that he had sued for himself and on behalf of his (Omoro) family of Oteri-Iyede and that he was duly authorised by that family to proceed with his claim against the defendants and their respective families. Agboro (P.W.4) gave evidence confirming this fact.

The plaintiff’s case was that one Omoro had a piece of land called Omokpa and also had five children, one of whom called Esegbe pledged the land after Omoro’s death to one Eto, who was the grand-father of the 1st defendant, for three pieces of cloths. Anatoma, the grandfather of the 2nd defendant, and Use, the grandfather of the 3rd defendant, had each contributed a piece of cloth to Eto’s own piece of cloth to make up the three pieces of cloths required for the pledge of Omokpa land by Esegbe to whom the cloths were given. Then all three proceeded to put the land to use and had continued to do so till the present action was brought. The plaintiff further stated that, a few years previously, his family decided to redeem Omokpa land from the defendants who agreed to the proposal on the condition that the plaintiff’s family paid the sum of £1,000 (N2,000) to the defendants’ families. The plaintiff’s family regarded this amount as being excessive and so refused to pay. A little later, the plaintiff’s family renewed the demand to redeem their land but, this time, the amount asked for by the defendants was reduced to £600 (N1,200), which the plaintiff’s family still considered excessive in view of the fact that Omokpa land was originally pledged for the equivalent of £15 (N30). Thereupon, the defendants changed their tune and put forward the claim that the land was originally an absolute sale by Esegbe to their grandfathers, and not a pledge. Agboro Okoro, last plaintiff’s witness, testified that he was one of the three members of the Omoro family that attempted to negotiate the redemption of the pledged land with the defendants and that it was only on the third occasion that the defendants for the first time set up the claim that the land was sold, not pledged, The plaintiff, however, gave evidence that, according to the custom of the Iyede people, the sale of land was unknown, and that land could only be pledged and was redeemable on payment of the exact amount for which it was pledged and no more. This was corroborated by the evidence of Atorhe Orde (P.W.2). He admitted that the father of the 1st defendant had rubber plantation in Omokpa land and that members of the defendants’ families carried on farming on the land.

The first defendant, however, admitted in evidence the claim of the plaintiff against himself and the other defendants. He confirmed that the land was pledged by Esegbe of Omokpa land to Eto, his grandfather, for three pieces of cloths. The land was then taken possession of by their grandfathers who as well as they (their descendants) had continued to farm on the land, including the planting of cash crops and the maintenance of rubber plantations therein. This witness also stated that, after the pledge, Omokpa land was not partitioned by the three brothers – the pledgees, but that they had always used the land in common as one piece. He affirmed that the plaintiff was entitled to redeem his land on payment of the value of the three pieces of cloths which he agreed was £15 (N30), and confirmed plaintiff’s story of the attempts to redeem the pledge and said that they agreed to surrender the pledged land to the plaintiff’s family on payment of £1,000 which amount they again reduced to £600, and “that the reason why they demanded that amount was to make it impossible for the plaintiff to redeem the pledged land”.

Finally, he confirmed the evidence of custom given by the plaintiff in regard to pledged land among the Iyede people. The learned trial Judge summed up the evidence as follows:   “I am satisfied from the evidence of the plaintiff and his witnesses that the transaction between Esegbe and Eto was a pledge and that it was not the intention of those concerned that Esegbe or his family should absolutely relinguish their title to or interest in Omokpa land. I believe the evidence of the plaintiff and that of Agboro Okoro (P.W.4) that the land was pledged and not sold to Eto. In paragraph 5 of the Statement of Claim, the plaintiff averred as follows: ‘5. The original owner of the land in dispute was one OMORO, the ancestor of the plaintiffs. It was he who first cleared the land in dispute of its virgin forest and farmed it, hunted wild animals in it and exercised acts of ownership over the land until his death.’

This averment was unequivocally admitted by the defendants in their respective statement of defence.” The learned trial judge found as a fact that the actual date of the transaction was not established and that the defendants had been in exclusive possession of the land since it was pledged to them by the plaintiff’s family. He nevertheless held that pledged land is redeemable however long it might have been in the pledgee’s possession, and concluded: “I am satisfied that the plaintiff has proved his case and that he is entitled to redeem Omokpa land on payment of the sum of £15 which is the present value of the three pieces of cloths for which the land was pledged to the defendants’grandfathers. I also accept the evidence of native law and custom given in support of this claim and hold as a fact that the Iyede (Isoko) customary law, farm land is never sold: it can only be granted on pledge or given out for seasonal farming and at the end of that farming season the grantee vacates the land. If it is pledged the land is redeemable when the mortgage debt is paid by the mortgagor, and the right of redemption cannot be clogged by the use to which the mortgage might have put the land or the time taken to refund the mortgage debt. A customary mortgage cannot ripen into absolute ownership and pass the legal title in the mortgaged land to the mortgagee, if the intention to create the customary mortgage can be sufficiently inferred from the conduct of the parties or the nature of the transaction entered into between them.” With regard to the evidence that the defendants grew rubber plantations on the land, the learned trial judge held that, although a customary pledge permits the pledgee exclusive possession of the pledged land, it does not confer on him such rights as are exerciseable by an absolute owner of land.

The pledgee only enjoys a licence to use the land so long as the mortgage debt remains unpaid, and any accretion to the land during the period of his occupation passes to the pledgor on redemption. After citing Elias “Land Law and Custom”, p.178: 2nd edition, and he interesting case based on it of Jimoh Amoo v. Rufai Adigun (1957) WRNLR 55, at p.56, in which the pledgor was on redemption allowed credit for the improvement made on pledged premises by the pledgee while in possession, the learned trial judge came to the following conclusion on this point:   “I also endorse the view that a mortgagee is not entitled to compensation for any economic trees or improvement he may have made on the pledged land as the inability of the morgagor to pay such compensation may deprive the mortgagor the right of redemption of the property which native law and custom allows him.”

The learned trial Judge then gave the plaintiff judgment for the recovery of possession of Omokpa land which he held to have been pledged and not sold by Esegbe to the grandfathers of the defendants and for a pe

Other Citation: (1974) LCN/1811(SC)