Agada Okoiko & Anor V. Ozo Esedalue & Anor. (1974) LLJR-SC

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

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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.

  1. Recovery of possession of the said Omokpa land from the defendants.
  2. 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 OteriIyede and that he was duly authorised by that family to proceed with his claim against the defendants and their respective families. Agboro Akoro (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. They 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 hird 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 a 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 a pledge 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 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 concluded 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 relinquish their title to or interest in Omokpa land. I believe the evidence of the plaintiff and that of Agboro Okoro (P.W.A) 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 avernment was unequivocally admitted by the defendants in their respective statements 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 defendant’s 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 mortgagee 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 pennits the pledgee exclusive possession of the pledged land, it does no 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 the interesting cased based on it of Jimoh Amoo v. Rufai Adigun (1957) W.R.N.L.R. 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 mortgagor 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 perpetual injunction against the defendants from using the land or interfering with the plaintiff’s occupation and possession of it. It was also held that the plaintiff must pay into the Registry of the Court the sum of 15 (:N30) as refund of the mortgage debt due to the defendants for the pledged land. The learned trial judge also ordered that the defendants must be given an opportunity to harvest their crops on the land and remove their property, structures, farm implements and other articles from the pledged land. Finally, it was held that the plaintiff must pay costs to the 1st defendant who had admitted plaintiff’s claim before the action was instituted against all the defendants.

It is against this judgment that the present appeal has been brought on the following five grounds:

“1. The decision is against the weight of evidence.

  1. The learned trial judge erred in law in refusing the 2nd and 3rd defendants/appellants’ adjournment to enable the counsel of their choice to defend them.
  2. There was a miscarriage of justice when the learned trial judge refused the 2nd and 3rd defendants/appellants adjournment to enable the counsel of their choice to defend them, despite the application of the 2nd and 3rd defendants/appellants for the case to be adjourned even if they were to pay substantial costs.
  3. The costs awarded against the 2nd and 3rd defendants/appellants is, in any case, excessive in the circumstances.
  4. Having regard to the circumstances of the case, the learned trial judge had by his refusal to postpone the hearing of the case failed to exercise judicially and/or properly his discretionary power with respect to postponement or adjournment of hearing. .


(a) He blew almost out of proportion the absence of the appellants’ counsel who had proceeded on holiday overseas in the interest of his health, temper and efficiency and regarded such absence as not showing ‘any respect for this court.

(b) He refused the adjournment sought by the appellants before the date fixed for hearing and without in any way ascenaining the attitude of the respondents and the counsel on the other side towards the appellants’ application.

(c) The instant postponement was the first ever to be asked for in the case and there was no evidence whatever that the respondents would have been prejudiced by the case being postponed on the usual terms.

(d) He failed to appreciate that his hearing and determination of the case in the circumstances had the effect of defeating and destroying altogether the rights of the appellants.”

Dr. Odje, learned counsel for the appellants, said in arguing his appeal that all his grounds of appeal revolved around two main questions, namely: (1) whether the learned trial judge exercised judicially and/or properly his undoubted discretion to accede to or reject the application of the defendants/appellants for an adjournment of the hearing of the case on the date fixed for it, and (2) whether, on the merits, his decision can be supponed having regard to the grounds of appeal. What had happened as regards the first question was that the case came up before the Ughelli High Court on February 18, 1970 when it was adjourned to April 22, 1970 for mention. On the latter date, the case was in fact mentioned but it was further adjourned to June 19, 1970 for mention, and it was then fixed for hearing on September 8, 9, 10 and 11, 1970. A representative of Dr. Odje was present and he agreed to these dates. Dr. Odje said that he later realised that he would not be able to go on and, on September 1, 1970, applied to the Court through the Registrar for an adjournment.

The learned trial judge directed that the Registrar reply in the negative before the date fixed for hearing. When the case came up for hearing on September 8, 1970 as already fixed, the judge proceeded with the trial. In arguing grounds 3 and 4, Dr. Odje submitted that he should not have done so as, according to Solanke v. Ajibola (1969) 1 N.M.L.R. 253, at pp. 255-8, the reasons given by the judge for proceeding with the case were not good enough. It may be recalled that the learned trial judge offered the following explanation:

“I refused to adjourn the case on the application by Dr. Odje to do so on the ground that when the parties appeared in coun on Friday, 19th June, 1970, Dr. Odje was represented by Chief J.O. Ibini who was a counsel in his Chambers and the dates for hearing which were then fixed for September 8th, 9th, 10th and 11th, 1970, were accepted by both counsel. It was a definite fixture and an adjournment would have meant that there was nothing for me to do on those days. Secondly, the letter by Dr. Odje to the Registrar of this Court asking for an adjournment came at a time when the case was set down to proceed and it was therefore not possible for any alternative ammgement to be made. If in spite of the fact that the fixture in this case was made with his approval, presumably when he had no other cases put down for those dates in other couns, it would in my opinion be improper to refuse to take this one, when it was not shown that those other counsel in his chambers were engaged in the Supreme Court, Lagos. It was for these reasons I decided to go on with the case and the refusal of the 2nd and 3rd defendants to brief other counsel in spite of my explanation to them was unfonunate and utterly unreasonable. ”

It is also imponant to quote here the learned trial judge’s answer to the argument of learned counsel for the appellants under ground 2 that the appellants were entitled to be defended by counsel of their choice:

“They insisted that except Dr. Odje came to Court for them, they would not retain the services of any other counsel and would also not take pan in the proceedings. I explained to 2nd and 3rd defendants in clear terms that it would not be to their advantage to insist on those conditions, but, as they would not be convinced, I decided to proceed with the case and hear evidence from the plaintiff and his witnesses and the 1st defendant as previously arranged.”

It is clear that Dr. Odje’s further reference to Odusote v. Odusote, S.C.318 delivered by this Court on June 7, 1971, still unreponed, as authority for the proposition that the judge should not refuse an adjournment if that would defeat the course of justice making one party lose his rights, would not seem to us to be sound. As to the argument that a defendant was entitled to be defended by a lawyer of his choice, we observe that the learned trial judge did not refuse a particular lawyer from appearing for the defendants, but that Dr. Odje himself as the only lawyer retained by them, made himself unavailable. We also think that the learned trial judge was clearly right in holding that it was only an inevitable appearance before the Supreme Court of Nigeria that should excuse counsel from appearance before any High Court in the Federation and, even then, only on proper application to and approval by the relevant authorities. Dr. Odje again referred to Evans v. Bartlam (1937) 2 All E.R. 646, at pp. 645-5 in suppon of his contention that this Court could and should review the learned trial judge’s exercise of his discretion in disallowing the final adjournment for which he had asked. We drew attention to the following passage attributed to Atkin, L.J., at p. 655 ibid:

“I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does do so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the patties, then the court has power to review such an order, and it is, to my mind, its duty to do so.”

We consider that, on a fair and reasonable view of the circumstances of this particular case, we should not interfere with the learned trial judge’s exercise of his discretion in proceeding with the case as he did. We think that learned counsel’s request for an adjournment was as unjustified as it was unreasonable.

Turning to his Ground 1 that the judgment was against the weight of evidence, Dr. Odje contended that the respondents had failed to establish by evidence that the original transaction was a pledge and not a sale. He submitted that the corroborative evidence of the 1st defendant should have been rejected in that he had written a letter in 1961 that it was a sale, but had later changed his mind and said that it was a pledge. The answer seems to lie in the 1st defendant’s explanation that he at first went along with the defendants’ allegation that it was a sale but that when some of his brothers died as a result of having sworn a false oath on their family juju, he decided to return to truth in order to escape the wrath of his ancestors. In any case the 1st defendant testified as follows:

“Some years ago, say about 1961, i wrote to the 2nd defendant stating that Omokpa land was sold and not pledged to our fathers. I wrote the letter when I was at Akure undergoing training. This letter was written on arrangement by our three families; I know what I wrote in that letter to be false, and I do not stand by that letter any longer.”

But, even if we were to hold that the evidence of the 1st defendant should be rejected, we think that the case for the plaintiff would still be sufficient to entitled him to judgment since the defendants failed to cross-examine the plaintiff’s witnesses or to offer any contrary evidence, although the defendants were present in court throughout the proceedings. All the averments of the plaintiff, supported by evidence in court, had remained uncontradicted by the defendants. We are, therefore, of the view that the transaction was a pledge and that all the incidents of customary pledge had been fully established by the plaintiff.

Mr. Tobe Dafe, learned counsel for the respondents, in a brief reply, pointed out that the appellants could not now complain about the refusal of the learned trial judge to grant them an adjournment because, on the last day of the trial (September 11, 1970), the 2nd and the 3rd defendants who had been in court on September 8, 9 and 10, were absent on September 11 and the learned trial judge still held his hand and adjourned further proceedings till September 21, 1970, to afford the defendants a final opportunity, if they so desired, to come and defend the action before the case was closed for judgment.

It was when the defendants still failed to turn up ten days later that the learned trial judge adjourned for judgment which he thereafter delivered on September 25, 1970. Learned counsel submitted that the learned trial judge had exercised his discretion very reasonably and given the defendants every opportunity to defend themselves, and that there was no evidence of bias or any other fault on the part of the judge. He referred us to Maxwell v. Keun (1928) 1 K.B. 645, at pp. 649 and 651, and invited us to hold that this is a case in which we should not interfere with the judge’s exercise of his discretion in refusing an adjournment.

In reply to the argument of learned counsel for the appellants with regard to the merits of the case, Mr. Dafe pointed out that the plaintiff and his witnesses as well as the 1st defendant gave full and uncontradicted evidence that the original transaction was a customary pledge and not a sale. The defendants did not go beyond their mere averment in the Statement of Defence that it was a sale and not a pledge, for they gave no evidence and did not cross-examine the plaintiff and his witnesses on the point. The 2nd and the 3rd defendants led no evidence at all to discharge the onus on them that the original transaction was a sale which gave them absolute title to the land or that, contrary to the evidence of the plaintiff and his witnesses, the sale of land was known to Iyede customary law: Ochonma v. Unosi (1965) N.M.L.R. 321, at p. 323. Similarly, in Leragun & Ors v. Funlayo (1956) W.R.N.L.R. 167 where the plaintiffs claimed recovery of land which the defendant admitted had originally been pledged to her for the sum of 1210s and later sold to hear for an additional sum of 8, but there was no evidence produced by the defendant as to the alleged sale, it was held that the mere planting of economic crops in the pledged land is not by itself conclusive as to the defendant’s ownership, and also that lapse of time (in this case over thirty years) is not a bar to recovery of a pledged land.

Now, this appeal raises in an interesting form an age-old question of customary pledge of land, namely, whether the use to which pledged land has been put by the pledgee in occupation is in any way circumscribed and also whether any improvement carried out by the pledgee while in possession can be compensated for in some way by the pledgor; underlying the two inter-related questions is, of course, the basic issue as to whether the use made by the pledgee of the land should be regarded as interest on the capital originally borrowed by the pledgor. One invariable rule of customary pledge that can be gathered from the reponed cases is that the pledgee always goes into possession and has the right to put the land to some productive use.

To that extent, such use is a kind of interest due on the amount of the loan. They very nature of a customary pledge, which is perpetually redeemable, is that the pledgee has only a temporary occupation licence and that he must yield up the pledged land as far as possible in the form he took it on originally. This means that he must put it to only ordinary use so that its return to the pledgee should be unencumbered in any way. The planting of economic crops like cocoa or rubber can only be undertaken by the pledgee in possession at his own risk, unless of course there is express contract permitting him to do so. If the land pledged is already planted by the pledgor with economic trees, there may be a presumption in favour of the pledgee using the land as such until redemption of the pledge. The whole question was first raised in what is probably the fIrst case on customary pledge heard by our coons which took place in 1889.

In Kuahen v. Avose, where there was a pledge of palm trees, Smalman Smith, C.J., held that the amount of the produce which came to about 12 per annum while the prevailing customary tribute was 9 per annum must be taken into account so that the capital borrowed could be reduced each year by the excess of 3 per year. The learned Chief Justice regarded as “unjust and inequitable and opposed to natural justice” a custom according to which, as alleged by the plaintiff, the pledgee was entitled to “farm the tress and hold them until the original debt be paid, giving and rendering no account of the value of the produce, which in this case amounted to more each year than the amount paid as tribute”. The matter was taken a step further in Jimoh Amoo v. Rufayi Adigun (1957) W.R.N.R. 55 in which the plaintiff’s claim for an account of rents collected by the defendant pledgee while in possession of the plaintiff’s shop in respect of a loan was granted.

It seems to follow from these two cases that the court will in all proper cases take into consideration the nature and character of the use to which the pledgee has put the land while in possession, so that any unjustified benefits thereby derived by the pledgee may be brought into the final account when the pledge is ultimately being redeemed. No longer, it would seem, can the pledgee in possession take all the benefits from his commercial exploitation of the land and still get back his original capital; much less. can he claim against the pledgor any benefit arising from his having planted the land with economic crops like cocoa or rubber, or from his having carried out improvements on the pledged premises.

In the present case, the loan took the form of three pieces of cloths worth 15 (N30) handed over to the grandfather of the pledgor by the grandfather of the pledgee. The debt was, therefore, not incurred by the pledgee lending money to the pledgor but by being given three pieces of cloths. The general incidents of tenure of pledged land, however, attach to it so as to make it perpetually redeemable. We think that the planting of the land with economic crops like rubber must be regarded as necessarily incidental to the use of the land since there is no evidence that it was forbidden under the terms of the original pledge; but it is also clear, nevertheless, that the pledgee has no right to any compensation or credit for the plantations, which accrue to the pledged land on the principle of quicquid plantatur solo, solo cedit. It was, therefore, as an act of grace rather than as a matter of legal right, that the learned trial judge ordered the plaintiff/appellant to permit the respondents to reap the next harvest before returning the pledged land to the appellant. The law is that the pledgee should quit the land as from the date of the judgment in favour of the pledgor.

On other important point is that the pledgor’s right of redemption cannot be clogged in any way by the pledgee, such for instance as by demanding any amount in excess of the sum for which the land was originally pledged, or by planting the pledged land heavily with economic trees, or by using other subterfuges to delay or postpone the pledgor’s or his successor’s right to redeem; nor is lapse of time a bar to the exercise of the right of redemption, for customary pledges of land are perpetually redeemable.

In the result, this appeal fails and it is hereby dismissed. The judgment of Ogbobine, J., in Suit No. UHC/38/66 delivered on September 25, 1970, in the Ughelli High Court is affumed, together with the order as to costs payable to the 1st defendant by the plaintiffs and the cost payable by both the 2nd and the 3rd defendants to the plaintiff. We award costs in this court assessed at N83 to the respondents in this appeal. This shall be the judgment of the Court.


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