Iheaguta U. Nwagwu & Anor. V Ohazurike Okonkwo & Ors. (1987) LLJR-SC

Iheaguta U. Nwagwu & Anor. V Ohazurike Okonkwo & Ors. (1987)

LawGlobal-Hub Lead Judgment Report

KAZEEM, J.S.C

In this appeal, the Appellants who were the Plaintiffs at the trial, sued the Respondents as Defendants for the following claims:-

“(a) Declaration of title to all that piece or parcel of land known as and called OKPULO NWAGWU verged green in the plaintiffs plan No. E/GA1005/74 filed with this statement of claim and situate at Otulu Ahiara in Mbaise in the Owerri Judicial Division with annual value of N10.

(b) Order of the court that defendants accept the redemption money of N10. (ten naira) from the plaintiffs in respect of the said Okpulo Nwagwu.

(c) Order of the court giving possession of the said Okpulo Nwagwu to the plaintiffs.

(d) Perpetual injunction restraining the defendants, their agents, servants and/ or workmen from further entry upon the said piece of land.”

Judging from the pleadings and the evidence adduced on both sides the whole matter appears to have arisen from an incident which occurred over a Century ago before the advent of the Whiteman in Mbaise. Whereas the Appellants represent the family of Umunwagwu Otulu Ahiara in Mbaise within the present Owerri Judicial Division of Imo State, the Respondents, are the descendants of one Kpagha. According to the Appellants the story goes thus:-

It happened that there was a meeting between the families of Umunwagwu, Umuokoroafoerim and Umuoduehi. As the meeting was in progress, one person from Aguneze in Onicha Mbaise passed through the area without greeting the members of the three kind reds holding the meeting. Consequently, one Kpagha ordered that the person be flogged and beaten. That was done; and as a result, the person died from the injuries sustained thereby. His people therefore demanded an atonement. Kpagha was a slave dealer. He brought one of his slaves which the three kindreds involved in the murder purchased from him in the sum of “Iri Leri ato” now valued at N30.00 (thirty Naira). Each kindred therefore had to refund N10.00 (ten Naira) to Kpagha. Kpagha hailed from the kindred of the Defendants.

The slave was given as the atonement.

The kindred of Uwunwagwu (the Appellants) and the kindred of Umuoduehi did not have their N10.00 each to refund to Kpagha. In lieu of the amount, they pledged their respective portions of land to Kpagha. The land in dispute is the one allegedly pledged to Kpagha by the kindred of the Appellants.

But according to the Respondents, the story was not much different except that the land in dispute was said to have been given to Kpagha the Respondents’ ancestors, by the Appellants’ ancestors as absolute compensation in consideration of Kpagha’s relation, one Akasike who was surrendered to the people of Onicha Mbaise in atonement for their relation who was beaten to death by the Umuaghara Community comprising the three kindreds of Umunwagwu, Umuokoroafoerim and Umuoduehi. The present equivalent amount of what was said to be refundable to Kpagha at that time is a sum of N30. It does happen therefore that whereas the land in dispute is the one allegedly pledged to Kpagha by the Appellants in lieu of the refund of N10 to him and now being claimed as redeemable, the land given to Kpagha by the people of Umuoduehi in lieu of their own refund of N10 had not yet been claimed and it was said to be awaiting the result of this appeal. The Appellants’ contention is that the land is redeemable, being a pledge of land under customary law. But the Respondents’ case is that the land was given to Kpagha as an atonement for murder and is therefore irredeemable.

The Appellants in 1974, tendered money to the head of the Respondents’ family for the redemption of the land; but it was refused. The matter was then referred to a cultural group called the Aladinma Arbitrators for settlement when the Respondents demanded that a person be returned to them for the, one their ancestors surrendered to the Aguneze people for their own person who was murdered. The Aladinma Group found themselves unable to decide such an issue. Consequently, the Appellants took this action. .

At the conclusion of the trial, the learned trial judge found after reviewing the evidence on both sides that:-

(i) the Appellants failed to prove the identity of the land to which their claim related.

(ii) the traditional evidence adduced by both parties in proof of their version of how the land came to be in the possession of the Respondents were inadequate, not cogent and inconclusive.

(iii) the Respondents’ story that the person surrendered by Kpagha as an atonement for the murdered person from Aguneze in Onicha Mbaise, was a relation of the Respondents called Akasike. In short, the learned trial judge believed that the transaction was not a pledge of the land per se for a loan of money, but it was a grant of land in lieu of a person surrendered as an atonement for the one murdered.

(iv) since the Respondents’ family had been in undisturbed possession of the land in dispute for a long period of time, it would be inequitable to dispossess them of it. Consequently the claim was dismissed.

An appeal to the Court of Appeal Enugu, against that decision was also dismissed; and the Court also found that:-

(a) the identity of the land was not proved by the Appellants;

(b) having been in possession of the land for over a long period without interference, the Respondents could no longer be dispossessed of the land;

(c) there was no pledge of land per se; but what was given was an atonement for murder.

In the lead judgment, the court observed:- “In any case parties agreed that a human being was given for the pledge before the advent of the White-man in Ahiara Community. It now seems impossible for the pledge to be redeemed.”

Those findings have been challenged in a further appeal to this court on several grounds; and even though arguments on many of them were contained in the Appellants’ brief, they were not however pursued during the hearing of the appeal and they are therefore deemed to have been abandoned. But the emphasis throughout was on whether or not what took place between the parties was a pledge of land either for a loan of money, or for a surrender of a human being as an atonement for another person murdered by the Appellants’ ancestors. The Respondents never at any time disputed the identity of the land nor did they deny that it originally belonged to the ancestors of the Appellants. What was in dispute was and still is the circumstances by which the Respondents came to be in possession of the land for such a long period of time; and whether the land is now redeemable. Hence in my view, the issues of the identity of the land, and of long and undisturbed possession, as found by the lower courts, are quite irrelevant to the proper and just determination of this appeal.

The question for determination in this appeal therefore seems to be:-

Was the transaction between the parties a pledge of land per se to the Respondents’ ancestor, Kpagha for a return of a loan of money Or was the said land granted to Kpagha as compensation for the human being which he gave to the people of Aguneze as atonement for the murder of their own son

It is trite law that if the transaction was a pledge of land per se in return for a loan of money, the land is redeemable however long it may be in the possession of the pledgee.

In Okoiko & Anor. v. Esedalue & Anor. (1974) 1 All N.L.R. (Part 1) 452, The Plaintiffs sued the defendants in Ughelli High Court, claiming redemption and recovery of possession of Omokpa land, and an injunction to restrain defendants from interfering with Plaintiffs’ possession of Omokpa land. Plaintiff’s grandfather had pledged the land to defendant’s grandfathers for three pieces of cloth worth . The Defendants and their ancestors had planted economic crops on the land, after taking possession.

Several years later, the Plaintiffs’ family claimed to redeem the land but were asked by defendants to pay 1,000pounds which plaintiffs refused. On a second approach, plaintiffs were asked to pay 600pounds which they still refused. On their third approach to redeem the land, the defendants claimed that the transaction was a sale to their ancestors not a pledge.

Plaintiff proved at the trial that the transaction was a pledge under lyede Customary law which does not recognise any sale of land, but defendants did not testify nor cross-examine Plaintiffs witnesses; because their counsel did not attend the trial after his request for further adjournment on the date fixed for the trial was refused by trial judge. On an appeal to the Supreme Court, the Court observed on the pledgor’s right of redemption at pages 465 and 466 as follows:- .

“In the present case, the loan took the form of three pieces of cloths worth 15pounds (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.

One 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.”

Also see Elias on “Nigerian Land Law and Custom” 2nd Edition at pages 179 to 180 and Agbo Kofi v. Addo Kofi (1933) 1 WACA 284. However, there are in this appeal concurrent findings of facts by the two courts below that the land in dispute was given by the Appellants in return for Akasike a relation of Kpagha – an ancestor of the Respondents. He was surrendered to the Aguneze people of Onicha Mbaise as an atonement for the murder of their son by the ancestors of the Appellants.

It is also to be noted that the Umuoduehi people who equally “pledged” their own land to Kpagha for the same purpose have not yet claimed for the redemption of their own land; and they seem to be awaiting the result of this appeal. Moreover, it was generally agreed by the parties that the prevailing customary law in Mbaise at that material time, was that if a member of one community was murdered by another, that death could be atoned by giving another person to the offended community.

It was never canvassed in the courts below, nor even in this court that, that custom was repugnant to natural justice, equity and good conscience nor was it suggested that it was barbaric or against public policy so as to render it invalid. What was done by Kpagha, the ancestor of the Respondent was accepted as being in accordance with that custom; and he gave his relation – Akasike – to the Aguneze people to atone for the murder of their son.

That much was the concurrent finding of fact by the lower courts. It was also a concurrent finding that it was partly to compensate Kpagha for doing so that the ancestors of the Appellants gave the land in dispute to him. Those concurrent findings of fact had not been challenged in this court nor can they in my view be successfully challenged.

It is trite law that two concurrent findings of fact in favour of a party should not be disturbed unless there is some miscarriage of justice, or violation of some principles of law or procedure: See Mogo Chinwendu v. Nwanegbo Mbamali (1980) 3 S.C. 31 Ukpe Ibodo & Ors. v. Enarofia & Ors (1980) 5 -7 S.C. 42 at p.55; Enang v Adu (1981) 11-12 S.C. 25 at p. 42; Okagbue v. Romaine (1982) 5 S.C. 133 at pages 170 -171; Lokori v. Olojo (1983) 8 S.C. 61 at pages 68 – 73; Olomu v. Ajao (1983) 9 S.C. at p.53.

It may be asked whether the said transaction was a pledge of land per se to make it now redeemable on payment of N10. Having regard to the proven facts and decided authorities,I am firmly of the view that what took place between Kpagha and the Appellants’ ancestors was not a pledge of land in the traditional sense and it is not now redeemable on payment of money.

Let us look at the matter from another angle. Will it even be in the interest of justice to allow the Appellants to redeem the said land from the Respondents who had been in undisturbed possession of it for such a long time if it is not a pledge The facts of this case do not seem to justify that course.

It is to be noted that the ancestors of the Appellants were once involved in the unlawful killing of a native of Aguneze. Many years ago the tradition of the people at that time required that another person should be given up by them to atone for the murder. But the Appellants’ ancestors could not provide that person. Kpagha then came to their aid and gave to the Aguneze people, his own relation called Akasike.

If he had not done so, it can be imagined the confusion and the problem that would have been caused. It was partly therefore to compensate Kpagha for being so magnanimous that the land in dispute was given to him without any pre-condition. The Respondents have since been in undisturbed possession of the said land for almost a century. But the Appellants have now sued for its redemption on payment of a sum of N10, on the ground that it was a pledge which is redeemable under Customary law. It may then be asked:

What amount of money will now be adequate enough to compensate the Respondents for Akasike whom Kpagha gave to the Aguneze people to atone for the murder of their son Or are the appellants in a position now to give another person to respondents in place of Akasike if such an order can be so made It seems to me impossible to do these now. Hence, in my view it will be tantamount to an act of injustice to order a redemption of the land in dispute, and] will not succumb to it. Justice must not only be done to the Respondents, but it must manifestly be seen to be done to them.

Having regard to all the circumstances, the appeal fails and I will therefore dismiss it and affirm the decision of the Court of Appeal with N300.00 costs to the Respondents.

SC.133/1985