Michael Achilihu & Ors V. Ezekiel Anyatonwu (2013)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

The respondent/cross-appellant as plaintiff commenced the action in the then Imo State High Court Isiala Ngwa Judicial Division holden at Okpuala Ngwa (now Abia State) in Suit No. HIN/2/84 against the appellants/defendants jointly and severally wherein he claimed the following reliefs in paragraph 16 of the Amended Statement of Claim:-

“1b (i) A declaration that the land known as and called “OKPULO ALAOCHA” situate at Uratta Umuocham Village in Isiala Ngwa Local Government Area within jurisdiction of this Court is in the possession of the plaintiff who is entitled to the grant to him of a Certificate of Occupancy in respect of the said land.

(ii) N1000.00 (One Thousand Naira) damages for trespass in that in or about January, 1984 and on diverse days before and thereafter the defendants without the leave or licence of the plaintiff broke and entered the said land in concert cleared the same for purposes of farming, damaged the oil-palm plantation, cut the oil palm fronds planted on the said land by the plaintiff and destroyed one thousand cassava plants thereon.

(iii) A perpetual injunction restraining the defendants by themselves, their people, their servants and/or agents from farther interfering with the plaintiff’s rights to and interests in the said land”.

The High Court gave judgment in favour of the plaintiff on 14/10/1996. The defendants were dissatisfied by the said judgment and accordingly appealed to the Court of Appeal, Port Harcourt Division. The appeal was dismissed. Aggrieved, the appellants have further appealed to the Supreme Court in their Notice of Appeal filed on 14/2/2003 which contained four grounds of appeal. The respondent was equally dissatisfied with part of the judgment and so cross-appealed on two grounds of appeal filed on 18/2/2003. The respondent also filed Notice of Preliminary Objection. At the hearing of the appeal, learned counsel for the respondent/cross-appellant applied to abandon the preliminary objection and it was accordingly struck out together with the argument in the briefs.

In the substantive appeal the appellants formulated the following three issues for determination: –

1. Whether the land in dispute “OKPWO ALAOCHA” is the personal property of late Lazarus Ogbuevule ‘the pledgor’ and not the communal or family property of appellants (grounds 1, 3 and 4 of the appellants’ grounds of appeal)
2. Whether the appellants were in trespass when they entered the land in dispute in 1984 after redeeming it and regaining possession from the respondent during the arbitration by the Amala Ohuama Uratta in 1983 (grounds 2 and 4 of the appellants’ grounds of appeal)
3. Whether the Court of appeal was wrong in holding that there was no credible and reliable evidence of outright sale of the land in dispute to the respondent, and in therefore reversing the decision of the High Court to grant the respondent a declaration of title (grounds 1 and 2 of the cross-appeal)

The respondent/cross-appellant distilled two issues from the main appeal and a lone issue from the cross-appeal. The issues arising from the main appeal are:-

1. Was the land in dispute the personal property of Lazarus Ogbuevule and had Lazarus Ogbuevule any legal title to pass to the respondent
2. Whether the respondent established his claim on trespass and whether he could be bound by a decision of a native arbitration to which he did not submit and where he was not represented to be heard on his own version of the dispute.
3. Whether the learned Justices of the Court of Appeal were right in unanimously holding as they did that no credible witnesses authenticated the conversion of the pledge to that of an outright sale thereby deleting the words: “who is entitled to the grant to him of the Certificate of Occupancy in respect of the same land” from their final order.

In arguing the main appeal, learned counsel for the appellants referred to paragraphs 2(b), 2(c), 2(d), 9, 10, 15, 16, 23 and 24 of the statement of defence which were reproduced as paragraphs 3(b), 3(e), 3(d), 9, 10, 14, 15, 16, 24 and 25 of the amended statement of defence showing that the land in dispute was communal property which was held in trust by the pledgor but which the plaintiff failed to join issue on in the amended statement of claim. He also referred to the evidence of DW1, DW2, DW3 and DW4 and submitted that once a party refuses to meet the facts directly either by admitting them, he is taken to have admitted them. He went further to contend that even if it can be said that the respondent joined issue on the allegation that the land in dispute is the family property of the appellants, they procured preponderance of evidence in support of their claim. He submitted that the decision of the

Court of Appeal which is predicated on the doctrine of laches and acquiescence flies in the face of their own finding that the land in dispute was on pledge and the possession of the said land by Lazarus Ogbuevule was due to his being the family head. As family head he could do anything with the land short of selling it or otherwise alienating the legal title to the land. He argued that the thumbprint of Job Amalatra in Exhibit ‘A’ could not help the case of the respondent as that Exhibit was the 1968 pledge agreement which he witnessed and not the alleged 1970 and 1971 out-right sale transaction. It is argued that even if Job Amalaha was part of the 1968 pledge transaction, his actions and those of Lazarus Ogbuevule cannot be held to bind the other numerous members of Umuagbaghigba family nor can such actions convert the land in dispute from family property to the personal property of Lazarus Ogbuevule.

On issue 2, it is argued that the Court of Appeal made a perverse and unexplainable finding when it held that the trial court was right not to place reliance on Exhibit ‘E’ which the respondent seriously disputed because he was not a party to the making of the document. Learned counsel argued that Exhibit ‘C’ tendered and relied on by the respondent and preferred by the trial court is in agreement with Exhibit ‘E’ on all points except the finding by the arbitrators that the purported conditionality of 94 years clogs the appellants’ equity of redemption notwithstanding the fact that the land was on pledge to the respondent. It is learned counsel’s submission that Exhibit ‘C’ is not superior to Exhibits ‘E’ and F but of co-ordinate status and since Exhibits ‘E’ and F were earlier in time, they prevail over Exhibit ‘C’.

The arguments on issue 3 relate to the appellants’ response to the cross-appeal where the respondent was quarrelling with the finding of the court below that there was no evidence of the conversion of pledge of the disputed land to an outright sale. Learned counsel argued that if this Court finds and holds that the land in dispute is the family property of the appellants held in trust for them by the late Lazarus Ogbuevule, then all the evidence in the world that the said transaction between Lazarus Ogbuevule and the respondent transmuted from pledge to sale will serve no purpose because such sale of family property by one member acting alone will be void.

In his response learned counsel for the respondent referred to the receipt Exhibit ‘A’ which was given by the late Lazarus Ogbuevule in respect of the transaction witnessed by Job Amalaha, a principal member of the appellants’ family. It was argued that if the land in dispute was family land, Job Amalaha would have challenged the transaction and refused to sign Exhibit ‘A’. It is the contention of learned counsel that Lazarus Ogbuevule claimed the land as his personal property and issued Exhibit ‘A’ in his own name as the owner of the land in dispute and since no member of the appellants’ family challenged the transaction which was made in 1968 when the respondent entered into possession and cultivated the land openly with palm trees which he harvested during the lifetime of Lazarus Ogbuevule coupled with the subsequent sale of more portions of contiguous land in 1971, the receipt covering the 1968 transaction and that of 1971 should be read as one document. He maintained that Lazarus Ogbuevule transferred the land in dispute to the respondent and this can be inferred from the amended statement of claim and Lazarus Ogbuevule did not require the consent of anybody to alienate his land to the respondent. He submitted that both the High Court and the Court of Appeal were right in holding that the land in dispute was the personal property of Lazarus Ogbuevule and not family property since the appellants did not challenge the transactions during the lifetime of Lazarus Ogbuevule. Learned counsel submitted that these are concurrent findings of fact that should not be disturbed. It is submitted that where parties submit to customary arbitration, they cannot later reject the judgment of that customary arbitration. For this proposition learned counsel cited the following cases in support: Michael Ojibah v. Ubaka Ojibah (1991) 5 NWLR (Part 191) 296; Raphael Agu v. Christian Ikewuibe (1991) 3 NWLR (Part 180) 385. Learned counsel maintained that the dispute first went before Eze Asuoha of the community and the Eze and his cabinet gave judgment in favour of the respondent but that the respondent did not submit to the jurisdiction of the Amalas, which is an inferior tribunal to that of Eze Asuoha. Since the respondent did not attend the Amala arbitration, the decisions of that tribunal contained in Exhibit ‘E’ is not binding on him.

On the cross-appeal, learned counsel for the respondent/cross appellant referred to paragraphs 5 and 6 of the statement of claim and the evidence adduced both oral and documentary and submitted that there was abundant and sufficient, cogent, credible and unimpeached evidence to entitle the respondent to full judgment. He urged this Court to restore the final order made by the trial court which entitled the plaintiff/respondent to a grant of the certificate of occupancy in respect of the same land which was deleted by the court below. Learned counsel urged this Court to dismiss the main appeal.

The pivot of this appeal rotates on whether the disputed land is communal land or it was the personal property of late Lazarus Ogbuevule which he first pledged to the respondent but which later transmuted to an outright sale. The learned trial Judge found that late Lazarus Ogbuevule pledged the land to the respondent. He also found that since 6th of March, 1968 when the pledge took place no one challenged the right of late Lazarus Ogbuevule to pledge the land to the respondent until 1983. The Court reasoned that if the appellants (who were defendants) at the trial court were co-owners of the disputed land with Lazarus Ogbuevule, they should not have sat idly by for 15 years before laying claim to the land. The Court also found that there was no evidence that the pledge was redeemed during the life-time of the pledgor.

The decision of the learned trial Judge was affirmed by the lower court except the relief that the respondent is entitled to the grant to him of the certificate of occupancy in respect of the same land. The reason the lower court gave was that the agreement for the purchase of the land tendered as Exhibit ‘A’ showed that the seller claimed it as his land and not family land and the appellants never challenged the transaction throughout the lifetime of the seller even though one of the appellants signed Exhibit ‘A’. The lower court concluded that the failure of the appellants to do anything in the lifetime of the late Lazarus Ogbuevule and long after his death in 1971 belied their claim that the land was family property.

As a general rule, the management of family property is put in charge of the family head and he acts as a trustee of such. See: Amodu Tijani v. Secretary Southern Nigeria (1921) A.C. 399; Sunmonu v. Raphael (1927) A.C. 881 at 884; Bassey v. Cobham (1924) 5 NLR 90; Archibong v. Archibong (1947) 18 NLR 117. He should exercise his powers not for his own private advantage but for the benefit of the family and he does not enjoy absolute power in the management of family land per se. He is required to consult the other members of the family and in the case of important decisions such as sale of family land; he must obtain the consent of the principal members of the family. As the head of the family cannot transfer family land as his own exclusive personal property, any transfer of the family property by him without carrying along the principal members is void ab initio. See: D.W. Lewis & Ors. V. Bankole & Ors. (1908) 1 NLR 80.

Once it is determined that the land is on pledge, the length of time taken to redeem it or the use it has been put by the pledgee such as planting economic trees (which in this case was the planting of oil palm trees) is no longer an issue, and cannot be relied on in proof of anything.

In Okoiko & Anor v. Esedalue & Anor (1974) 3 SC 15, this Court 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 pledgee 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 Ngwa 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. A pledgee does not have to account to the pledgor for any income or natural increase he obtains from the pledged property while it is in his possession or under his control. It is also permissible and normal for a time limit to be fixed within which a pledge must be redeemed in certain divisions including Northern Ngwa (See: Chapter 34 paragraphs 434 (i), 2(c) and 439(i) of Customary Law Manual obtaining in Anambra and Imo States prepared by Dr. S.N.C. Obi, Commissioner for Law Revision, Anambra State of Nigeria 1977).

A close scrutiny of the pleadings and evidence presented by the parties reveals that the respondent staked his claim purely on Exhibit ‘A’ while the appellants maintained that the transaction was clouded in secrecy and when it became obvious that Lazarus Ogbuevule pledged the land to the respondent in 1968 which was witnessed by Job Amalaha who later succeeded Lazarus Ogbuevule as the family head, the appellants took steps to redeem the pledge by taking their case to the Ohu-ama Uratta who decided in their favour. The respondent rejected the decision of the Ohu-ama Uratta and reported the case to Eze Asuoha who found for the respondent. In defiance of this latter decision by Eze Asuoha, the appellants entered the disputed land and caused some damage to the oil palms thus prompting the respondent as plaintiff to institute Suit No. HIN/2/84 which is now before this Court as a further appeal from the Court of Appeal Port Harcourt Division.

Learned counsel has argued in his brief that even though the appellants as defendants pleaded in both the statement of defence which they later amended that the land in dispute is communal land, the respondent as plaintiff did not join issue with them nor did he file a reply to counter them.

In paragraphs 3(b) (c) (d), 9 and 10 of the Amended Statement of Defence, the defendants pleaded the following facts:

“3(b) The defendants further aver that “Okpulo Alaocha” is a communal land for the entire family of Umuagbaghigba family to which 1st, 2nd, 3rd, 4th, 8th, 10th and 11th defendants and late Lazarus Ogbuevule belong. Lazarus Ogbuevule was the oldest man and head then of Umuagbaghigba family.

And as the oldest man, he held the land in trust for the rest of the members of the family according to the custom of Umuagbaghigba family that the oldest man or head of family has OKPULO land in trust for the family plus “Ofo na Ogu” which is a symbol of authority for the family. On the death of the oldest man or head of a family the next oldest man succeeds him and enjoys all the rights, privileges his successor enjoyed. The 1st defendant is now the next oldest man and the head of Umuagbaghigba family with “Ofo na Ogu”.

(c) still in farther reply to paragraph 3 of the Amended Statement of Claim, the oldest man having any of the family land in trust cannot pledge or sell it without the consent and approval of the principal members of the family. No member of the defendants’ family was present at the time of the pledge transaction or alleged sale.

(d) In Umuagbaghigba family the following are principal members of the family in order of seniority, Lazarus Ogbuevule, Job Amalaha, Phillip Amalaha, Enoch Emereole, Ochiobi Emereole, Michael Achilihu, John Agomuo and several others. None of these people was present to witness the pledge or sale transaction between the plaintiff and Lazarus Ogbuavule Lazarus Ogbuevule until his death was a stark illiterate and did not know how to read or write, nor did he know how to sign his name.

9. The defendants aver that OKPULO ALAOCHA land is a communal family land of Umuagbaghigba Umuocham Uratta people. It was the place where the defendants’ ancestors like Agbaghigba Nwosu and many others lived and died. The name “OKPOLUO” means a place originally inhabited by a people. Agbaghigba one of the defendants’ ancestors lived and died and was buried there. Agbaghigba’s grave indicated in defendants’ Plan No. ONC/84/IM05 filed with their Amended Statement of Defence.
10. The defendants aver further that it is not the custom of Umuagbaghigbo people to sell an “OKPULO” land with their ancestors grave on it….”

The plaintiff amended his statement of claim. In neither the original statement of claim nor the amended one did he join issue with the defendants’ claim that the disputed land was communal land. He also did not file a reply to controvert the assertions made by the defendants in their Amended Statement of defence. The only averment he made concerning the ownership of the land was the fact that he was not challenged by anyone when he set up the oil palm plantation on the land after it had been granted to him by late Lazarus Ogbuevule and this is contained in paragraph 9 of the Amended Statement of claim which reads:-

“9. The grantor of the land, the said Lazarus Ogbuevule was alive when the plaintiff set up the said oil palm plantation unchallenged on the land in dispute and he, the grantor aforesaid, also saw the palms grow to maturity and the plaintiff harvest the palm fruits without let or hindrance from whomsoever. The said grantor died later in 1971”.

The defendants/appellants did not help their case when they denied knowledge of the pledge contained in Exhibit ‘A’ which was witnessed by Job Amalaha, Osondu Emorole and Innocent Ndumeole. The pledgor as well as Job Amalaha and Osondu Emorole thumb printed Exhibit ‘A’. The transaction was recorded in English and no jurat was affixed to show that the document was read over and explained to them before they appended their signature. However PW4 who also witnessed Exhibit ‘A’ said it was read over to the illiterate witnesses before they signed. The denial by Job Amalaha of his knowledge of the 1968 transaction notwithstanding there are still pieces of evidence which showed that Lazarus Ogbuevule was not the absolute owner of the disputed land.

The Plaintiff who testified as PW1 asserted positively that Lazarus Ogbuevule was not from the same family as the defendants and that he was the owner of the land because he Lazarus Ogbuevule inherited it from his (vendor’s) father in accordance with the custom of the people. Continuing with his evidence he (plaintiff) stated at page 61 lines 1-13 of the record thus:

“In 1983 the first defendant Job Amalaha and two others entered into the plantation and made paths around the plantation, Lazarus Ogbuevule died in 1971. I sued the defendants before Eze B.U. Asuoha complaining of defendants’ entry into the plantation. They were invited by Eze Asuoha to his palace. The defendants came and there were discussions. The Eze and his cabinet discussed the matter and gave judgment in my favour…….

The writer of the receipt Gabriel Nwogu witnessed the case. The judgment was reduced into writing which I submitted here”

PW2 was James Akwarandu Nwachukwu. He stated that he was the Palace Secretary of the Eze of Umuoha and he recorded the proceedings of the dispute between the plaintiff and defendants which were tendered as Exhibit ‘C’. PW3 was a member of the Eze-in-council when Exhibit ‘C’ was recorded. He testified that under Ngwa custom land can be pledged for some years. He stated under cross-examination that a pledge does not end unless it is agreed that it should end at any time the pledged amount is tendered.

PW 4, Innocent Ndumole said he came from the same Umuocham kindred as late Lazarus Ogbuevule and when the transaction took place on 3rd June, 1968 he was present. He signed Exhibit ‘A’ which was written by late Gabriel Nwaogu. He said Exhibit ‘A’ was read over to the illiterate witnesses before they thumb printed the document. He continued his evidence thus:

“About 2nd July, 1970 the same late Lazarus Ogbaevule invited me a second time, the 1968 documents were produced before me by both the plaintiff and Lazarus Ogbaevule. They asked me to write on the same paper that Lazarus Ogbuevule has received additional two pounds on the same piece of land which he sold to the plaintiff, I read it over to them in Igbo and I signed and two of them signed it as well”.

This witness admitted under cross-examination that Lazarus Ogbuevule was from Umuagbaghigba family

When cross-examined, the plaintiff said he did not know if Lazarus Ogbuevule was from Umugbai family. He also could not remember if he was the oldest man at the time of the transaction. In the next breath the plaintiff agreed that Lazarus Ogbuevule was the oldest man in his family. The admission coupled with the evidence of PW3 under cross-examination on the Ngwa custom relating to pledge has further strengthened the defendants’ claim that Lazarus Ogbuevule pledged the land as head of the Umuagbai family.

PW4 further explained that Job Amalaha only witnessed the 1968 transaction which was clearly a pledge and not the latter transaction of 1970 which was between the plaintiff on the one hand and Lazarus Ogbuevule on the other which was witnessed by his wife, Oyidia. PW4 emphatically stated that the defendants were not present during the 1970 transaction when it was reduced from pledge to absolute sale.

The plaintiff was ambivalent on the 1983 arbitration. In one breath he agreed there was an arbitration between him and the defendants over the disputed land and in the next he denied attending the arbitration. This is what he said when he was being cross-examined:

“In 1983 the entire Amala conducted an arbitration over the land in dispute between me and the defendants. The Amala did not hold the land in dispute was on pledge to me. They did not ask the defendants to redeem the land from me. I now say that I did not attend the arbitration of the Amala”.

In his judgment the learned trial Judge stated that there was no evidence before the Court on which he could hold the land in dispute was redeemed during the life time of Lazarus Ogbuevule the pledgor. He continued as follows:

“….whereas there is unanimity by the parties as to the validity of Exhibit ‘C’ except in so far as the defendants said they rejected the decision of the Eze and his cabinet, there is disagreement as to the validity of Exhibit ‘E’ to which the plaintiff denies being a party”.

While it is true that the defendants did not take steps to redeem the pledged land during the life-time of Lazarus Ogbuevule, if the evidence adduced at the trial is properly assessed it will become obvious that the plaintiff had something to hide in his denial of attending the arbitration of the Amala.

The sequence of events as revealed by both documentary and oral evidence can be said to be as follows:-

The defendants first took the dispute before the Ohu-ama Uratta who decided in their favour and it was resolved that they (defendants) should redeem the land by paying back a total of N546.00 (Five Hundred and Forty-Six Naira) to the plaintiff See Exhibit ‘E’. The defendants then deposited the sum of N546.00 (Five Hundred and Forty-Six Naira) being the total amount that was collected by Lazarus Ogbuevule and were issued with Exhibit ‘F’. The plaintiff rejected the decision of the Ohu-ama Uratta and then took the case to Eze Asuoha. Eze Asuoha inspected the disputed land and one of the observations he made contained in Exhibit ‘C’ was:

“(C) Damage observed was a path made around the oil-palm plantation by the respondents on the order or instruction of Udo-Ala-Uratto where respondents had earlier deposited redemption money for the complainant for the very oil-palm plantation area which he complainant refused”.

Mr. John Agomuo who testified a DW1 stated that he entered the land with the other defendants because they did not accept Eze Asuoha’s decision. He also tendered a survey plan which was admitted as Exhibit ‘C’ showing Okpulo Alaocha land containing the grave of Agbaghigba, the grandfather of the defendants. The plaintiff’s survey plan admitted as Exhibit ‘B’ also contained the Okpolu Alaocha land and marked parcel A which the plaintiff first acquired from Lazarus Ogbuevule.

The evidence adduced before the trial court revealed that there were two customary arbitrations before the matter went to the High Court. As I earlier found, it was the respondent who first rejected the decision of the Ohu-ama Uratta because that decision was not favourable to him. In the same vein when the appellants found that the decision of Eze Asuoha did not favour them, they equally rejected it and resorted to self help since the first decision was ignored by the respondent.

This appeal therefore turns on whether the lower courts conformed with the principles of law regulating proper and correct evaluation and appraisal of evidence. It is settled law that an appellate court should not ordinarily disturb or tamper with the findings of facts made by the trial court, particularly if such findings and conclusions reached are supported by credible evidence. This principle is premised on the fact that the duty of appraising of evidence given at a trial is pre-eminently that of the trial court that saw and heard the witnesses: Emarieru v. Ovivie (1977) 2 SC 31; Ogundulu v. Philips (1973) 1 NMLR 267 at 272; Okolo v. Uzoka (1978) 4 SC 77 at 86; Mogaji v. Odofin (1978) 4 SC 91; Nor v. Tarkaa (1998) 4 NWLR (Part 544) 130 at 139. Jimoh Garba v. Isiaka Yahaya (2007) 1 SC (Part 2) 262 at 266.

There is an exception to the above rule. The exception is where there is a misdirection by the trial court. Misdirection occurs when the issues of fact in the case for the parties or the law applicable to the issues raised are not fairly appraised or considered or misconceived or the law applicable is incorrectly applied by the trial court as a result there would be a miscarriage of justice if the decision reached is allowed to stand. See: Abisi v. Ekwealor (1993) 6 NWLR (Part 302) 643; and Nor v. Tarkaa supra. Where a trial court has drawn wrong inference from primary facts, the appellate court can reject the inference and make what it considers to be the right inference supported by evidence.

It is also trite that where a trial court has failed, as in the instant case in its duty to properly consider the evidence before it which led it to draw wrong conclusions from the evidence it accepted, the appeal court will be perfectly justified in re-evaluating and re-considering the whole evidence in order to arrive at a just decision. See: Highgrade Maritime Services Ltd. v. First Bank of Nigeria Ltd. (1991) 1 SCNJ 110; Onwuka v. Omoghi (1992) 3 SCNJ 98 at 116; Ebba v. Ogodo (1984) SCNLR 372; Okoja v. Ishola (1982) 7 SC 314; Finnih v. Imade (1992) 1 SCNJ 87; A. G. Leventis Ltd. v. Chief Christian Akpui (2007) 17 NWLR (Part 1063) 416.

The learned trial judge in the resolution of the dispute between the parties correctly held that there was a customary pledge between the plaintiff and Lazarus Ogbuevule and the purported conditionality of ninety-four years contained in Exhibit ‘A’ was to all intents and purposes an attempt to clog the equity of redemption. In considering the crucial issue whether the land exclusively belonged to Lazarus Ogbuevule or it was communal land over which he superintended as head of the family, he failed to consider the issue but invoked the doctrine of laches and acquiescence to hold that the defendants were not co-owners of the land with Lazarus Ogbuevule and queried why they sat idly by for fifteen years from 1968 to 1983 before they could challenge the right or act of the pledgee. It was this same logic that made the trial Judge to conclude that Job Amalaha was not a co-owner of the land with Lazarus Ogbuevule. The lower court endorsed the finding that the transaction was a pledge but fell into the same error of applying the principle of laches and delay to defeat the appellants’ claim to the equity of redemption.

Both the trial Judge and the court below failed to properly appraise the facts and incorrectly applied the law. A proper appraisal of the facts would have led to the inevitable conclusion that the land in dispute was communal land and Lazarus Ogbuevule dealt with it in his capacity as head of the family. Since there is a concurrent finding by the two lower courts that the transaction entered into by Lazarus Ogbuevule and the respondent was a pledge, the equity of redemption cannot be defeated by laches and acquiescence. The purported claim by Lazarus Ogbuevule in Exhibit ‘A’ that the land was his personal property which he transferred to the respondent without carrying along the principal members of the Ogbaghigba family rendered the transaction void ab initio. The appellants are entitled to redeem the disputed land by returning the total sum of N546.00 (Five Hundred and Forty-Six Naira) to the respondent and no more. The respondent is not entitled to compensation for the oil-palm plantation he planted on the land.

I therefore find that there is merit in this appeal and it is hereby allowed. I set aside the decision of the lower court that the appellants are not co-owners of the disputed land known as “OKPULO ALAOCHA”.

I also find that there is no merit in the cross-appeal and I accordingly dismiss it. I assess costs of N100, 000.00 (One Hundred Thousand Naira) in favour of the appellants against the respondent.

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SC.131/2003