Okpowagha & Anor Vs Ewhedima (1970)

LawGlobal-Hub Lead Judgment Report

UDOMA, J.S.C.

In the High Court of the Mid-Western State, Warri, before Obaseki, J. the respondent originally in Suit No. W/14/65 claimed against the appellants:
“Recovery of possession of a portion of Odhimi’s family land known as Eteigo situate at Eteigo bush in Olomoro in the Warri Judicial Division which was pledged under customary law by late Ewhedoma Odhimi to late Okpowagha for a loan of 6pounds (six pounds)”.

The claim was later amended to read:
“The plaintiff’s claim against the defendants jointly and severally is for an order of the court allowing plaintiff to redeem on payment of 6pounds by the plaintiff to the defendants that portion of Odhimi family land known and called Eteigo in Olomoro within the jurisdiction of this court, which the plaintiff’s father (Ewhedoma) pledged to the defendants’ father (Okpowagha) for a some years ago and for the recovery of possession of the said land under customary law”.

In his statement of claim, the plaintiff alleged that he and the defendants are natives of Olomoro in Isoko; that the land in dispute Eteigo, property of Odhimi family, situate in Olomoro was pledged by Ewhedoma as head of the family to Okpowagha, the father of the defendants as security for a loan of 6pounds granted by Okpowagha to Ewhedoma on terms that no interest be payable but that Okpowagha should enter into, take possession and make use of the land so pledged until the debt of 6pounds was refunded when the land would be redeemed; that accordingly Okpowagha entered into, took possession and made use of the land aforesaid; the plaintiff’s offer to refund the 6pounds and redeem the land so pledged was rebuffed by the defendants who demanded a larger sum of money than that lent to the plaintiff’s father; and that the plaintiff refused to accede to the defendant’s demand and therefore brought the action to compel the defendants to accept the capital sum of 6pounds and give to him vacant possession of the land in dispute.

The defendants, in their amended statement of defence, admitted that they and the plaintiff are natives of Olomoro in Isoko but did not admit that the land, the subject matter of the suit, was pledged to their father. They pleaded that the land in dispute was sold outright by the plaintiff’s father, Ewhedoma, over 40 years ago to Okpowagha, their own father.

They contended that “as an action for the redemption of pledged land is one decreeing possession of the said land, plaintiff cannot succeed without filing a countersigned survey plan to which a court judgement can be tied”. There was, however, no averment that trees or crops were planted on the land, nor was there any allegation that according to Olomoro custom, land pledged as security for a loan was not redeemable.

Thus the real dispute between the parties, and indeed, the only question for determination on which issues were joined on the pleadings was as to whether the transaction concerning the land in dispute which took place between the plaintiff’s father and the defendants’ father was a pledge or a sale.

After due hearing of relevant evidence, the learned trial judge, after a review of the facts, accepted the evidence of the plaintiff and his witnesses, entered judgement for die plaintiff and ordered the plaintiff to refund to the defendants the sum of 6pounds on or before 7th August, 1967 and the defendants to deliver up to the plaintiff, possession of the land in dispute on or before 31st July, 1968.

The evidence of the defendants that the land was sold to their father was rejected as being palpably false.

The defendants have now appealed against the judgement on two grounds, which were argued together and are as follows:
“(1) The judgement is wrong in law in that
(i) there being no evidence before the learned trial judge of the incidents of a pledge of farmland applicable to Isoko Division and
(ii) learned counsel for plaintiff not urging or establishing that such facts of native law and custom could be noticed judicially, the learned trial judge misdirected himself in law in entering judgement for the plaintiff instead of dismissing the claim, the plaintiff not having discharged the burden of proving his right to the reliefs sought.

(2) The learned trial judge misdirected himself when he stated at p. 38 line 36 et seq of the record:
‘This claim is in respect of a piece of land pledged under customary law. The pleadings do not join issue on whether a land pledged is redeemable under customary law or not.

The only issue raised as I have indicated is as to the nature of the transaction, whether it was a sale or a pledge. ‘
and at page 40 line 34 et seq:
“There being a right under customary law to redeem the land pledged and obtain possession of the land, the onus is on the defendants to establish by evidence that he has right to remain on the land after redemption and reap his crops.
The planting of permanent crops on the land pledged and lapse of time are no bars to the recovery of land which has been pledged. (see Agbo Kofi v. Kofi Addo [1933] 1 W.A.C.A. 284; Leragun and 4 others v. Funlayo 1955-56 W.R.N.L.R. 167. In Leragun’s case the head note reads:

The plaintiffs claimed recovery of land which defendant admitted had originally been pledged to her for the sum of ‘a312 l0s 0d and later sold to her for an additional ‘a38. There was no evidence of the sale other than that of the defendant. The plaintiff having been granted possession of the land by the Native Court and Egbe Native Court of Appeal the defendant appealed. The court (Irwin, J.) held: (a) That the planting of permanent crops is not conclusive evidence of ownership. (b) Lapse of time is no bar to right of redemption.
Particulars:
(a) The learned trial judge overlooked the fact that
(i) a defendant is not obliged to raise in his statement of defence a point of law and is entitled to rely on it in his final address as the defendants did with regard to the question of absence of proof of the relevant customary law relied upon by the plaintiff;
(ii) by virtue of s. 14 (i), (ii) and (iii) of the Evidence act, the relevant customary law was raised on the pleadings;
(iii) the burden of establishing the applicable customary law lay on the plaintiff who failed to discharge it.

(b) The learned trial judge imported into the case principles of the customary law of Ghana and Yorubaland, contrary to s. 14 (iii) of the Evidence Act.”