Okpowagha & Anor Vs Ewhedima (1970)
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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  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.
(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.”
In arguing these grounds of appeal, Mr Lardner, counsel for the defendants, submitted that since the plaintiff had alleged in his pleading that the land was pledged, the onus was upon him to establish by evidence that under the custom of Olomoro in Isoko any land so pledged was redeemable and the circumstances of the existence of such right of redemption, and that there being no evidence at all of the existence of a pledge involving land as security for a loan under Olomoro custom and the circumstances which would entitle a pledge or to redeem such pledged land, the learned trial judge was wrong in law to enter judgement for the plaintiff for the vacant possession of the land in dispute, especially as there were growing crops on the said land.
Counsel also referred to Section 14 of the Evidence Act and submitted that, although there was undoubtedly evidence that the land in dispute was pledged, the existence under Olomoro custom of the right in perpetuity to redeem land pledged as security for a loan could not be the subject of judicial notice in terms of the provisions of Section 14 of the Act and therefore plaintiff’s claim failed.
Counsel then cited and relied upon the decisions of this Court in John Apoesho and another v. Chief Awodiya  1 All NLR. 48, Chief G. A. Taiwo v. Semisemiyu Dosunmu and another  1 All N.L.R. p. 399 and Missri v. Bank of West Africa, Sc. 301/1966 delivered on 30th June, 1967 (unreported) and contended that the learned trial judge misdirected himself in law by basing his judgement on the decisions in Agbo Kofi v. Addo Kofi  1 W.A.C.A. 284 and Leragun and others v. Funlayo [1955-56] W.R.N.L.R. 167, when there was no evidence that the custom relating to the redemption of pledged land was the same in Olomoro, Mid-Western State as that obtaining in Ghana and the Western State.
We turn now to deal with these submissions and start off by considering the provisions of Section 14 of the Evidence Act, which are in the following terms:
“(14)(1) A custom may be adopted as part of the law governing a particular set of circumstances if it can be noticed judicially or can be proved to exist by evidence. The burden of proving a custom shall lie upon the person alleging its existence.
(2) A custom may be judicially noticed by the court if it has been acted upon by a court of superior or co-ordinate jurisdiction in the same area to an extent which justifies the court asked to apply it in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration.
(3) Where a custom cannot be established as one judicially noticed it may be established and adopted as part of the law governing particular circumstances by calling evidence to show that persons or the class of persons concerned in the particular area regard the alleged custom as binding upon them: Provided that in case of any custom relied upon in any judicial proceeding it shall not be enforced as law if it is contrary to public policy and is not in accordance with natural justice, equity and good conscience.”
It is clear that Section 14 of the Evidence Act as set out above lays down the mode of ascertaining the custom appertaining to a particular set of circumstances in a particular area of this country. Accordingly a custom may be established as judicially noticed or evidence may be called to establish what a custom is and the existence of such a custom and to show that persons or a class of persons concerned in the particular area regard the custom as binding upon them.
Thus the existence or non-existence of a custom in relation to any particular matter or transaction under any given area of the country is a question of fact which can be established either by evidence or as one judicially noticed. Where, therefore, there is no direct evidence of a custom or where such evidence as exists is a judicial decision not referrable to the particular area concerned, this Court would refuse to accord cognisance or give effect to or enforce such custom or clothe it with the force of law. See John Apoesho and another v. Chief Awodiya and Chief Taiwo v. Semisemiyu Dosunmu and another (Supra).
While it is correct that there was no evidence that the custom relating to the right in perpetuity to redeem a pledged land was the same in Olomoro, Isoko as that obtaining in Ghana or the Western State, we are not satisfied that the decision of the learned trial judge was based on Agbo Kofi v. Addo Kofi and Leragun and anothers v. Funlayo as contended by counsel.
The cases were referred to by the learned trial judge not on the issue as to whether or not a pledged land was redeemable at all but on the issue, which was not raised even in the pleadings, namely, as to whether or not permanent crops planted on such land or the duration of the pledge could constitute a bar to redemption. The point was stated by the learned trial judge in this way:
“The planting of permanent crops on the land pledged and the lapse of time are no bars to the recovery of land which has been pledged. See Agbo Kofi v. Kofi Agbo  1 W.A.C.A. 284, Leragun and 4 others v. Funlayo 1955-56 W.R.N.L.R. 167.”
On the issue of the existence of the right to redeem a pledged land, we think that counsel’s submission that there was no evidence to support the finding that under Olomoro custom land pledged is redeemable is not well founded. The existence of such a custom in Olomoro was admitted by the defendants. In particular, the 1st defendant under cross-examination said:
“If the plaintiff’s father had pledged the land to my father, I would allow the plaintiff to redeem it. According to Olomoro custom, if land is pledged, it is redeemable.”
On such clear admission by the 1st defendant the learned trial judge having found that the land in dispute was pledged, the decision reached by him was, of course, inevitable. If there were special requirements of Olomoro custom that a pledged land was not redeemable in the ordinary way by a refund of the sum lent, then the onus was on the person alleging such requirements to prove them. In the present case, the defendants neither alleged in their statement of defence nor offered evidence in proof of such special requirements.
In his judgement the learned trial judge found as a fact that the plaintiff’s father borrowed 6pounds from the defendants’ father pledged the land in dispute in accordance with Isoko custom as security and expressed an intention to redeem when he could get 6pounds to refund to the defendants’ father; and that under Isoko custom “land pledged is redeemable no matter the length of time that passed before redemption”.
It has not been shown that there was no evidence to support these findings. On the contrary, after a careful study of the proceedings and of the judgement of the learned trial Judge, we are of the opinion that these findings were amply supported by evidence.
There is no substance in this appeal, which is dismissed with costs assessed and fixed at 38 guineas.
Other Citation: (1970) LCN/1785(SC)