A pledge is an indigenous kind of mortgage by which the owner or occupier of land in order to secure an advance of money or money’s worth gives possession and use of the land to the pledge creditor until the debt is fully discharged.
A pledge of land exists where a person referred to as “pledger” gives or deposits any land or interest in land to another party called “pledgee” in which the person depositing the property binds himself to a particular thing. Example, is where A (pledgor) deposits his parcel of land to B (pledgee) in consideration for a sum of money.
A pledge is a form of security transaction known to customary law. A pledge in customary law is akin in some respects to mortgage in common law. The distinction between a customary pledge and the English mortgage transaction lies in the nature of the security gained to the creditor. If the agreement is intended to give the creditor some proprietary estate or interest in the property, then irrespective of the fact that the creditor takes possession of the property under an express stipulator or by operation of the law; the property is a mortgage. On the other hand, in a pledge, actual possession of the property is the whole gist of the creditor’s security.
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The usual understanding under customary pledge transaction is that the pledgee shall enter upon the pledgor’s land and enjoy rents and profits from the land until the pledgor settles the debt owed.
The maxim “once a pledge always a pledge” is an age-old maxim under customary law that signifies two basic principles;
- That a thing which is pledged is never lost. So long as it is possible to identify the original purpose or understanding behind the transaction, the land, and the parties of their successors to the pledge, there is a right to redeem the land notwithstanding that many years have elapsed from the date of the transaction.
- That notwithstanding any stipulations in the agreement for the postponement of the redemption date, the pledgor would be allowed to redeem his property within the stipulated period by tendering the money due to be paid. This is not withstanding that the pledgee has expended money on improvement or that he has invested money and labor in growing crops yet to be harvested.
The pledgor’s right to redemption cannot be clogged in any way by the pledges, such for instance by demanding any amount in excess for the sum in 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 exercise of the right of redemption, for customary pledges of land are customarily and perpetually redeemable. We can see the case of OKOIKO & ANOR Vs. ESEDALUE (1974) Here the plaintiffs sued the defendant in ughelli high court, claiming redemption and recovery of possession of OMOKPA land and an injunction to restrain defendants from interfering with the plaintiff’s possession of OMOKPA land, plaintiff’s grandfather had pledged the land to defendant’s grandfather for three pieces of cloth worth N30.00. The defendant and their ancestors had planted economic crops on the land after taking possession. Several years later, the plaintiff wanted to redeem the land but was asked by the defendants to pay N2,100.00 which plaintiffs refused. On a second approach, plaintiffs were asked to pay N1,200.00 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. At the high court, judgment was entered in favor of the plaintiffs. The defendants being not satisfied appealed to the Supreme Court. The appeal was dismissed. The Supreme Court held that the law is that the pledgees should quit the land as from the date of judgment in favor of the pledgor.
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