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Owonyin V. Omotosho (1961) – FSC

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➥ CASE SUMMARY OF:
Owonyin V. Omotosho (1961) – FSC

by “PipAr” Branham-Paul C. Chima.

➥ COURT:
Supreme Court – F.S.C.249/1960

➥ JUDGEMENT DELIVERED ON:
15th June, 1961

➥ AREA(S) OF LAW
Family land.

➥ PRINCIPLES OF LAW
⦿ EVIDENCE GIVEN IN ANOTHER CASE, HOW MAY BE USED IN PRESENT CASE
Evidence given by a witness in another case may be used to impeach his credit if, in the later case, he says something different; but what he said in the earlier case does not become evidence in the later case. And a judgment given in another case can, in appropriate cases, be put in a later suit, to prevent the re-opening of the same question. One hopes that the indiscriminate introduction of other proceedings into a trial will be discontinued. — Bairamian, F.J.

Native law and custom is, I think, a mirror of accepted usage. — Bairamian, F.J.

➥ LEAD JUDGEMENT DELIVERED BY:
Bairamian, F.J.

➥ APPEARANCES
⦿ FOR THE APPELLANT

⦿ FOR THE RESPONDENT

➥ CASE FACT/HISTORY
Owonyin, the plaintiff’s ancestor, was the first to come and settle on the land. Okegbemi, the defendant’s ancestor, came later, and hunted and farmed with the permission of the plaintiff s ancestor. The two families later began to abide together so amicably that they almost passed as one family. In recent years the two families agreed jointly or severally to apportion portions of the land to newcomers and obtain ishakole from them. When Onitabo encroached in 1946, the defendant with the consent and support of plaintiff’s family sued and ejected him. Soon after he began to allocate land to tenants without reference to the plaintiff, and to drive away some of plaintiff’s tenants and exact ishakole from others. The plaintiff claims, inter alia, a declaration that the land belongs both to the plaintiff’s family and the defendant’s family according to native law and custom.

Available:  Daniel Kekong v. The State (2017) - SC

The Defence, after making some denials, alleges that it was the defendant’s ancestor who during the Fulani wars founded the land, and that the plaintiff’s ancestor came later to settle with him. The defendant’s ancestor and his descendants have exercised acts of ownership without reference to the plaintiffs family, and allocated land to tenants. When Onitabo encroached, the defendant sued him in the Native Court (suit 52/46) without reference to the plaintiffs family. After obtaining judgment, the defendant drove Onitabo out and started to allocate land to people. The plaintiff then began to interfere with the defendant’s tenants and to put in tenants of his own. By way of counterclaim the defendants asked for an injunction.

In this appeal the plaintiff complains against the judgment given in the High Court, at Ibadan, on the 23rd March, 1959.

➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]

🆕I. Whether there can be joint ownership of land under native law and custom unless the original settlers either received a joint grant or settled contemporaneously in time?

Available:  Sunday Udofia v. The State (1984)

RULING: IN APPELLANT’S FAVOUR.
A. THAT THE SAID LAND BELONGS TO BOTH FAMILIES
“Learned Counsel for the respondent, the defendant below, very candidly and properly, concedes that there was evidence to support the view that the two families owned the land together, were it not for the fact that the plaintiff was claiming that the land belonged to his own family alone. The plaintiff no longer makes that claim: the relief he wants is that the land be declared to be the property of both families. There was a reluctance on the part of the learned Judge to accept that the first settler could take on a later arrival as co-owner of land; and that reluctance seems to have deflected the learned Judge to the view that it was imperative to decide which of the two was the first settler – and then the later arrival would be a licensee.  I venture to think that the true question in the case is whether the evidence of the conduct of the ‘parties weighs down in favour of the view that the land belongs to them both. Native law and custom is, I think, a mirror of accepted usage. It seems to me immaterial whether it was Okegbemi or Owonyin who settled on the land first: whichever it was, did he make the later arrival his partner? That he did is suggested by the fact that, as the judgment states, some tenants were put on the land by the plaintiffs family, others by the defendant’s family and others by the joint action of both families.  It appears both from the pleadings and from the evidence that the two families lived in amity until after the case between Omotosho and Onitabo; the plaintiff alleges that after that the defendant began putting tenants on the land without consulting him.”

Available:  S.A.T. Taylor And Ors v. Kingsway Stores Of Nigeria Ltd & Anor. (1965)

“It was the view of the learned trial Judge, after considering the evidence for the plaintiff, that the two families owned the land together; I have looked at the evidence for the defendant, and it is my view that it supports the plaintiffs case, as originally presented, in his Statement of Claim, that the land belongs to both families.”

“Be that as it may, they behaved as if the land belong to both families, and it was not until some years after the Onitabo case that the defendant, who consulted the plaintiffs family before suing, and was doubtless meant to sue as the champion of both families, began to act arbitrarily. One hopes that now the old amity and common dealing with the land will be restored.”
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✓ DECISION:
“Appeal allowed.”

➥ MISCELLANEOUS POINTS

➥ REFERENCED (CASE)

➥ REFERENCED (OTHERS)

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