Omidokun Owonyin V Omotosho (1961)

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BAIRAMIAN, F.J

In this appeal the plaintiff complains against the judgment given in the High Court, at Ibadan, on the 23rd March, 1959, in a dispute about an area of land of about thirteen square miles.

The Statement of Claim was to this effect: –

Owonyin, the plaintiffs 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 por-tions of the land to newcomers and obtain ishakole from them (para. 9). When Onitabo encroached in 1946, the defendant with the consent and sup-port of plaintiffs family sued and ejected him (para. 10). Soon after he began to allocate land to tenants without reference to the plaintiff (para.11), and to drive away some of plaintiffs tenants and exact ishakole from others (para. 12). The plaintiff claims, inter alia, a declaration that the land belongs both to the plaintiffs family and the defendant’s family according to native law and custom. 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 plaintiffs 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 (para. 7). After obtaining judgment, the defendant drove Onitabo out and started to allocate land to people (para. 8). 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.

At the trial, the plaintiff amended his claim to read that he was asking for a declaration that the land belonged to his family.

It remains to note that, before beginning to put questions to the 1st witness for the plaintiff, Counsel for the defendant tendered by consent a copy of the proceedings in case 52146 of the Native Court – Omotosho (present defendant) v. Onitabo.

In his judgment, after reviewing the evidence for the plaintiff, the learned Judge says:-

I must confess that this is the first occasion of my hearing of any custom of this nature or of circumstances similar to this where the original owner and settler in effect makes a stranger a joint owner with him of the land he has settled on. I am most reluctant to accept it. On the evidence adduced by the plaintiff at this stage of the case the most that could be awarded him would be a joint declaration of title with the defendant. After reviewing the evidence for the defendant, the learned Judge says this:-

From the evidence led by both sides there is no doubt that there are tenant farmers on this large area of 12.29 square miles some of whom were put on the land by the plaintiffs’ family and some by the defendant’s family and some by the joint action of both families, which lends credence to the fact that both families must have been together on the land in dispute for a considerable length of time.

But, ownership or title must go to the first settler in the absence of any evidence that they jointly settled on the land or that a grant of a joint interest was made to the later arrival by the first. The question therefore resolves itself to this – who was the first settler on the land in dispute, Okegbemi or Owonyin? It is difficult to decide this point merely on the oral evidence of traditional history led by both sides, for such evidence was inconclusive. As to the acts of ownership exercised over the land the balance seems to be tipped in favour of the defendant. The greatest assistance I have however found in leading me to the decision to which I have come is found in exhibit C and the facts surrounding the case. It is therefore to this exhibit that I now turn my attention.

That exhibit is the copy of the Native Court proceedings in Omotosho v. Onitabo. The findings are, briefly, (1) that the defendant’s ancestor was the original settler (2) the plaintiff’s ancestor came later and was allowed to settle there (3) “That both families acted on several occasions jointly on the land” (4) that sometimes the plaintiffs family, in breach of its licence, made grants to tenants without consulting the defendant’s family (5) that the plain-tiff’s family knew about the 1946 case and sent one of its members to represent them as “a family granted licence to reside on the land in accordance with native law and custom.” The plaintiffs claims were dismissed, and the defendant was granted an injunction restraining the other family from alienating land, etc. Hence this appeal.

One ground of appeal is that the Judge misdirected himself “in holding, as it were, that the plaintiffs were concluded by the 1946 Native Court judgment.”

On the face of it, Omotosho v. Onitabo is a res inter alios acta; but it has been argued for the defendant, now respondent, that the judgment could have been put in as estoppel by conduct, under the judgment in the Ghana case of Nana Ofori Atta II and another v. Nana Bonsra Agyei and another, 14 W.A.C.A., 149, which was confirmed in the Privy Council: 1958 A.C., 95.

First, I should observe that it is the practice to plead estoppel specifically. In the present case, the plaintiff is saying, the defendant consulted us before suing Onitabo; and the defendant is saying, no, I did not, I sued on my own. The defendant is not saying, I am going to rely on the Native Court judgment. Consequently, the judgment cannot be used as estoppel. The issue on the pleadings was merely this: did the defendant consult the plain-tiff’s family before suing Onitabo for trespass?

Secondly, I should observe that the facts of the case cited are different from the facts in the present case. In that case, on one side were ranged the Muronam Stool and the Stool of Abuakwa, to which Muronam owed allegiance, and on the other side the Adanse Stool and its subordinate, the Stool of Banka. In an earlier action the Muronam Stool litigated against the Banka Stool the title to certain land; the Banka Stool won. Abuakwa knew about that action, but did not ask to be joined. Some years later, Abuakwa and Muronam sued Adanse, who asked for Banka to be joined as co-defen-dant. Banka and Adanse pleaded the previous judgment as estoppel to pre-vent the action being heard, and succeeded. Muronam was plainly bound by the judgment in the earlier action in favour of Banka. The Privy Council held that Abuakwa, having stood by while Muronam, its subordinate, fought the question of title in the same interest, was estopped from litigating the matter afresh, in accordance with the principle stated by Lord Penzance in Wytcherley v. Andrews (1871) L.R. 2 P. and D. 327, at 328.

In the present case, Onitabo, who had lost to Omotosho (the defendant here), is a stranger to the present plaintiffs family. The Ghana case might have been useful to Onitabo, if he had won against Omotosho, and if later the present plaintiff were litigating with Onitabo: Onitabo might then have said to the present plaintiff: whether as Omotosho’s overlord or as his co–owner, you should have come into that case.

I think, with respect, that it was a mistake to rely on the proceedings in the Omotosho v. Onitabo case in arriving at a decision in the present case. I bear in mind that those proceedings went in by consent, but, where a judge tries a case without a jury, as it is put in the headnote to Jacker v. The Inter-national Cable Co. (Ltd.) (1888) 5 T.L.R., 13, the rule is that:-

Where matter has been improperly received in evidence in the court below, even when no objection has been raised, it is the duty of the court of appeal to reject it and to decide the case on legal evidence. In the judgment under appeal Omotosho v. Onitabo begins to be used in the review of the evidence for the plaintiff; both there and later the entire proceedings are used as if they were legal evidence, which, with respect, was a mistake. 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 in-discriminate introduction of other proceedings into a trial will be discontinued.

I now pass to another ground of appeal, that the trial Judge misdirected himself “(d) in holding that there cannot be joint ownership of land under native law and custom unless the original settlers either received a joint grant or settled contemporaneously in time.”

The learned Judge said that he was most reluctant to accept the existence of a custom where the original owner and settler in effect makes a stranger a joint owner with him of the land he has settled on. Later he says that 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. Later on he says:-

But ownership or title must go to the first settler in the absence of any evidence that they jointly settled on the land or that a grant of a joint interest was made to the later arrival by the first. The question therefore resolves itself to this – who was the first settler on the land in dispute, Okegbemi or Owonyin? That question assumes that there was no evidence “that a grant of a joint interest was made to the later arrival by the first.” Learned Counsel for the respondent, the defendant below, very candidly and properly, concedes that there was evidence to support the view that the two

Other Citation: (1961) LCN/0909(SC)