APOESHO & ANOR V. AWODIYA

• Pages: 40-44

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NIGERIAN SUPREME COURT CASES

[1964] N.S.C.C.

APOESHO & ANOR V. AWODIYA

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1.

JOHN APOESHO

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APPELLANTS

2.

AYENI TOGUN

V

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CHIEF AWODIYA (Odole of Ilesha)

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RESPONDENT

SUIT NO. FSC 294/1960

SUPREME COURT OF NIGERIA

ADEMOLA,

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C.J.N.

BRETT,

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J.S.C.

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ONYEAMA,

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Ag. J.S.C.

6th March, 1964

Customary Law - Native Law and Custom - Family property - Stool land -

Whether distinguished in Ilesha (W.R.) no evidence.

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ISSUE:

1. Whether there is a distinction between the stool land and family land of a

chieftaincy family under Ilesha native law and custom.

FACTS:

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The Plaintiff, the Odole Chief of Ilesha, sued for a declaration that certain land

belongs to the Odole Chieftaincy family of Ilesha and that he is the owner. The

pleadings raised the issue whether the land in dispute is stool land or family

property belonging to the Odole family (of which the defendants were found by

the trial judge to be members - a finding not disputed in the appeal.) No satisfac-

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tory evidence was called by the parties as to the existence of a distinction between

stool land and family land of a chieftaincy family, but the trial judge, following a

decision of Ghana customary law, held that such a distinction existed and that, un-

less the contrary was specifically made clear, property acquired by a chief after

his installation automatically became stool land: (the land in dispute was given by

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the Owa of Ilesha to the Odole, one of his subordinate chiefs, after the plaintiff was

installed as the Odole). Judgement was given for the plaintiff.

In their appeal the defendants complained

(inter alia)

that the judge was wrong

in making that distinction.

HELD:

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4(

It being a question of fact whether there is a distinction between stool land and

family land of a chieftaincy family in the native law and custom of Ilesha, in the ab-

sence of evidence on the point the Supreme Court was not prepared to adopt the

trial judge's view.

4!

CASES REFERRED TO IN JUDGMENT:

1.

Oyekan v. Adele

14 W.A.C.A. 209

2.

Yamuah IV v. Sekyi

3 W.A.C.A. 57

Olowofoyeku,

for appellants.

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Adeyefa,

for respondent.