OWONYIN & ORS V. OMOTOSHO

• Pages: 179-185

OWONYIN & ORS V. OMOTOSHO.

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is entitled to read or infer the term that the goods were to be cleared within a rea-

sonable time into something which was really never before the Court.

I would therefore uphold the judgment of the trial Judge, though for different

reasons. I would dismiss this appeal with costs in favour of each respondent in

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the sum of thirty-three guineas.

Brett, F.J.:

I concur.

Unsworth, F.J.:

I concur.

Appeal dismissed.

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OWONYIN & ORS V. OMOTOSHO.

15

OMIDOKUN OWONYIN

(for himself and representing

the Owonyin family)

V

20 OMOTOSHO

FEDERAL SUPREME COURT.

ADEMOLA,

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F.J.F.

UNSWORTH,

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F.J.

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BAIRAMIAN,

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F.J.

15th June, 1961.

APPELLANT

RESPONDENT

SUIT NO. FSC 249/1960

Land law- Customary law - Title to land, Joint Ownership - Two families.

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Evidence- Estoppel - Res Judicata - Judgment in former action - Admissibility of

Judgment in former action.

Practice and Procedure - Appeals - Duty of Appellate Court - Evidence wrongly

admitted without objection - Costs - Grounds for refusal to award costs to

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successful party.

ISSUES:

1. Whether an appellate court has power to reject evidence wrongly admitted at

trial without objection.

40 2. Whether evidence by a witness in a previous case can become evidence in a

later case?

3. How is a rule of Customary law to be ascertained?

FACTS:

The plaintiff alleged that his ancestor was the first to settle on the land in dis-

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pute; that the defendant's ancestor came later and farmed with the permission of

the plaintiff's ancestor; that in recent years the two families agreed jointly or sev-

erally to apportion portions of land to newcomers; that when one Onitabo en-

croached in 1946 the defendant with the consent of the plaintiff sued and ejected

him, but afterwards began to behave as if the land were his; and the plaintiff claimed

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a declaration that the land belonged to both families according to native law and

custom.

The defendant alleged that his ancestor founded the land; and the plaintiff's an-

cestor came later to settle with him; that the defendant's family allocated land to

tenants without reference to the plaintiff's family; and the defendant sued Onitabo