CHIEF NUMOGUN SAM ADEYEMI V. EMMANUEL OPEYORI
(1976) LCN/2238(SC)
In the Supreme Court of Nigeria
Friday, October 8, 1976
Case Number: SC. 454/1975
JUSTICES:
ALEXANDER IRIKEFE
IDIGBE CHIEF JUSTICE, NIGERIA
JUSTICE, SUPREME COURT
BETWEEN
APPELLANTS
CHIEF NUMOGUN SAM ADEYEMI (for themselves and on behalf of Emila Family )
AND
RESPONDENTS
EMMANUEL OPEYORI
FAMILY LAW – PERSON’S STATUS IN A FAMILY: WHEN THE STATUS OF A PERSON IN A FAMILY WILL BE QUESTIONED
“It is our view that a person’s status in a family cannot be called in question until he has become a member of the family. It therefore follows that when a person brings an action before the court to determine whether his adversary is a member of a particular family or not the question of the latter’s status in that family cannot at that stage arise'” Per Idigbe, J.S.C.
INTERPRETATION OF STATUTE – Section 9(1) of the High Court Law: Interpretation of Section 9(1) of the High Court Law
“The section and the said proviso read: “9(1) To the extent that such jurisdiction may be conferred by the Regional Legislature, and jurisdiction by this law vested in the High Court shall include all Her Majesty’s Civil jurisdiction which at the commencement of this Law was, or at any time afterwards may be exercisable in Western State, for the judicial hearing and determination of matters in difference, or for the administration or control of property and persons, and also all Her Majesty’s criminal jurisdiction which at the commencement of this Law was, or at any time afterwards may be exercisable for the repression or punishment of crimes or offences or for the maintenance of order; and all such jurisdiction shall be exercised under and according to the provisions of this Law and not otherwise: Provided that, except in so far as the Governor may by order in counsel otherwise direct and except in suits transferred to the High Court under the provisions of Section 28 of the Native Courts Ordinance, the High Court shall not exercise original jurisdiction in any matters which is subject to the jurisdiction of a customary court relating to marriage, family status, guardianship of children and inheritance or disposition of property on death”. It is clear from the above proviso that the High Court of the former Western State is precluded from exercising original jurisdiction in all matters which are subject to the jurisdiction of a customary court and relate to “marriage, family status, guardianship of property on death” but where a claim is clearly within the substantive enactment (i.e. within the terms of sub-section (1) of Section 9 aforesaid) the High Court is not precluded from adjudicating thereon merely because in the course of such adjudication it becomes necessary to make some casual or incidental inquiry into any of the matters classified to the proviso aforesaid.” Per Idigbe, J.S.C.
TORT – TRESPASS: In an action for trespass, whether a co-owner can maintain an action against the other if he has been dispossessed of the land to which they both have.
“Certainly, a co-owner can maintain an action in trespass against the other if he has actually been ousted or dispossessed of land to which both have communal ownership. Each of the co-owner is entitled to possession of the entire land and if one co-owner turns out the other from the entire land or even part of it, that is trespass (see also Voyce v. Voyce and Ors. 171 er 885). The principle applies to family land in Nigeria unless excluded by custom of the people of any specific or particular locality, as the case of Banigo v. Banigo (1943) 8 WACA 148) clearly shows.” Per Idigbe, J.S.C
WORDS AND PHRASES – “Family Status”: DEFINITION OF FAMILY STATUS
“Further, in his dissenting judgment, Akinkugbe, J.A. refers to the judgment in Ford v. Ford (1946-47) CLR 524 which we consider useful in the consideration of the subject and definition of the term “Family Status” and we quote from the judgment of Latham, C.J.: “A person may be said to have a status in law when he belongs to a class of persons who, by reason only of their membership of that class, have rights or duties, capacities or incapacities, specified by law which do not exist in the case of persons not included in the class and which in most cases at least could not be created by any agreement of such persons. An alien, for example, as distinct from a subject of the Crown, a married person as distinct from an unmarried person are all persons who have a particular status. The mere fact that an alien is an alien means that he is subject to certain disabilities and disqualifications in law. A husband because he is a husband owes special duties to his wife which he owes to no other person and cannot owe merely as a matter of law, to any other person. These consequences follow as a matter of law from the fact of membership of a particular class of persons”. (See Ford v. Ford (1946-47) CLR 524 at 529).” Per Idigbe, J.S.C.
IDIGBE, JSC. (Delivering the judgment of the Court): This appeal is from the judgment of the Western State Court of Appeal (Eso and Ogunkeye, JJ.A; Akinkugbe, J.A. dissenting) dismissing an appeal from the judgment of the High Court of the former Western State of Nigeria holden at Oshogbo whereby the appellants’ claims in Suit HIL/7/71 were struck out for want of jurisdiction. The claims are for: “(1) declaration of title to that piece or parcel of farmland situate, lying and being at Odo-Omo, Esa-Oke, Ijesha North Division, bounded on one side by Obaloro’s farmland, on the second side by Oshikun’s farmland, on the third side by Esa-Odo’s people’s farmland and on the fourth side by Orisaji’s farmland; (2) £300 as damages for wrongful trespass committed by the defendant who has been wrongfully entering the said farmland and with his agents and/or servants have been wrongfully reaping crops from the said farmland since 1962; and (3) injunction restraining the defendant, his servants and/or agents from “trespassing on the said farmland”. Pleadings were delivered and exchanged on both sides. The case came up for hearing on 16th November 1971 when the learned trial Judge recorded the following notes: “Parties present: Bola Ige for the plaintiff. Adelekun for the defendant. Mr. Adelekun, counsel for the defendant now informs the court that his client, the defendant now admits paragraph 4 of the plaintiff’s Statement of Claim to the extent only that the land in dispute is Emila family land but denies that Chief Numogun had anything to do with the said land. In view of the foregoing admission by Mr. Adelekun, Court calls for argument from counsel for both sides as to whether it has original jurisdiction to try this case since on the face of the pleadings in the case the only issue to be tried is whether or not the plaintiffs are members of Emila family, an issue which appears to relate to family status. Mr. Bola Ige argues for plaintiffs: He submits that the claim is for a declaration of the title to land. Plaintiff’s contention is that Emila family land is undivided and unpartitioned. Plaintiffs say they are members of Emila family, but that is not the main issue in dispute. It is only one of the things to be proved by plaintiffs to succeed in this action ………. Mr. Ige concedes it that the issue whether the plaintiffs are members of Emila family is a matter (sic) to family status. But he submits that the issue is only incidental in this case and not fundamental ………………. Mr. Adelekun counsel for the defendant informs the court at this stage that this earlier admission ………… comes with the admission of paragraph 3 of the PAGE| 3 plaintiffs’ Statement of Claim. He says his client admits paragraph 3 of the plaintiffs’ Statement of Claim ……………………………………………………………… The sole issue is whether plaintiffs are members of Emila family. If a court so finds plaintiffs are entitled to a declaration of title to the land in dispute jointly with the defendant. He says it is a matter relating to family status; refers to the Proviso to Section 9(1) High Court Law; says the issue is fundamental and not incidental. Submits the jurisdiction of the court is thereby ousted …………………………………………………………………….. Ruling reserved till 16th December 1971. (Sgd.) …………………………………………………. Judge 16/11/71”. The learned trial Judge delivered his ruling on 16th December 1971 and, as already stated, he struck out the claim for want of jurisdiction. Parts of his ruling read: “……….. On the face of the plaintiffs’ Statement of Claim and the defendant’s defence coupled with the latter’s counsel’s (Mr. Adelekun’s) admissions before m
