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TRADITIONAL EVIDENCE THAT LAND IS JOINTLY OWNED IS PROOF OF CO-OWNERSHIP

Dictum

For example where there is convincing traditional evidence that the land is jointly owned or commonly owned by the parties, a case of co-ownership is proved. Similarly if the plaintiff tenders documents which are jointly authenticated or jointly executed by the co-owners, a case of co-ownership is proved. So also is evidence of joint possession. But, evidence of family genealogy, or traditional history, without more, cannot be held to be sufficient evidence of co-ownership.

— Tobi, JCA. Abraham v Olorunfunmi (1990) – CA/L/83/89

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BEFORE THE COURT CAN ORDER PARTITION, THERE MUST BE PROVE OF CO-OWNERSHIP

It is clear from the above definition that the forerunner of partition is co-ownership. That is, before a court of law can order the partition of property, there must be proof of co-ownership. The proof of co-ownership is in my view, similar to the proof of joint ownership or joint title to land. And this takes us to the five ways of proving title to land as enunciated in Idudun v. Okumagba (1976) 9-10 S.C.277, (1976) 1 N. M. L. R. 200.

— Tobi, JCA. Abraham v Olorunfunmi (1990) – CA/L/83/89

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TO SUCCEED IN LAND PARTITION, PARTY MUST PROVE CO-OWNERSHIP

Yoruba customary law recognises partition as one way of alienating family property. The case law is in great proliferation see for example Lewis v. Bankole (1908) 1 N.L.R. 82, Sale v. Ajisegiri 13 N.L.R. 146. In the Matter of the Estate of Edward Forshter (1988) 14 N.L.R. 83; Alhaji Olowosago and Others v. Alhaji Adebanjo and others (1988) 4 N.W.L.R. (Pt.88) 275. But before a plaintiff asks for partition he must first prove that the property concerned is family property and not the exclusive property of the defendant. He must also prove that he is a member of that family. In order to succeed in an action for partition, it is not enough to prove that the property is family property without establishing the legal nexus between the plaintiff and the property in question. A mere stranger cannot successfully sustain an action for partition of family property. He will be regarded as an intruder or a busybody. Therefore, before a plaintiff institutes an action for partition, he must prove ownership or title to the land. Ownership is a multi-referential word which does not lend itself easily to an apt or precise definition. And what is more, the issue becomes much more complex when the word is to be defined in the context of customary Land Law, such as the position we have in this matter.

— Tobi, JCA. Abraham v Olorunfunmi (1990) – CA/L/83/89

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GENERAL MEANING OF OWNERSHIP

Generally speaking, ownership connotes the totality of or the bundle of the rights of the owner over and above every other person on a thing. It connotes a complete and total right over a property. The owner of the property is not subject to the right of another person. Because he is the owner, he has the full and final right of alienation or disposition of the property. And he exercises this right of alienation and disposition without seeking the consent of another party because as a matter of law and fact there is no other party’s right over the property that is higher than that of his. He has the inalienable right to sell the property at any price, even at a give away price. He can even give it out gratis, that is for no consideration. The owner of a property can use it for any purpose; material, immaterial, substantial, non-substantial, valuable, invaluable, beneficial or even for a purpose which is detrimental to his personal or proprietary interest. In so far as the property is his and inheres in him nobody can say anything. He is the alpha and omega of the property. The property begins with him and also ends with him. Unless he transfers his ownership over the property to a third party, he remains the allodial owner.

— Tobi, JCA. Abraham v Olorunfunmi (1990) – CA/L/83/89

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FIVE WAYS OWNERSHIP OF LAND MAY BE PROVED

Idudun v. Okumagba (1976) 9-10 S.C.277, (1976) 1 N. M. L. R. 200, as follows: (1) By traditional evidence; (2) By production of documents of title duly authenticated and executed! (3) By acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference of true ownership; (4) By acts of long possession and enjoyment and (5) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute. See also Mogaji and others v. Cadbury (Nigeria) Ltd. (1985) 2 NWLR (Pt.7) 393. Fasaro and Another v. Beyioku and others (1988) 2 NWLR (Pt.76) 263. Okonkwo v. Okolo (1988) 2 NWLR (Pt.79) 632. I think a party can use the above five ways to prove co-ownership by leading evidence to establish joint or common rights over the land.

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THE WORD “CO” IN CO-OWNERSHIP

The word “Co” coming before the word Ownership contextually does not mean an abbreviation for company. The epithet, when used along with the word ownership has the connotation of joint-ownership. In the context of joint-ownership, the definition given above will apply mutatis mutandis to the joint owners of the property inter se. And in the context of the appellants claim, the property is owned by them and the respondents jointly. That is their claim and remains their claim.

— Tobi, JCA. Abraham v Olorunfunmi (1990) – CA/L/83/89

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