Abudu Wahabi Awoyo & Ors V. Magnus Ayinla Abasi Opere & Ors (1976) LLJR-SC

Abudu Wahabi Awoyo & Ors V. Magnus Ayinla Abasi Opere & Ors (1976)

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NASIR, J.S.C. 

In exercise of its powers under the Lagos Town Planning Act, the Lagos Executive Development Board (hereinafter called the Board) acquired on the 1st March, 1956, the landed property known as 97, Victoria Street, Lagos, popularly called ‘Opere Mosque’ and asked the owners to come forward and claim compensation. As a result of this, two sets of claimants emerged, namely,

(1)Magnus Ayinla Abasi Opere – 1st set, and

(2)Members of the Management Committee of the Opere Mosque – 2nd set.

This second set of claimants consisted initially of the representatives of the Jamat (or congregation of the Mosque) and the representatives of the Opere family. The second set authorised “our solicitor Mr. L.J., Dosunmu …. to negotiate and settle the compensation payable” in respect of their property namely, the ‘Opere Mosque’ (see Exhibit “B” – letter of Authority). The first set initially claimed as an individual but later, five other members of the Opere family were joined as representatives of each section of Disu Bakare Opere family.

Plot No. 97, Victoria Street is now called Plot No. 97, Nnamdi Azikwe Street. The relevant and interesting history of this plot is as follows. One Obayomi, the owner of this plot under Crown Grant No. 278 and dated 8th day of July, 1869 pledged the plot as collateral security for a loan. He could not pay the loan. His friend, one Disu Bakare Opere, paid the loan on Obayomi’s behalf but as Obayomi could not pay this debt up to the time of his death, the plot was ultimately transferred to the said Disu Bakare Opere by the executor of the estate of Obayomi.

This Disu Bakare Opere was a rich man and also a devout Moslem. He was using the land as worshipping ground and subsequently built a mosque which was being used by all the Moslems in Victoria Street for religious purposes. It would also seem, and this is not in dispute, that after the death of Disu Bakare Opere, the land and the mosque were not shared as part of the estate but continued to be used as a mosque under the general control and supervision of Abasi Opere, the senior son of Disu Bakare Opere who was also another devout Moslem. This Abasi Opere was highly respected and became the Imam of this mosque during his life-time. It was clear from the evidence that the Imam, Abasi Opere, spearheaded and succeeded in applying for and obtaining another Crown Grant No. 26 of 4th June, 1912 registered in Volume 59 page 54 in the Lands Registry at Lagos in respect of Plot No. 97, Victoria Street, Lagos, for: “Abasi Opere on behalf of the Mohammedan Community of Victoria Street”. (See Exhibit “P”).

This grant was specifically said to supercede the grant to Obayomi (see Exhibit “N”). The new Crown Grant, Exhibit P, was still subsisting up to the time of the acquisition by the Board. In exercise of the authority given in Exhibit B, an agreement was reached on 17th February, 1960 between the owners of the Opere Mosque and the Board as to the compensation payable. The agreement also included the procurement of an alternative site and the building of a new commensurate mosque by the Board. Up to the date of the agreement the second set of claimants consisted of

(a) the members of the Management Committee of the ‘Opere Mosque’ headed by the Imam and

(b) the majority of the heads of the various houses constituting the Opere family including the most senior person, K.L. Opere but excluding Magnus Ayinla Abasi Opere who up to this time was claiming alone.

As we have pointed out earlier, on 22nd July, 1968, an application was made for:

(a)Abdul Raimi Yesufu Abasi Opere

(b)Salami Kadiri Folami

(c) Sunmola Mustafa Abasi Opere

(d)Kasunmu Lawal Opere

(e)Ganiyu Sunmola Kadiri Opere

to join Magnus Ayinla Abasi Opere as the first set of claimants. The court made the order on the 29th July, 1968. Later on 10th March, 1969, Yesufu Mustapha Abasi Opere was substituted for Abdul Raimi Yesufu Abasi Opere who had died as a result of a motor accident. Thus, the members of the Opere family withdrew from their partnership with the Management Committee of the Opere Mosque over eight years after the agreement on the compensation had been reached.

The application under the originating summons came before Sowemimo, J., (as he then was), who in a ruling dated 22nd September, 1969, doubted the validity of this application by the Board as an agreement had already been reached on the compensation since 1960 but he refused to strike out the application due to the claim of Magnus Ayinla Abasi Opere which was outstanding since 1959. We share his views.

The application was finally heard by George, J. The concluding part of the judgment reads:-

“I would therefore answer the question in the originating summons by saying that the person entitled to the compensation payable on the Mosque known as Opere Mosque at No. 97, Nnamdi Azikwe Street are the 1st set of claimants.

No doubt the first set of claimants after paying all the necessary and incidental expenses would build another mosque.

Finally, I would say that the parties have agreed that this is the only question to be answered at the moment as the LEDB has promised to build another mosque for the claimants”.

This decision gave rise to this appeal by the second set of claimants, that is, the members of the Management Committee of the Opere Mosque.

Learned counsel for the appellants, Chief Williams, argued a number of grounds of appeal. The arguments of learned counsel could be summarized as follows:-

(a)That Magnus Ayinla Abasi Opere was claiming the property as an individual.

(b)That the joinder of the other members of the Opere family with Magnus Ayinla Abasi Opere was wrong as the other members had already agreed to the compensation.

(c) That the Management Committee and the Opere family had already negotiated with the Board a value for the compensation payable and there was nothing which the Board could refer to court. The remedy open to Magnus Ayinla Abasi Opere was to institute an action to get the agreement set aside and this he had not done.

(d) That (a) to (c) were supported by the ruling of Sowemimo, J., (as he then was) and therefore the only outstanding claim, if any, which could have been decided upon by George, J., was the claim by Magnus A.A. Opere, and in the alternative.

(e)That the Opere Mosque was a trust property belonging to the Moslem Community of Victoria Street and not the property of the Opere family. (See Exhibit “P”).

He concluded that the learned trial Judge erred by declaring the 1st set of claimants as the right persons to receive the compensation and that his clients should have been declared as the right persons to receive the compensation if it were to be paid in cash but there was an agreement for the Board to build a new mosque.

In his reply, learned counsel for the respondents, Chief Akinyede, submitted that Magnus Ayinla Abasi Opere was not claiming as an individual and that he (Abasi Opere) was not the sole owner of the Mosque and further that the property belonged to all the children of Disu Bakare Opere. He contended that the Opere family were all joined before the ruling of Sowemimo, J. On the alternative ground, Chief Akinyede argued that the most relevant exhibit was Exhibit “N”, that is, the Crown Grant to Obayomi. He further submitted that even in Exhibit “P” the grant was made to “Abasi Opere” and the additional phrase “on behalf of Mohammedan Community” should be understood to be no more than permission to use the ground and the mosque for purposes of worship. The property formerly belonged to Abasi Opere and other children of Disu Bakare Opere and continued to belong to them as the Crown Grant in Exhibit “P” had not altered the position. He concluded that there was no trust.

We have carefully considered all the arguments of learned counsel for the appellants and those of learned counsel for the respondents. The only issue upon which the parties wanted a decision and upon which the learned trial Judge gave his decision was the ascertainment of the persons entitled to receive the compensation. The learned trial Judge found:

“I would therefore answer the question in the originating summons by saying that the persons entitled to the compensation payable on the Mosque known as Opere mosque at No. 97, Nnamdi Azikwe Street, are the first set of claimants”.

He went on to show that the first set of claimants would build another mosque. He also concluded by saying that the parties agreed that it was the only issue to be decided and that the Board had agreed to build a new mosque for the claimants. At the end of the day and after all the legal arguments before us, both counsel substantially agreed that none of the two sets of claimants was after the money. Each set would like to have a new mosque built for them. This was also the finding of the learned trial Judge. It appeared also before us that both sides have no objection to the new mosque being built by the Board as stated by the learned trial Judge. The respondents also indicated to us that they would like the new mosque to bear the same old name of “Opere Mosque”. Chief Williams, on behalf of the appellants, gave an undertaking as to the name.

We have not been convinced that Exhibit “P” could have any meaning other than that it was a Crown Grant to “Abasi Opere” simpliciter, or to the Opere family. We have carefully considered the judgment of the learned trial Judge and the arguments of learned counsel for the appellants. We have, however, not the slightest doubt that Exhibit “P” vested the ownership of plot 97, Nnamdi Azikwe Street in the Moslem Community of the street as a charitable trust of which the Management Committee are trustees. As, however, both sides now have no objection to the Board building the mosque, we would not make any order which would have the effect of impeaching the 1960 agreement against which there was no appeal and which had also the support of the majority of the Opere family when it was made.

We are of the opinion that this appeal must succeed as the compensation payable, if it were to be paid, should be paid to the charitable trust of the Opere Mosque. The appeal is accordingly allowed and the judgment of George, J., delivered in the High Court of Lagos State on 22nd September, 1972, is hereby set aside. Instead, we direct that the Board should build the mosque as agreed in 1960 and that it should be called the “Opere Mosque”. This shall be the judgment of the court. In conclusion, we appreciate the determination of both sides to serve their religion, but we are of the view that the religion can best be served if the parties will try to reconcile their differences and unite in this service and we so advise.

We make no order as to costs.

Other Citation: (1976) LCN/2351(SC)