Mrs. Florence Mosunmola Otunla & Ors V. Madam Idowu Ogunowo (2003)

LawGlobal-Hub Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.C.A.

This is an appeal against the judgment of Honourable Justice B. O. Martins of the Lagos State High Court delivered on 12th July, 1988.

The claim of the appellants who at trial -were the plaintiffs against the respondent as defendant were for:
(i) Possession of portion of the property situate, lying and being at
(ii) No. 148 Agege Motor Road, Mushin, with the building thereon.
(b) N1 ,000.00k damages for trespass and
(c) Injunction restraining the defendant her agents and/or servants from further acts of trespass on
said property.

Pleadings were ordered, filed and exchanged.

The appellants called three witnesses while the respondent gave evidence on her own and called one witness in proof of their case and defence respectively.

The appellants’ case as contained in their statement of claim is that they are the surviving children of late Ogun Alade Opanuga who died intestate many years ago. The respondent is a surviving sister of the deceased. The property situate, lying and being at No. 148 Agege Motor Road, Mushin was granted to their deceased father in or about 1948. It was a customary grant. Late Ogun Opanuga erected a house on the said land before his death. The property devolved on appellants on the death of their father by virtue of native customary right of succession. Out of sympathy, appellants allowed the respondent to live in one of the rooms. Subsequently, respondent abused this generosity by erecting additional structures on the property without the knowledge and/or consent of the appellants.

Respondent continued to add more structures on the property inspite of protests and warnings that she must desist from so doing.

Eventually, respondent built up the whole available space within the property. Respondent started encroaching on the main house built by her late brother and constituted herself a nuisance. Appellants further averred that they caused respondent to be written letter reference No. AA/1/1/16/81 dated 20th July, 1981 by their solicitors.

Inspite of this letter, respondent continued in possession with various acts of trespass and nuisance.

It is also appellants case that by a formal lease dated 13th March, 1974 and registered as No. 34 at page 34 in Vol. 1448 of the register of Deeds of Lagos State they became leasees of the very property that had devolved on them by right of succession. They pleaded to rely on the survey plan attached to the registered deed of lease.

The case of the respondent, on the other hand, is that whereas it is true that her late brother, Ogun Alade Opanuga had acquired a grant of land from the Ojuwoye communal land owners Mushin, the deceased never built the said piece of land before his death. She averred in her statement of defence that sometime in 1985, she cleared a bushy strip of land by the side of her later brother’s piece of land.

She also averred that the Ojuwoye communal land owners challenged her stating that she was not the lawful owner of the cleared land. The communal owners also stated on the occasion that the land was Whether the appellants had proved their claim to possession of the open space by the side of No. 148 Agege Motor Road, Mushin Lagos or not.

Whether appellants having put their title in issue from the nature of the claim, had successfully established their not owned by one Ashola, a neighbour as well. Respondent appealed to the Ojuwoye communal owners of the land who were prepared to and secured from them a grant over the land she cleared. She secured the grant of the lease which commenced in 1956 for an annual rent of N2.10s through the influence of one Omoputa, now deceased.

Respondent paid this annual rent till 1968. The strip of land measuring 25ft by hundred ft was sold to her in 1969 for a price of N250. Respondent pleaded to rely on the record of the rents she paid and the purchase receipt for the sum of N250. It is respondent’9191s further case that she caused the land No. 148B Agege Motor Road to be surveyed in 1981 by one licensed surveyor by name Mr. M. A. Koiki. The surveyor produced survey plan No. MK 194/81.