Gabriel O. Okunzua V. Mrs. E.B. Amosu & Anor. (1992)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C.

In the High Court of Lagos State, the appellant herein, as plaintiff instituted an action against the respondents on an amended writ of summons endorsed as follows:-

“(1) A declaration that the first Defendant is not entitled to enter or use the private driveway in the Plaintiff’s dwelling house and premises situate at No.7B Iya Oloye Crescent, Maryland, Ikeja, measuring 67 metres or 220 feet long and 3.7 metres or 12 feet at its widest at the entrance.

(2) The sum of N50,000 (Fifty Thousand Naira) being special and general damages (on the footing of aggravated damages) for trespass and nuisance committed by the First Defendant when on diverse dates between 2nd April, 1983 and (up) to the date of the writ:-

(a) the said First Defendant broke and entered the Plaintiff’s premises by cutting an opening in the wall fence separating the Plaintiff’s dwelling house from the (first) Defendant’s, entered the said driveway and maliciously committed acts of want on destruction of the Plaintiff’s stock-in trade, to wit, his decorative cum-curative research plants and flowers.

(b) the said (first) Defendant by herself, her agents, servant, visitors or otherwise, continuously harassed and threatened the Plaintiff, members of his household, visitors, workers and servants.

(c) the said first Defendant continuously deposited, and or cause faeces, rubbish and other effluent and obnoscious (sic) substances to be (deposited) on or about the Plaintiff’s dwelling house.

3. An (Order of Perpetual) injunction restraining the first Defendant whether by herself, her servants or agents or otherwise howsoever from entering or using the said Driveway.
4. An order of mandatory injunction ordering the first defendant to block the (opening on) the side gate made by her in the partition wall and leading onto the (said) Plaintiff’s dwelling House and premises.
5. An Order of Perpetual Injunction restraining the first Defendant, her servants or agents or otherwise howsoever, from the continuance or the repetition of the unlawful acts of trespass or repetition of the said nuisances or damage in any manner in respect of the Plaintiff’s said dwelling house and premises.
6. An Order of Perpetual Injunction restraining the 2nd defendant. By her (himself. his servants or agents or otherwise howsoever from committing a breach of the oral tenancy agreement between him and the Plaintiff, relating to No. 7b Iya Oloye Crescent, Maryland, Ikeja, (which the Plaintiff holds of him as tenant) by granting or purporting to grant the use of the drive-way in the said demised premises (and forming part of the said demised premises) or in any way derogating from his grant of the demised premises to the plaintiff.
7. Alternatively, the sum of N50,000.00 (Fifty Thousand Naira) against the 2nd Defendant being special and general damages for breach of the implied covenants for quite enjoyment on the (partly oral and partly) written agreement for a yearly tenancy between the Plaintiff and the 2nd defendant in respect of the demised premises, when the 2nd defendant permitted or allowed the 1st defendant to use the drive-way in the Plaintiff’s dwelling house and premises (the demised premises). as a consequences of which the Plaintiff suffered loss and damages, particulars of which are contained in the statement of claim.
8. “Further or other relief.”

The appellant’s case, as pleaded is that until his retirement in 1975, he was a staff of the College of Medicine of the University of Lagos engaged as a Researcher in Parapsychology and Leaf Contact Therapy. He first occupied the dwelling house at No.7B Iya Oloye Crescent. (or No.2 Idiroko Crescent) in March 1973 as a service tenant of the University of Lagos College of Medicine which had obtained a lease of the house from the 2pd respondent on a yearly tenancy basis for an agreed rent, and on terms that the dwelling house, premises and a driveway appurtenant thereto Should be “clean, clear. plainful and free from any incumberance.”

The driveway was the only outlet to the house which also leads to the main road at Iya Oloye Crescent. The tenancy agreement between the College of Medicine and the 2nd respondent continued until the appellant retired from the services of the College of Medicine in 1975.

After his retirement the appellant entered into a new lease with the 2nd respondent on a year to year basis and consequently the appellant and his family continued to occupy the house. It was the case of the appellant that at the inception of his new tenancy agreement with the 2nd respondent, he was granted exclusive possession of the dwelling house and premises, including the driveway which is the subject of the dispute in the case.

The 1st, respondent was the occupant of the premises known as No.9 Iya Oloye Crescent, Off Ikorodu Road, which is adjacent to the appellant’s house. In or about 1974 she erected a high partition wall demarcating the appellant’s house from hers, although she and her husband were allowed to continue to use the driveway by the appellant. Subsequently the appellant also erected three partition walls on the, remaining three sides of his house to separate his building, including the driveway, from other neighbours’ houses. But on the 2nd April, 1983 the 1st respondent unlawfully broke into the appellant’s premises. It was the case of the appellant that the 1st respondent was not entitled to the use of the driveway which was situated in the appellant’s dwelling house.

Subsequently the 1st respondent moved from the main building to the Boys Quarters, after she had let the main building to the Savannah Bank of Nigeria. She then erected a wall within her premises to demarcate the main building from the Boys Quarters which she occupied and thus completely blocked, off the Boys Quarters from the main road, Iya Oloye Crescent. In order to secure access to the main road, from the Boys Quarters, the 1st respondent caused an opening in the fence demarcating her house from that of the appellant and also erected an iron gate on that opening and thereby trespassed on the appellant’s dwelling house. She thus maliciously destroyed the appellant’s valuable stock-in-trade such as flowers and plants on which the appellant had spent a considerable amount of money. It was the appellant’s case that the 2nd respondent did not permit the 1st respondent to commit the trespass and nuisance alleged and if he did, then that would amount to a derogation of the grant made to him by the second respondent to have the exclusive use of the driveway.

After the appellant had instituted this action, there was an application for an interlocutory injunction filed by the appellant against the 1st respondent. It was in opposition to that application that for the 1st time, the 2nd respondent swore to a counter-affidavit stating that it was he who had granted a license to the 1st respondent to use the driveway in dispute. In paragraph 41 of the Final Amended Statement of claim the appellant set out detailed particulars of the injuries he had suffered as a result of the acts of trespass and nuisances committed by the 1st and 2nd respondents. He also claimed N12,300 damages against both respondents as general damages and another sum of N50.000.00 against both respondents as special and general damages.

The 1st and 2nd respondents filed and served separate defences to the appellant’s claims. In her Amended Statement of Defence it was the contention of the 1st respondent that the driveway in dispute had never been used exclusively by the appellant. She contended that the driveway had always been used by her, her late mother, her relations and all her visitors. She denied committing any trespass on the property of the appellant. She averred that the two parcels of land on which the 2nd respondent’s houses leased to the appellant and her own houses were built were parcels of land allotted to both respondents by Madam Rabiatu Iyalode (now deceased). Otherwise known as Rabi Alaso who died in 1974 and who was owner by virtue of inheritance. It was her case that prior to her death in 1974, Rabiatu Iyalode shared all her vast estate among her descendants including herself and the 2nd respondent. It was her case that the premises let to the appellant by the 2nd respondents did not extend to the driveway in dispute, and that it was with her consent that the appellant was allowed to use the driveway. This is the same driveway she averred, she could use to get to her residence at the back of her landed property. She pleaded that the appellant could not claim exclusive possession of the driveway and for this assertion she would rely on the counter-affidavit of the 2nd respondent sworn to on the 25th day of May, 1984 and also on a further affidavit sworn to by herself and filed on 28th May. 1984. In paragraph 35 of her Amended Statement of Defence, she averred thus