Goddy Edosa & Anor V. Mrs. Ekomwenrienrien Ogiemwanre (2018)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

The respondent herein was the plaintiff in a suit she instituted before the High Court of Edo State sitting in the Benin Judicial Division on 3/6/2003 against the 2nd appellant, her brother of full blood and one Goddy Edosa, the 1st appellant, as defendants. It was her contention that during his lifetime, precisely two years before his death in 1947, her father, Omwenke Agho, divided his property, which consisted of houses, undeveloped land as well as farmlands, between his children, male and female. According to her, the eldest son, Mr. Ehirnwenma Agho was given land and house no. 16/20 Dawson Lane, Benin City. He was also given a large rubber plantation at Ugbowo Village. After Ehimwenma’s death, the property shared to him was inherited by his children.

It was her contention that in recognition of her loving and meritorious service to her father, he gave her two rooms in the house situate at 48 Dawson Road, Benin City in addition to a piece of land on one side of the house. She claimed that this was done in the presence of

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witnesses, some still living and some now deceased. Her older brother, the 2nd appellant, was given two rooms and a parlour within the same house. Their mother lived in the two rooms shared to her during her lifetime. Upon her demise, the rooms were occupied by two relations until they left to get married. It was the respondent’s contention that after they left, her brother (2nd appellant) pleaded to be allowed to use the two rooms because the two rooms and a parlour shared to him could not accommodate his family. She agreed. She also gave the vacant land to a carpenter who built a workshop on it and was paying her rent. She also rented part of it to someone who operated a car wash thereon. She lived in Ibadan with her husband for many years. She discovered at a stage that the 2nd appellant was laying claim to the property. She instructed her lawyer to write to him to quit. Soon afterwards she discovered that he had sold the property to the 1st appellant and absconded. She therefore instituted an action at the trial Court seeking the following reliefs by her Further Amended Statement of Claim dated 23/9/2005:

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“That she is entitled to a Statutory Right of Occupancy in respect of that piece or parcel of land measuring more than 50 feet by 100 feet including two rooms of the main house known as No. 48 Dawson Road, Benin City, being part of the property she received from her father Omwenke Agho as gift inter vivos and later formed part of the inheritance from her father Onwenke Agho (deceased) as at 1947 or thereabout.

2. N8,000,000.00 (Eight Million Naira) damages for trespass in that on or about the 17th day of April, 2003, the second defendant, without the consent of the plaintiff, purportedly sold and or leased the plaintiff’s land to the 1st defendant who pulled down the two rooms and also fenced round the empty land (sic) property of the plaintiff, lying and situate at No.48 Dawson Road.
3. Perpetual injunction to restrain the defendants or their agents from developing the two rooms apartment and empty land property of the plaintiff
4. In the alternative, N25,000,000.00 (Twenty-five Million Naira) compensation for the two rooms apartment and measuring more than 50 feet by 100 feet lying at 48 Dawson Road, Benin City, belonging to the plaintiff. Shown on the survey plan pleaded.”

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In their Amended Joint Statement of Defence, the appellants pleaded that after the 2nd appellant’s father’s death and burial in 1948, his property was shared among his six children by the Okaegbe in the presence of witnesses. That the larger house (the Idiogbe) was shared to Ehimwenmwen, the eldest son, while the 2nd appellant, as the second son, was given the smaller house at 48 Dawson Road along with the undeveloped land beside it and a rubber plantation.

According to the appellants, the respondent was given a rubber plantation and a coconut tree. It was their contention that they had remained in undisturbed possession of the property and land shared to the 2nd appellant and denied the respondent’s claim that the property was shared during their father’s lifetime. They maintained that the respondent had never exercised any right of ownership over any part of the house and premises at 48 Dawson Road and contended that the carpenters who were once on the land were the 2nd appellant’s tenants. They also denied damaging any part of the land.

At the trial, the respondent called six witnesses and testified on her own behalf as PW7.

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The appellants testified on their own behalf and called two other witnesses. The 1st appellant testified as DW4 while the 2nd appellant testified as DW1. At the conclusion of the trial and after considering the addresses of learned counsel, the learned trial Judge entered judgment in favour of the respondent as follows:

1. “I declare that the Plaintiff is the person entitled to a statutory right of occupancy in respect of that piece or parcel of land with an area of 474 sq. metres situate at No 48 Dawson Road, Benin City and verged red in litigation survey plan No. ISO/ED/D38/2005 of 30/8/2005 admitted as Exhibit P2 in this (sic) proceedings.
2. The sum of N200,000.00 damages for trespass.
3. A perpetual injunction restraining the defendants, their agents from further trespass to the land.

In view of the success of the main claim, the alternative claim for N25,000,000.00 compensation for the property no longer calls for consideration.