Madam Fumike Ojo-osagie V. Sunday Adonri (1994)

LawGlobal-Hub Lead Judgment Report

OGUNDARE, J.S.C.

Both the plaintiff, Madam Fumike Ojo-Osagie and the defendant, Sunday Adonri are first cousins; the father of Sunday was a younger brother of Fumike’s mother. Their parents are both dead. The two parents were both related to one Madam Igbinake Otote who died childless some years ago at Benin City. Madam Igbinake owned a small house on the land now know as 12, Mission Road, Benin. Adjacent to Madam Igbinake’s house and thatched together with it was another small house owned by one Suberu, a native of Ife.

Plaintiff’s mother, Madam Ayenu Ojo-Osagie who was a niece to Madam Igbinake moved with her husband, Ojo-Osagie (plaintiff’s father) from Akure to Benin and lived with her aunt, Madam Igbinake. Because of the care and attention Madam Ayenu gave to her aunt, the latter gave her thatched house to her niece as a gift inter vivos. Suberu decided to leave Benin for his home town Ife with his family and sold his house to plaintiff’s father, Ojo-Osagie. With the ownership in the two houses now in Ojo-Osagie and his wife, Ayenu.

After the death of Madam Igbinake Ojo-Osagie, demolished the two thatched houses and built on the land a house with shops, now standing on the premises and now known as 12 Mission Road. Ayenu died in 1940 leaving behind the plaintiff as her only child. Ojo-Osagie too died in 1958 without a male child, the plaintiff is his eldest daughter. And following her performing the burial rites of her parents according to Benin custom, she inherited the house, shops and premises known as 12, Mission Road.

Defendant’s father, Adomi was apprenticed by Ayenu to one Akhator Anyamu to learn driving. Adomi soon became a professional driver and when he moved from Akure to Benin, he lived with his elder sister, Ayenu and her husband , that is, plaintiff’s parents, in the thatched house given by Madam Igbinake to Ayenu. About 1929, Adomi left the house and moved to Ibiwe Street, Benin where he rented a house. He remained in the rented accommodation until 1945 when he died. After the death of Adomi, his son Sunday, that is defendant, lived with a relation called Afe. He too learned motor driving and became a professional motor driver. On his return to Benin from Ondo, the defendant approached the plaintiff in 1970 and begged for accommodation.

On the intervention of Mr. Afe. plaintiff allowed Sunday to live in a vacant room in the house at 12, Mission Road. Another room that later became vacant was also given to him to live in. In 1978, defendant called plaintiff’s tenants in the house and told them to pay rents to him rather than to the plaintiff. The tenants refused. The defendant later laid claim to the house by inheritance and started molesting the plaintiff who, in fear for her life, moved out of the premises and started living at II Mission Road. Plaintiff then instituted the action leading to this appeal claiming as per paragraph 28 of her further amended statement of claim as hereunder:

(a) A Declaration that plaintiff is in possession and therefore entitled to Statutory Right of Occupancy and/or is the proper person to apply and obtain Certificate of Occupancy in respect of No. 12, Mission Road, Benin City.

(b) An order for possession of that part of the premises now occupied by the defendant without the consent and authority of the plaintiff.

(c) Perpetual Injunction restraining the defendant, his agents, servants or privies from further interfering with, dealing or treating with anybody in respect of the said piece of land, house, shops and premises known as No. 12, Mission Road, Benin City, in any manner inconsistent with the plaintiff’s right, title and interests in the said piece of land.

(d) N2,000.00 general damages for trespass and for questioning the plaintiff’s right, title and interests in respect of the said property.)

The defendant, in his 2nd further amended statement of defence claimed that it was his father who inherited the premises in dispute from his (father’s) aunt, Madam Igbinake. He, defendant. then inherited it from his father.

The action proceeded to trial at the conclusion of which the learned trial Judge, in a considered judgment found for the plaintiff and entered judgment in her favour in terms of her claims in paragraph 28 of her further amended statement of claim, except the claim for damages for trespass which he dismissed. Being dissatisfied with this judgment, the defendant appealed to the Court of Appeal and the latter court allowed the appeal. Concluding his lead judgment, with which the other Justices that sat on the appeal agreed, Ejiwunmi J.C.A said:

“It is evident from the pleading that originally there were two separate holders of properties on the land before they were demolished and rebuilt into the present property which is the subject matter of the present dispute. It is also clear that either of the parent of the respondent bought the other property from its owners who were known as Suberu and Iroro. The appellant has not disputed that claim, and in my view it cannot be proper for him to be declared the owner of this part of the disputed property, when he has no claim or right to it. In such circumstances, it is my view that the respondent ought to be allowed to prove the extent of the area of land which she inherited as a result of the purchase of a portion of the disputed land by either of her parents. For that reason, the case would be sent back for retrial in order to determine that question alone.

The result then is that the appeal has succeeded to the extent that the respondent has not established her claim to that portion of the disputed property which she claimed that she inherited from Madam Igbinake through her own mother. The judgment and orders of the lower court including the order for costs are hereby set aside.