MRS PAULINA ARINZE VS SOYODEAMORE BAMGBOSE

CORAM

PARTIES

1. MRS PAULINA ARINZE(NEE BAMGBOSE

2. MR SHOTAYO BAMGBOSE (parties substituted for the Deceased Appellant) RISIKAT 0 BAMGBOSE by the Order of Court) Made on the 4th of February, 2013 )

APPELLANTS 

1. SOYODEAMORE BAMGBOSE

2. ALHAJI ADEGBOYEGA ISHOLA BALOGUN

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The testator made a will and devised many of his properties to his heirs including the Defendant to be held in joint and equal proportion before his death wherein two of his children Francis Adewale Bamgbose and Taiwo Pinhero were named as Executor and Executrix of the will. After the death of the testator, Francis Adewale Bamgbose, brought in one Luke Kayode Bamgbose (now deceased) with his wife to live in one of the properties known as 18 Abe Road, Onipanu, Lagos who was subsequently appointed as a caretaker/agent in respect of the said property and other underdeveloped properties on No 16 and 20 Abe Road forming part of the Estate. After the death of Luke Kayode Bamgbose, his wife and children laid claim to the said properties on the grounds that it is her husband’s share by reason of long possession.Whereupon the Plaintiffs  commenced this action claiming a declaration that the acts of the Defendant and her children in disturbing their quiet enjoyment of the plots is illegal, unlawful and an act of trespass, an award of N10 million naira as damages for trespass committed by the Defendant and perpetual injunction restraining the Defendant from further acts of trespass, molestation, embarrassment harassing threatening and disturbing the Plaintiff’s peaceful enjoyment of the properties known as Nos 16 and 20 Abe Road, Onipanu, Lagos. The trial judge entered judgment in favour of the Plaintiff. Dissatisfied with the trial court’s decision, the Defendant appealed to the Court of Appeal.

HELD

Appeal Dismissed

ISSUES

1. Whether the court ought to have committed itself on the issue of title when there was no claim for title in the claimants statement of claim.?

2. Whether the 1st claimant had a right to assign any interest in the land forming part of the estate of Augustus Are Bamgbose.?

3. Whether, the defendant/appellants had possessory right over Nos 16 and 20 Abe Road, Onipanu Lagos having been in undisturbed possession of No 18, Abe Road, Onipanu Lagos since 1979 without any let or hindrance from the 1st claimant ?

RATIONES DECIDENDI

OWNERSHIP OF LAND – LONG POSSESSION AND ENJOYMENT OF A PIECE OF LAND CANNOT RIPEN TO OWNERSHIP AGAINST THE TRUE OWNER

“It is also settled law that long possession and enjoyment of a piece of land cannot ripen into ownership against the interest of the true owner.” PER OSEJI JCA

TRESPASS – CLAIM FOR TRESPASS TO LAND

“A claim for trespass is rooted in exclusive possession and once the defendant asserts ownership of the land in dispute, title thereto is automatically put in issue and for the plaintiff to succeed, he must establish a better title than that of the defendant.” PER OSEJI JCA

TRESPASS – HOW CAN A DEFENDANT SUCCEED IN AN ACTION FOR TRESPASS

“In an action for trespass, a defendant can only succeed in defeating the plaintiffs claim if he can show that he is the one in actual possession or that he has a right to such possession.” PER OSEJI JCA

TRESPASS AND INJUNCTION – WHAT A COURT SHOULD CONSIDER IN A CLAIM FOR TRESPASS AND INJUNCTION

“In a claim for trespass and injunction it is incumbent on the trial court to consider the question of title to the land or exclusive possession”. PER OSEJI JCA

TRESPASS – WHO CAN MAINTAIN AN ACTION FOR DAMAGES IN TRESPASS

“It is also trite that only a person in possession of Land at the material time can maintain an action for damages for trespass but when the issue is as to which of the two claimants have a better right to possession or occupation of a piece of land in dispute the law will ascribe such possession and occupation to the person who proves a better title thereto. Also where two parties are on land claiming possession, trespass can only be at the suit of that party who can show that title to the land is in him.” PER OSEJI JCA

CASES CITED

Amakor Vs Obiefuna (1974) All NLR (Pt1) 119Aromire Vs Awoyemi (1972) I All NLR (Pt1) 101Da Costa Vs Ikomi (1968) I All NLR 394Fasoro Vs Beyioku (1988) 8 NWLR (Pt96) 263Hawad International Schools Ltd Vs Mima Projects Venture Ltd (2001) (2005) I NWLR (PT908) 552Mogaji Vs Cadbury (1985) NWLR (P77) 393,Monkom Vs Odili (2009) Lpel 12 (3927) CaOjomo Vs Ibrahim (1999) 12 NWLR (Pt 631) 415Okorie Vs Udom (1960) SCNLR 326Omotayo Vs Co-Operative Supply Association (2010) 16 NWLR (Pt1218) 1

STATUTES REFERRED TO

Evidence Act

CLICK HERE TO READ FULL JUDGMENT