MUNIYAS NIGERIA LIMITED & ANOR v. MR. SHITTU ASHAFA & ORS
(2011)LCN/4296(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of February, 2011
CA/L/650/09
RATIO
EASEMENT: WHAT THE TERM “EASEMENT” ENTAILS : WHAT A A PARTY SEEKING TO ENFORCE HIS RIGHT TO EASEMENT MUST PLEAD AND PROVE
The term “easement” has been defined as a right annexed to land to utilize or enjoy another land owned by another person in a particular manner and it may sometimes give additional right to or prevent the owner of the dominant tenement from utilizing his own land in a particular manner. see okunzua v. Amosu (1992) 6 N.W.L.R. (pt.247) 416, It has to be noted that this right to an easement is usually inclusive and not exclusive. It confers its owner no proprietory or possessory right in the land affected, but merely imposes a definite and limited restrictions upon the proprietory rights of the owner of the land. Put in simple language, an easement is a right attached to land to utifize other land of different ownership in a particular manner not involving the taking of any part of the natural produce of the land or of any part of its soil or to prevent the owner of the other land from utilizing his land in a particular manner. In legal parlance, the land benefiting from an easement is called the dominant tenement while the land burdened by an easement is called the servient tenement. Although the right to easement may last forever, it does not give the holder the right to possess, take from, impose or sell the land. See olusanya v. osineye (2001) 13 NWLR (pt.730) 298; Okunzua v. Amosu (Supra). From the definition of what constitutes easement, a party seeking to enforce his right to easement must plead and prove the following: – 1. that he is the owner of the dominant tenement; 2. That the defendant is the owner of the servient tenement; 3. That it is the act or action of the defendant which deprive him of the enjoyment of his right to easement. 4. That the said right was created by grant or that it has arisen by prescription from time immemorial. I need to emphasis here that where a party claims the right to exclusive and restrictive use of a piece of land, it is not an easement. PER JOHN INYANG OKORO, J.C.A
PLEADING : WHETHER IT IS THE DUTY OF A TRIAL JUDGE TO FILL THE GAP AND DECIPHER WHAT IS NOT SPECIFICALLY PLEADED
…it is not the duty of the trial Judge to fill the gap and decipher what is not specifically pleaded, thereby denying the Appellants the opportunity of specific denial and adducing evidence in support of the averment. See Oshodi v. Eyifunmi (2000) 12 N.W.L,R, (pt.584) 294. PER JOHN INYANG OKORO, J.C.A
PLEADING : POSITION OF THE LAW WHERE THE PLEADING OF A PARTY IS BEREFT OF ESSENTIAL AVERMENTS TO SUSTAIN ANY EVIDENCE THEREOF
In Mobil Producing Nig. Unlimited v. Ajuah ( 2002) FWLR (pt.107) 1196 at 1218 para F G, it was held inter alia that: “where a pleading is defective or bereft of essential averments, it could constitute a definite guarantee for the failure of the party who presents the pleadings for he cannot lead evidence in any fact he did not aver in pleadings”. PER JOHN INYANG OKORO, J.C.A
EASEMENT : WHETHER EASEMENT IS THE RIGHT OF A PERSON TO THE EXCLUSIVE AND RESTRICTIVE USE OF A PIECE OF LAND
The Supreme Court, in Okunzua v. Amosu (Supra) had held that where a person claims the right to exclusive and restrictive use of the piece of land, it is not an easement. PER JOHN INYANG OKORO, J.C.A
UNCHALLENGED / UNCONTROVERTED EVIDENCE: POSITION OF THE LAW WHERE EVIDENCE IS UNCHALLENGED AND UNCONTROVERTED
Where evidence is unchallenged and uncontroverted, it is deemed admitted and the court is bound to act on it, except it is manifestly unreliable. See Magaji v. Nigerian Army (2008) 8 NWLR (pt.1089) 338 S.C.; Afribank Nig. Ltd. v. M. Enterprises Ltd. (2008) 12 NWLR (pt.1098) 223. PER JOHN INYANG OKORO, J.C.A
PLEADINGS: WHETHER A TRIAL COURT IN GIVING ITS JUDGMENT CAN DEPART FROM THE CASE PLEADED AND PROVED BY PARTIES
It is now well settled that a trial court will not depart from the case pleaded and proved by parties to give Judgment on matters which are neither pleaded nor constitute issues as settled in the pleadings. See Lemonu v. Ali Balogun (1975) 3SC, 169. PER JOHN INYANG OKORO, J.C.A
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
1. MUNIYAS NIGERIA LIMITED
2. ALHAJI Y.A. INOUSSA Appellant(s)
AND
1. MR. SHITTU ASHAFA
2. MR. ISIAKA BADA
3. ALHAJI ALADE SHONIBARE
4. RASAKI DAWUDU
5. MR. SAWAWU SHONIBARE Respondent(s)
JOHN INYANG OKORO, J.C.A (Delivered the Leading Judgment): This is an appeal against the Judgment of a Lagos state High Court in Suit No. LD/2162/04 delivered by O.A. Taiwo, J. on 24th November, 2006. The Respondents, who were claimants at the court below, were asking for the following reliefs as contained in the last paragraph of their statement of claim: –
” 1. The claimants claim the right of easement on the piece and/or parcel of land directly facing 46 , Ashog bon Street, Lagos, the property of the 1st 3rd claimants which same piece or parcel of land is verged Blue in the survey plan attached to the deed of indenture registered as No. 98 page 276 in vol.122 of register of deeds kept in the Land Registry Lagos in respect of the property known, situate and being at 46 Ashogbon Street, Lagos,
2. An order directing the immediate removal of the obstruction of the rights of easement by the Defendant, their agents, assigns workmen and privies forthwith or by any other agents of the Lagos State Government.
3. An order of perpetual injunction restraining the Defendants either by herself, assigns, agents, workmen and or Preview from further obstructing the claimants right to easement of the piece and parcel of land the subject matter of this suit.
4. Cost of this action”.
The Appellants in their Statement of Defence denied the claim.
A synopsis of the facts of this case are that the Respondents are all the principal members of the owners of the building/premises situate, lying and being at No. 44 and 46 Ashogbon Street, Lagos. By virtue of a deed of indenture dated 3rd September 1918, the property aforementioned was conveyed to one Yusufu Alli, his heirs and assigns by purchase in fee simple; the said Yusufu Alli being the son of Alli Idosu, the 9th Eletu Odibo of Lagos. The 1st 3rd Respondents are the descendents of the said Yusufu Alli. The piece or parcel of land in dispute is said to be the common air space, which rights of easements are jointly enjoyed among other owners of the buildings in the precinct by the 1st 2nd, 3rd , 4th and 5th Respondents. Since 1918, the Respondents have had a common usage of this land during Festivals such as Eyo, Ileya and installation of traditional Chiefs. The Appellants who are property developers, sometime in December, 2004, according to the Respondents, forcefully entered into the piece and parcel of land and commenced development project obstructing the rights of easement of the Respondents’ The Appellants turned down all entreaties made to them by the Respondents.
The Appellants however contend that this piece of land in dispute is No. 42A Ashogbon street, Lagos, has been, and still is the property of the Eletu Odibo Chieftaincy family from time immemorial. That the land has been in the said family’s possession undisturbed for over the past 100 years. That this parcel of land was leased to the 1st Appellant by the Ogaunso Ruling House of the Eletu Odibo Chieftaincy family. Upon the said lease, the Appellants commenced the development of the land after securing due approval from the relevant departments of the Lagos State Government. Also that the Lagos State Urban & Regional Planning Board approved the building plan and the required space between the Respondents’ property and the building under construction.
Finally, the Appellants deny that the parcel of land was ever used for Eyo or Ileya traditional festival or installation of traditional Chief.
At the close of trial, the learned trial Judge on 24th November, 2006, entered Judgment for the Respondents in part as follows:
“In conclusion I find as follows:
1. That construction of a three storey building by the Defendants infringes the claimants right to air
2. The law does not recognize a right of common usage for festival
3. An order directing the immediate removal of the obstruction of the right of easement by the Defendant, his agents, workmen and privies forthwith or of other agents of Lagos State Government is hereby refused.
4. An order of perpetual injunction restraining the Defendants either by himself, assigns, agents, workmen and or privies from further obstructing the claimants’ right to easement of the piece or parcel of land the subject matter of this suit is hereby granted “.
Dissatisfied with the above Judgment of the learned trial Judge, the Appellants filed Notice of Appeal dated and filed on 15th July 2009. This notice was filed sequel to the order of this Court made on 8/7/09 extending the time for the Appellants to appeal within 14 days with effect from the said 8/7/09. The said Notice contains five grounds of appeal and is against some aspects of the Judgment. From the five grounds, the Appellants have distilled four issues for the determination of this appeal. The issues are:
“1. Whether it is not wrong in law for the trial judge to grant a relief that is not specifically pleaded and/ or proved to wit that the construction of a three storey building by the Defendant’s infringes the claimants right to air. From Ground 1.
2. Whether the Claimants/Respondents were able to establish or prove any infringement on their right to air or they were only able to prove right to common usage for festival (Grounds 4 & 5).
3. Whether the court can grant a perpetual injunction restraining an act that is already completed. (Ground 3).
4. whether the learned trial Judge was right in granting an order of perpetual injunction where the Claimant/Respondents, have failed to establish a specific relief and/or satisfy the general principle governing the granting of an order of perpetual injunction. (Ground 2)”.
The Respondents have however formulated three issues for determination thus:
” 1. whether the claimants by their pleadings, evidence, exhibits A & A1 are not entitled to the reliefs granted them by the Honourable Trial Judge.
2. Whether the Respondents failed to establish or prove any infringement on their right to air.
3. Whether the trial Judge was wrong in granting an order of perpetual injunction when he found that the Appellants infringed on the right to air of the Claimants by the construction of a three story building”.
As I see the facts and Judgment in this case with regards to the grounds of appeal filed, I shall determine this appeal based on the four issues submitted by the Appellants, after all, it is their appeal. Issues one and two in the Appellants’ brief and issues one and two in the Respondents’ brief are saying the same thing and shall be taken together.
On the first issue, the learned counsel for the Appellants, Ademola Ekundayo Esq. submitted that the learned trial Judge was wrong to have held that the construction of the building by the Appellants infringes on the Respondents’ right to air as the Respondents failed to adduce any evidence whatsoever to prove that their right to air has been infringed.
Moreso, that the Respondents failed to plead specifically what type of easement was being infringed but merely that their right to use the space for festival was infringed. He submitted further that the right of usage for festival is vague and unknown to law. Again, it was his contention that the Respondents failed to prove how their right to air was being infringed upon. Referring to Atkins Court Forms and Precedent, 2nd Edition, Vol . LT page 75, Form 56, “Statement of Claim for Interference with Free Passage of Air”, learned counsel opined that the Respondents Writ of Summons and Statement of Claim are bereft of essential averments or particulars of easement to air or any easement at all. He relies in the case of Mobil producing Nigeria unlimited v. Ajuah (2oo2) FWLR (pt.Lo7) 1196 at 1219 para P-G.
It was the further submission of learned counsel that none of the two witnesses called by the Respondents gave evidence as to how and where their right of easement to Air has been infringed upon. That the Respondents failed to show how their ventilation, windows, hole or shaft was blocked by the Appellants’ building. Rather that it was the court below, after refusing the Respondents’ claim on easement as to festivals, made a case of easement as to air for the Respondents. He submitted that it is not the duty of the court to make a case for the parties. He relies on the cases of Iheanacho & ors. vs. Chikene & ors. (2004) 11 MJSC, 35 at 54; Ngene v. Igbo (1991) 7 N.W.L.R. (pt.203) 358 at 369 370; Aderaja v. Atade (1999) 6 N.W.L.R. (pt.608) 544 at 559 and Lemonu v. Ali Balogun (1975) 3SC 169.
Appellants’ counsel was also of the view that the court below erred in entering Judgment for the Respondents after it found that the reliefs sought by the claimants are not in any way specific. That the attempt by the court below to “decipher” from the pleadings a claim of right to common air space was over-reading on the Appellants. It is not the duty of the trial Judge to fill the gap for any party, he opined, relying on the cases of oshodi v. Eyifunmi (2000) 12 NWLR (pt.684) 294; Ukaegbu v. Ugoji (1991) 7 NWLR (pt.196) 127; Florence olusanya v. olufemi Olusanya (1985) 3 SC 41 at 56 – 57.
on the second issue, learned counsel, apart from adopting his arguments on the first issue, submitted that the 4th and 5th Respondents had no claim before the trial court as there is no relief in their favour. That on a visit to the locus, it was discovered that the Appellants’ building is not in front of No. 46 which belongs to the 1st – 3rd Respondents but is in front of No. 44 which belongs to the 4th & 5th Respondents who have no relief against the appellants.
Referring to several paragraphs of the statement of claim and the witness statement of the Respondents, two witnesses, the learned counsel for the Appellants submitted that the Respondents gave evidence to show that they owned this land which they use for festivals and installation of Chiefs. That although the learned trial Judge held that they cannot claim easement over land which they say is theirs, he nevertheless found against the Appellants. He urged this court to hold that the Respondents failed to prove rig ht of easement to air but that of festival.
On the whole, learned counsel urged us to resolve issues one and two in favour of the Appellants.
In his reply, the learned counsel for the Respondents, Lawal A. Keshinro Esq. submitted that contrary to the position taken by the Appellants’ counsel, the Respondents, in paragraph 12 of the statement of claim pleaded that the right of easement infringed is the common air space which they enjoy. That at page 1 lines 28 of Exhibits A & A1, the right to common air space, recreation and social usage of the piece of land in dispute is recognizable as a right of easement. That Exhibit A being a document in support of pleaded fact need not be specifically pleaded once sufficient materials in respect of the document are averred, citing the cases of orjiekwe v. orjiekwe (2001) FWLR (pt.338) 1181; Allied Bank v. Akubueze (1997) 7 NWLR (pt.509) 374 and First Bank of Nig. Plc v. Tsokwa (2oo4) 5 NWLR (pt.866 ) 271.
It was his contention that the learned trial Judge rightly inferred from Exhibits A & A1 that the right of easement to common air space arise by implication of law from the Deed of Assignment dated 3/9/18. He submitted that the right of easement is one identifiable and recognizable by the
claimants’ title citing the case of Da Rocha v. Hussain (1958) SCWLR 280, (1959) 3 PSC 8e.
Still on Exhibit A, the Respondents’ counsel submitted that the court has a duty to construe the provisions of an agreement so as to discover the parties, intention relying on the case of SCOA Nig. Ltd v. Boarder Ltd (1990) 3 NWLR (Pt. 139)399.
On issue 2, as to whether the Respondents proved the infringement of their right to air, to entitle the trial court to grant prayer I, learned counsel submitted that the Respondents gave evidence to the effect that the right to common air space passes to the Respondents with the assignment of the land to them in 1918. He contended that the construction of the three storey building by the Appellants was an infringement to their right of air. That since the appellants have not denied the right of the Respondents to easement, it is deemed admitted. That as was rightly held by the court below, the right to easement is enjoyed by the Respondent as part of their rear property, relying on the case of De Facto Bakeries & catering Ltd. v. Ajirore (1974) 1 All NLR (pt.11) 395.
Learned counsel for the Respondents further submitted that the learned trial Judge was right to hold that the right of easement was a grant from 1918 deed of indenture and that a right to air and a right of common usage during festival was proved’ He urged the court to resolve the two issues against the Appellants.
The term “easement” has been defined as a right annexed to land to utilize or enjoy another land owned by another person in a particular manner and it may sometimes give additional right to or prevent the owner of the dominant tenement from utilizing his own land in a particular manner.
see okunzua v. Amosu (1992) 6 N.W.L.R. (pt.247) 416, It has to be noted that this right to an easement is usually inclusive and not exclusive. It confers its owner no proprietory or possessory right in the land affected, but merely imposes a definite and limited restrictions upon the proprietory rights of the owner of the land.
Put in simple language, an easement is a right attached to land to utifize other land of different ownership in a particular manner not involving the taking of any part of the natural produce of the land or of any part of its soil or to prevent the owner of the other land from utilizing his land in a particular manner. In legal parlance, the land benefiting from an easement is called the dominant tenement while the land burdened by an easement is called the servient tenement.
Although the right to easement may last forever, it does not give the holder the right to possess, take from, impose or sell the land. See olusanya v. osineye (2001) 13 NWLR (pt.730) 298; Okunzua v. Amosu (Supra).
From the definition of what constitutes easement, a party seeking to enforce his right to easement must plead and prove the following: –
1. that he is the owner of the dominant tenement;
2. That the defendant is the owner of the servient tenement;
3. That it is the act or action of the defendant which deprive him of the enjoyment of his right to easement.
4. That the said right was created by grant or that it has arisen by prescription from time immemorial.
I need to emphasis here that where a party claims the right to exclusive and restrictive use of a piece of land, it is not an easement.
In the instant case, there is no doubt that the Respondents who were Claimants at the court below are the owners or beneficiaries of the dominant tenement. As regards the servient tenement, there is a problem as the Respondents contend that the servient tenement also belongs to them. The statement of claim of the Respondents appears to have failed to clearly state what the Respondents were asking for. The learned trial Judge has this to say on the issue on page 186 of the Record of Appeal’ “I have to agree with the learned counsel’s
Observation in this issue. It is my respectful view that learned counsel for the claimants failed to draft the statement in proper and professional manner. The pleadings lacked precision and proper legal terminology”.
I agree with the learned counsel for the Appellants that the court below erred when, by way of conjecture, filled in the gaps in the pleading and made a case for the Respondents when it further stated: –
“Notwithstanding however, one was able to decipher from the pleadings a claim for a right to common air space (paragraph 7 of statement of claim) and a right of common usage during festival (paragraph 11 of the statement of claim)”.
I think this was quite unnecessary because it is not the duty of the trial Judge to fill the gap and decipher what is not specifically pleaded, thereby denying the Appellants the opportunity of specific denial and adducing evidence in support of the averment. See Oshodi v. Eyifunmi (2000) 12 N.W.L,R, (pt.584) 294.
The use of the word “decipher” by the learned trial Judge is a clear indication that the pleading was bereft of essential averments to sustain any evidence thereof. In Mobil Producing Nig. Unlimited v. Ajuah ( 2002) FWLR (pt.107) 1196 at 1218 para F G, it was held inter alia that:
“where a pleading is defective or bereft of essential averments, it could constitute a definite guarantee for the failure of the party who presents the pleadings for he cannot lead evidence in any fact he did not aver in pleadings”.
In paragraph 11 of the statement of claim, the Respondents had averred as follows:-
“The claimants among with other neighbours have exercised the rights of easement on the piece and parcel of land undisturbed either by the Defendant, their agents, privies, workmen and assigns and or any other person since the execution of the deed of indenture on 3/9/1918 as right of common usage during festival, such as Eyo, Ileya and Installation of traditional Chiefs”.
Paragraph 7 of the said statement of claim states: –
“The piece and parcel of land, the subject matter of dispute is the common air space, which rights
of easements are jointly enjoyed among other owners of the building in the precinct by the 1st, 2nd, 3rd, 4th and 5th claimants who are principal members of the owners 44 and 46 Ashogbon Street, Lagos”.
The above paragraphs 7 & 11 of the statement of claim are the only paragraphs that try to show the right of easement the Respondents were claiming. The evidence adduced to prove these averments may be summarized as follows: –
1. paragraph 16 of the 1st witness statement of the Respondents states:-
.,That I aver that the claimants among with other neighbours have exercised the rights of easement on the piece and parcel of land undisturbed either by the Defendant, assigns and or any person since the execution of the deed of indenture on 3/9/1918 as a right of common usage during festival, such as Eyo, Ileya do installation of Akaigbere traditional chiefs in Lagos which same is over 85 years ago”.
Clearly, that is the evidence in support of the averment in the statement of claim. As there is no pleading on how the Appellants have disturbed the right to the use of air in the vicinity, there is also no evidence as to how the activities of the Appellants on the land has affected the Respondents.
I note clearly that rather than lead evidence to prove that the Appellants had deprived them their right to easement as to air, they concentrated in trying to prove that the servient tenement belongs to them.
2. on page 740 of the record, the claimants, 1st witness under cross examination said:-
“I am claiming the land belong to our family since 1918. The land has been vacant for general use of the community”.
He further said:-
“the space is used for festivities when it is not being used for festivities, it is used for other things” (page 140 of the record).
3. On page 141 – 142 of the record, the 2nd claimants.
witness states under cross examination thus:
“I have right concerning the space in dispute. I have right to that space from indenture of 1918. It is a common place for everybody event. The Chiefs have their parties on that land”.
He further sates:
“we are claiming ownership of the open space.
We are owners of the open space”.
It can clearly be seen from the pieces of evidence adduced by the Respondents at the court below that they were claiming not only exclusive use of the land but also ownership of the said land. This in my opinion, cannot be easement. The Supreme Court, in Okunzua v. Amosu (Supra) had held that where a person claims the right to exclusive and restrictive use of the piece of land, it is not an easement. In fact, the learned trial Judge came to this conclusion in his Judgment when he stated on page 187 of the record that:-
“As stated earlier in this case, I am not convinced that the claimants are the owners of
No. 42A, Ashogbon Street. The fact that Exhibit
D1 & D2 bears the name of their progenitor does not prove their title to No.42A, Ashogbon Street. Besides this, the claimants cannot claim a right of easement over land that belongs to them. They cannot claim a right of easement over a parcel of land and at the same time claim to be owners of the said land”.
I agree entirely with the above postulation by the learned trial judge. I am however unable to see my way through the conclusion reached by the learned trial Judge thereafter. On the same page 187 of the record, the court said:-
“That since this court has found that the claimants cannot be owners of the open space ie (No.42A, Ashogbon Street), it then follows that Eletu Odibo Chieftaincy family have infringed the right to air of the claimants by allowing the construction of a storey building of three floors on the servient land known as No.42, Ashogbon Street, Lagos”.
With due respect to the learned trial Judge, this is not correct. In coming to that conclusion, the court failed to refer to or consider any evidence which the respondents have adduced to show that the building of the appellants is blocking any passage of air or interfering with supply of air to the respondents’ building. This is particularly so when the Appellants had pleaded and given evidence
To the effect:-
“4. That the land in question is shown in survey Plan to be Lease Agreement which was prepared by one James Okeke, a Registered Licensed Surveyor.
5. That the Lessor applied to the Lagos state Urban and Regional Planning Board for approval of the building plan before I commenced work on the land in dispute and the building plan was approved.
6. We gave the required passage space before commencing the construction of the building on the land in dispute”.
(See page 29 of the record on Appellants’ witness statement on oath No. 2).
The above evidence of the Appellants was never contradicted or controverted in any way. Even a visit to the locus has not disproved this piece of evidence that enough space as approved by relevant Government authorities had been given for the passage of air to the Respondents’ buildings. Where evidence is unchallenged and uncontroverted, it is deemed admitted and the court is bound to act on it, except it is manifestly unreliable. See Magaji v. Nigerian Army (2008) 8 NWLR (pt.1089) 338 S.C.; Afribank Nig. Ltd. v. M. Enterprises Ltd. (2008) 12 NWLR (pt.1098) 223.
There was nowhere in the Respondents’ pleadings or evidence showing, how their ventilation, windows or hole was blocked by the Appellants’ building. It was therefore wrong for the learned trial Judge to make a case of right to air for the Respondents. The learned trial Judge on page 13 of the Judgment (at p.188 of the Record) held that right to air may arise by implication of law from Exhibit A, the Deed of Assignment dated 3/9/1918. I am however of the view that although the said exhibit may prove the right of the Respondents to the dominant tenement, it does not in any way show the infringement on any right to air through a defined aperture. This ought to have been pleaded and proved, but it is lacking in the pleadings and evidence. It is now well settled that a trial court will not depart from the case pleaded and proved by parties to give Judgment on matters which are neither pleaded nor constitute issues as settled in the pleadings. See Lemonu v. Ali Balogun (1975) 3SC, 169.
I hold a strong view that the mere tendering of a Deed of Indenture did not prove any infringement on the right of easement to air of the Respondents. At best, it was an attempt to prove that the land should be vacant for use for festivals, masquerades and even ownership. The learned trial Judge agreed that the Respondents were trying to prove ownership but they could not convince the court. Again, there was no relief sought by the 4th & 5th Respondents against the Appellants and yet the learned trial Judge granted them. This is unfortunate. On a visit to the locus, it was discovered that the Appellants’ building is not even in front of No. 46 that belongs to the 1st 3rd Respondents. The building is said to be in front of No. 44 which belongs to the 4th and 5th Respondents who have no relief against the Appellants.
On page 149 of the record contains the visit to the locus where DW2 showed the court that “the property in dispute is not in front of No. 46 Ashogbon Street”. This evidence was not challenged at the locus by anybody. This means it was accepted and yet the court below gave Judgment in favour of the Respondents. This is unacceptable
On the whole, it is crystal clear that the Respondents, apart from failing to plead essential averments in respect of right to air in the servient tenement, also failed to prove how the Appellants deprived them of the said right. Rather, they decipated their energy in trying to prove ownership of the land which the court below rejected. Apart from that, the court below tried to “decipher” right to air from the pleadings which made the court to fill the gaps for the Respondents after holding that there is no easement known as right of usage for festivals and installation of Chiefs. In fact the claim of exclusive ownership of the servient tenement by the Claimants/Respondents has taken this matter out of the realm of easement as there cannot be any easement where the Claimant claims the right to exclusive or restriction use of the piece of land. See Okunzua v. Amusu (supra).
Issues one and two considered together are hereby resolved in favour of the Appellants.
I shall now consider issues 3 and 4 together, both relating to the order of perpetual injection granted against the Appellants. It was the contention of the learned counsel for the Appellants on issue 3 that the learned trial Judge, having refused to order the removal of the Appellants’ building which was already in place, it was wrong to order perpetual injunction against an act which had been completed. That the order will amount to an order in vain as the construction of the building has already been completed. He cited the cases of Odundu v. Oseni (1998) 13 NWLR (pt 580) 103 and Peter v. Okotie (2002) FWLR (Pt 110) 1814.
On issue 4, learned counsel submitted that the pleading of the Respondents were not specific as to what relief they sought, and that even if the court below considered the pleadings as adequate, there was no evidence before the Court that should warrant the granting of perpetual injunction. It was his further submission that when the act complained of has ceased or has been completed the court will not grant a perpetual injunction relying on the case of John Holt v. Holts African Workers Union of Nigeria & Cameroun (1963) All NLR 179) 179; Adedeji v. Akintaro (1991) 18 NWLR (Pt 208) 209. It was his final submission that perpetual injunction is an ancilliary relief granted to protect an established right in law or in equity. That if the said right has not been established as in this case, no injunction should be filed, citing the case of Lawal v. Adeniyi (1997) 3 NWLR (Pt 494) 457 at 464.
He urged the court to resolve these issues in favour of the Appellants.
The learned counsel for the Respondents who encapsulated the two issues in his issues 3, submitted that the learned trial Judge was right in his granting a perpetual injunction because the Appellants continued to build the house to completion despite of the order of the lower court to stop building. That when a party has notice of a pending suit against him and he continues to build despite the notice, the doctrine of lis pendens will avail him of any defence if in the end the suit is not favourable to him, citing the case of Enekwe v. International Merchant Bank (2006) 28
NSCQ R 594. He urged this court to hold that the learned trial Judge was right to order perpetual injunction against the Appellants.
Injunctive reliefs are usually ordered to preserve the res or maintain the status quo. Of the three types of injunction usually granted i.e interim, interlocutory and perpetual injunctions, the last one has a stamp of finality. Thus it is usually granted only where a party has successfully, proved his case on the balance of probability. In view of its nature, it should not be granted on mere Speculation. This was the view of this court in Aderinan v. Alao (1992) 2 NWLR (pt 223) 350 at 372 where Tobi, JCA (as he then was) stated inter-alia:
“I have taken the trouble to draw the distinction to emphasize the nature and the almighty role perpetual injunction plays in the judicial process. In my humble View, a court of law cannot grant a perpetual injunction on a mere prima facie case. Perpetual injunction cannot be granted on speculation or conjecture on the part of the trial Judge that the Plaintiff seems to have proved its case. Perpetual injunction, because of its very nature of finality can only be granted if the Plaintiff has successfully proved his case on the balance of probability or the preponderance of evidence.”
I cannot agree more. In the instant case, the Respondents not only failed to plead essential facts or materials in respect of easement as to air but also failed to show how the Appellants deprived them of their right to air. I have already spent time to address the woeful nature of the Respondents case at the court below. I do not intend to repeat it here other than to say that there was no basis for the learned trial Judge to make an order of perpetual injunction against the Appellants.
Moreover, the Appellants having completed the building, there was nothing left to be restrained. It is trite that when an act has ceased or completed, the court will not grant a perpetual injunction. See John Holt Nig, Ltd & Anor. v Holt African workers Union of Nigeria & Cameroon (1963) 1 All NLR 385, Adedeji v. Akintaro (1991) 18 NWLR (pt 208) 209.
Finally, a perpetual injunction is an ancilliary relief granted to protect an established right in law or in equity.
Where the substantive right has not been established, as in the instant case, no injunction would be granted. See Lawal v. Adeniyi ( 1997) 3 NWLR (pt 494) 457 at 464.
The rights which the Respondents sought to establish was the right for the usage of the space for festival but the learned trial Judge held this not to be an easement. The ancilliary relief, therefore, ought to have been refused too. The order of perpetual injunction made by the learned trial Judge in the case was gratuatious and should not be allowed to stand. Issues 3 and 4 are accordingly resolved in favour of the Appellants.
Having resolved the four issues in favour of the Appellants, this appeal has merit and is hereby allowed. For the avoidance of doubt, I make the following orders:
1. It is declared that the construction of the three story building by the Appellants does not infringe on the Respondents’ right to air as there is no evidence to that effect. The declaration by the court below is set aside.
2. I affirm the Judgment of the court below that the law does not recognize a right of common usage for festival as easement.
3. I also affirm the refusal of the learned trial Judge to order immediate removal of the said building either by the Appellants or the Lagos State Government.
4. The order of perpetual injunction made by the court below is hereby set aside.
5. The Appellants are entitled to costs and I assess at N30,000.00 against the Respondents.
ADZIRA GANA MSHELIA, J.C.A I have had a preview of the lead judgment just read by my learned brother Okoro, J.C.A. I entirely agree with his reasoning and conclusion arrived thereat. My learned brother has, in my humble view dealt exhaustively with the facts and the law that I have nothing to add except to say that like him, I too, allow this appeal. I hereby set aside the declaration that the construction of the two storey building by the Appellants infringes the respondent’s right to air and perpetual injunction. I also affirm the judgment that the law does not recognise a right of common usage for festival easement and the refusal of the order for immediate removal of the said building either by the appellants or the Lagos State Government. I shall award N30, 000.00 costs in favour of the appellants.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have had the privilege of a pre study of the draft of the Judgment just rendered by My Lord J, I. Okoro, J.G.A. in the lead Judgment and entirely agree that this appeal be allowed as the learned trial Judge wrongly applied the principle governing the right of easement in favour of a party that had not proved that easement existed in his favour, in the circumstances and facts of the case.
The issuance of an order of perpetual injunction, which was a final and decisive order to be predicated only upon a finding in favour of a party that had established his claim or entitlement was also wrongly granted in the trial court’s Judgment as the court had found upon the evidence led that the Respondent’s right to air had not been proved to have been infringed by the construction of the three storey building by the Appellants. The grant of perpetual injunction was gratuitous therefore.
Accordingly, I too, abide by the Judgment and all the consequential orders made in the lead Judgment inclusive and in particular the order setting aside the order of perpetual injunction as made at the trial court.
Appearances
Ademola Ekundayo Esq. with M. shaibu Esq.For Appellant
AND
Lawal A. Keshinro Esq.For Respondent
