MR. ERIC EHIKHAMETALO v. MR. AUSTIN IYARE & ANOR (2014)

MR. ERIC EHIKHAMETALO v. MR. AUSTIN IYARE & ANOR

(2014)LCN/7694(CA)

In The Court of Appeal of Nigeria

On Friday, the 11th day of April, 2014

CA/B/72/2011

RATIO

LAND LAW: EASEMENT; WHAT THE TERM EASEMENT DENOTES AND THE PRIMARY RECOGNIZED EASEMENTS

The term ‘easement’ denotes an interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose, e.g. to cross it for access to a public road. The beneficiary land is called the DOMINANT ESTATE. Whereas, the land burdened by an easement is called the SERVIENT ESTATE. Contra-distinctively, an easement, unlike a lease or license, may last in perpetuity (forever), albeit it does not accord the holder the right to possess, take from, improve, or sell the land. Easement is varied and ubiquitous. The primary recognised easements are –

(1) a right of way.

(2) a right of entry for any purpose regarding the dominant estate.

(3) a right to the support of land and buildings.

(4) a right of light and air.

(5) a right to water.

(6) a right to do some act that would otherwise amount to a nuisance and

(7) a right to place or keep something on the servient estate.

See BLACKS LAW DICTIONARY, 9TH edition 2009, @ 585 – 586. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

EVIDENCE: PROOF OF BOUNDARIES OF LAND; WHETHER A DEFENDANT CANNOT BE HEARD TO CONTEND THAT THE PLAINTIFF FAILS TO PROOF WITH CERTAINTY, THE BOUNDARIES OF THE LAND IN DISPUTE WHERE THE PLAINTIFF TENDERED IN EVIDENCE A SURVEY PLAN OF THE LAND IN DISPUTE DULY ADMITTED IN EVIDENCE WITHOUT OBJECTION

I am not unmindful of the principle to the effect that where in a land matter, the plaintiff tendered in evidence a survey plan of the land in dispute duly admitted in evidence without objection, the defendant cannot be heard to contend that the plaintiff fails to prove with certainty, the boundaries of the land in dispute. However, there is an exception to that general principle, to the effect that’s the defendant must have failed to file a counter survey plan. See ADEPOJU VS. OKE (1999) 3 NWLR (Pt.594) 154; ORODOEGBULAM vs. ORODOEGBULAM (2014) 1 NWLR (Pt.1387) 80 @ 97 paragraphs F – H. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

TORT: TORT OF NUISANCE; WHETHER AN UNLAWFUL OBSTRUCTION TO PUBLIC HIGH WAY IS PRIMA FACIE A PUBLIC NUISANCE AND WHETHER THE SAME LAW THAT IS APPLICABLE IN A PUBLIC NUISANCE IS ALSO APPLICABLE IN A SUIT BY A PRIVATE INDIVIDUAL

My reasoning is predicated upon the trite axiom, that an unlawful obstruction to a public high way is prima facie a public nuisance. A breach of building lines resulting in the obstruction of an access road constitutes a public nuisance, which may warrant the appropriate authority, e.g. the police or Attorney General of the State to file a relator action.

In ABRAHAM E. IPADEOLA & ANOR. VS. ABIODUN OSHOWOLE (1987) LPELR – 531 (SC), the Supreme Court cited with approval the English case of VADERPRANT VS. MAYFAIR HOTEL CO. (1930) 1 Ch. D. 138, wherein Luxmore, J. observed, thus:

I think it will be convenient to state my view as to the law relating to the obstruction of a public highway having regard to the rights of the public who occupy premises abutting thereon. Speaking generally, the public have the right at free and unobstructed passage over the whole of a public highway. The owner of premises abutting on a public highway is entitled to make a reasonable use of that highway for the purpose of obtaining access to his own premises, and of loading and unloading goods at his premises. But the right of the public is a higher right than that of the occupier though reasonable so far as the particular business carried on by him is concerned, in fact causes a serious obstruction to the public than the private rights, and the court will interfere by restraining the continuance of the obstruction. In every case the answer to the question whether the public has been interfered with must necessarily depend on the extent of the user. In other words the question is always a question of degree. This kind of question can only be determined after a careful consideration of all the facts of the case.

Regarding the question of whether or not the same law does apply to the case of a suit by an individual, Luxmore, J; answered in the affirmative, albeit with a caveat, thus –

Again, speaking generally, I think it does but the private individual who seeks to restrain the obstruction of a public highway must in order to maintain his suit prove that he has sustained a particular damage other than and beyond the general inconvenience and injury suffered by the public and moreover he must prove that the particular damage which he has sustained is direct and substantial… In that case as in this case the action was brought by a private individual and not by the Attorney General. The private individual in this case, the 1st Respondent must therefore prove that he has been unreasonably obstructed by the action of the Appellant and he has suffered particular damages.
See VADERPRANT VS. MAY FAIR HOTEL CO. (supra) 138, referred to with approval by the Supreme Court per ESO JSC (of blessed memory) in IPADEOLA VS. OSHOWOLE (supra) @ 16 – 18 paragraphs C – B. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

MR. ERIC EHIKHAMETALO Appellant(s)

AND

1. MR. AUSTIN IYARE
2. MRS. CHARITY IYARE Respondent(s)

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.:(Delivering the Leading Judgment) The present appeal is a fall-out of the Judgment of the High Court of Edo State, Benin Judicial Division, delivered on November 12, 2010 in Suit No. B/64/2005. By the said Judgment, the court below, coram E. O. Ahamioje, J; dismissed the Appellant’s claim against the Respondent for lacking in merits. Not unnaturally, the Appellant was dissatisfied with the vexed judgment. Thus, he filed the notice of appeal thereof on January 6, 2011.

On March 23, 2005, the Appellant instituted the said suit vide a writ of summons in the court below. By the statement of claim, dated and filed on 23/3/05 along with the writ of summons thereof, the Appellant has claimed against the Respondents jointly and severally the following reliefs:

1. Creation of unhindered right of way to and from the plaintiff’s piece of land measuring 95 feet by 100 feet situate on and facing Osayi Cresecent, Ugbor, GRA, Benin City and behind No.9, Ehikhametalo Street, Ugbor, GRA, Benin City.

2. N1,000,000.00 (One Million Naira) general damages.

ALTERNATIVELY, payment of the sum of N3,500,000.00 (Three Million Naira) (sic) being the market value of the piece of land measuring 95 ft by 100 feet situate at and facing Osayi Crescent and behind No.9, Ehikhametalo Street, Ugbor, GRA, Benin City. See pages 3-5 of the record of appeal.

By the Amended Joint Statement of Defence thereof, dated 07/6/06, the Respondents denied the Appellant’s claim in its entirety, thereby contending that the Appellant has no cause of action. Thus, the Respondents urged upon the court below to dismiss the suit with substantial costs.

Pleadings having been settled by the respective parties, the suit proceeded to trial. At the end of the trial, the court below delivered the vexed judgment on 12/11/10, to the conclusive effect, thus:

On the whole, in view of the credible evidence of the right of possession and title to the land proved by the Defendants, the plaintiff who offered no modicum or scintilla of evidence of his right to the land has no right to claim the land in dispute on Osayi Crescent as access road.

In the result, I hold that the plaintiff has failed woefully to establish his claim on preponderance of evidence as required by law.

Consequently, I accordingly dismiss the plaintiff’s claim in its entirety as lacking in merit.

I award costs which I assess and fix at N10,000.00 in favour of the Defendants against the plaintiff.

The Appellant’s notice of appeal, filed in the court below on 06/01/11, was predicated upon three grounds, viz:

1) The lower court misdirected itself by misconceiving the issues, summarizing the evidence inadequately and thereby making a mistake of law.

PARTICULARS OF MISDIRECTION
a)……………….

2) The lower court erred in law when it held That “the plaintiff who offered no modicum or scintilla of evidence of his right to the land has no right to claim the land in dispute on Osayi Crescent as access Road.”

PARTICULARS

a) ………………….

b) ………………….

c) ………………….

3) That the judgment is against the weight of evidence.

The Appellant thus urged upon the court to allow the appeal and set aside the Judgment and it’s place enter Judgment in favour of the Appellant in terms of the claim thereof.

On 22/01/14, the appeal lastly came up for hearing. The learned counsel adopted the submissions contained in the respective briefs of argument thereof. Thus, resulting in reserving the appeal for delivery of Judgment. The Appellant’s brief of argument was filed by Chief R. E. O. Esite of R. E. O. Esite & Co. on 03/8/11. The Respondents’ brief was filed by Emmanuel C. Ogbu Esq. Of Oronsanye & Co. on 29/01/13, but deemed properly filed on 22/3/13.

The Appellant’s brief spans a total of 19 pages. At page 4 of the brief thereof, three issues have been formulated, to wit –

(1) Whether the learned trial Judge was right in placing reliance on Exhibit ‘E’ to determine whether the Respondents’ house was in the road or not.

(2) Whether the law requires the Appellant to prove his right or entitle to the land, that is, Osayi Crescent for it to be access road to him.

(3) Whether the entire judgment is not perverse.

The Appellant learned counsel’s submission on Issue No.1 is to the effect that Exhibit E was purportedly approved on the date it bears i.e. 2008, which consequently renders it in admissible by Section 91 (3) of the Evidence Act. See CHIEF OLUNTA ALIBO & ORS vs. CHIEF BENJAMIN OKUSIN (2003) FWLR (Pt.139) 1439; MR. AISAGBONBUOMWAN OGBAHON vs. THE REGISTERED TRUSTEES OF CHRIST’S CHOSEN CHURCH OF GOD (2001) FWLR (Pt.80) 1496 @ 1520 paragraphs D-E.

Equally submitted, that Exhibit E cannot be admissible (even) by consent of the parties. See ENGR. GOODNEWS AGBI VS. CHIEF AUDU OGBEH (2003) FWLR (Pt.169) 1245 @ 1271 paras. D – F.

The court was urged not to attach any probative value on the receipt attached to Exhibit E, as same was not pleaded by the Respondents. The reason being that documents not pleaded go to no issue and cannot thus be admissible to prove facts contained in them. See CIVIL DESIGN CONSTRUCTION NIG LTD VS. SCOR NIG. LTD (2007) WRN 81 @ 118 – 119 lines 45 – 55.

Therefore, the finding of the lower court that the Respondents tendered building plan is perverse. The court is urged to resolve the Issue No.1 in favour of the Appellant.

On Issue No.2, it’s submitted that the Appellant is only required by law to prove that the land, in dispute was a road, and that the Respondents have illegally obstructed it. Also submitted, that Exhibits A & B show that Osayi Crescent, the land in dispute is a road. Thus, Exhibits A & B having been signed by the Surveyor-General of the State, are a sufficient declaration of the land, Osayi Crescent as a road. That, the 2nd Respondent also alluded to that fact under cross examination at page 33, lines 22-25 of the Record. Page 28, lines 17 – 21 of the Record was equally alluded to, regarding the oral evidence of the Appellant, to the effect that Osayi crescent which was used as an access road, ends immediately after his plot of land.

The Appellant contended that the 2nd Respondent’s evidence at page 33, lines 26-31 of the Record has amounted to an admission that the Respondents’ house obstructs Osayi Crescent. See NWANKWO OGUANUHU vs. DR. EMMANUEL I. CHIEGBOKA (2003) FWLR (Pt.165) 512 @ 532 A – C.

According to the Appellant, by the evidence thereof, the 2nd Respondent was a pathological liar who should not be believed by the court. That by virtue of Section 125 of the Evidence Act, Exhibit E is presumed to have been made in 2008, the date it bears. The purported approval as contained in Exhibit E cannot take retrospective effect. Therefore, it’s inadmissible ab initio as document made during the pendency of the action. See OGBAHON VS. THE REGD. TRUSTEES OF GOD OF CHRIST’S CHOSEN CHURCH OF GOD (supra) @ 1520 D – E; CHIEF OKINTA ALIBO vs. CHIEF BENJAMIN OKUSIN (2003) FWLR (Pt.139) 1439 @ 1448 F – A; GOODNEWS AGBI VS. CHIEF AUDU OGBEH (supra) @ 1271 D-F.

The court is urged to hold that the Respondents’ building was illegally constructed on Osayi Crescent, and that the law does not require the Appellant to prove his entitlement to the land illegally built upon by the Respondents.

Regarding issue No.3, it was submitted that the lower court did not put the evidence led and tendered by the parties on an imaginary scale as required by law, in arriving at the vexed decision on appeal. That, the lower court misconceived the law by holding that the Appellant failed to call members of Ward A Elema Layout plot Allotment Committee and persons from the Ministry of Lands and Survey to testify on his behalf in the face of Exhibits A & B showing Osayi Crescent as a road. That, it’s the law that documentary evidence is the best evidence.

Equally contended, that the Respondents did not cross-examine the Appellant on the evidence at pages 27 28, lines 30-10. See PC OLUWADAMILOLA VS. THE STATE (2010) 15 WRN 1 @ 14 LINES 25 – 35. And that the survey plan LAED/207/93/ of 9th July, 1993 pleaded by the Respondents in paragraph 12 of the Amended Joint Statement of Defence, was not tendered in evidence. Citing Section 147 (d) of the Evidence Act, the Appellant urged the court to presume that the document either does not exist, or if tendered, would be against the Respondents’ interest.

On the whole, the court was urged to hold that the Judgment of the lower court was perverse and should be set aside. And that judgment be entered in favour of the Appellant, in terms of claim thereof.

On the other hand, the Respondents’ brief spans a total of eleven pages. At page 4 of the brief thereof, the Respondents’ counsel has adopted the three issues formulated by the Appellant in the brief thereof.

Submitting on issue No.1, the Respondents contended that the lower court did not rely heavily on exhibit E in reaching its final judgment. Rather, the Appellant failed to establish his case as required by law. That, it’s trite that he who asserts must prove his case on credible evidence. See Sections 131 – 134 of the Evidence Act; OJO VS. GHARORO (2006) vol. 138 LRCN 1652 @ 1713 K – P; AGBI VS. OGBE (2006) 139 LRCN 1739 @ 1766Z – 1767F.

Allegedly, the Appellant failed to prove a superior title and/or atleast a right of possession over the land in dispute, claimed to be an access road to Appellant’s land. See OGUNWUNSI VS. ELUSOGI (2004) All FWLR (Pt.237) 426 @ 520 A- G; AGBI VS. OGBE (supra) 1 @ 1787 p-z & 1787 EE – 1788 A-F.

That, as the lower court did not rely heavily on Exhibit E in reaching the conclusion, there was no miscarriage of justice in the said decision. The court is thus urged to resolve Issue One in favour of the Respondents, and uphold the Judgment of the lower court.

On issue No.2, it was submitted that the burden of proving the existence of the access road was placed upon the Appellant (Plaintiff). The Appellant woefully failed to establish by credible evidence as required by law. He ought to succeed on the strength of his case, and not on the weakness of the Respondents. See ONWUAMA VS. EZEOKOLI (2002) 94 LRCN 246 @ 256 U – Z.

On issue No.3, it was submitted that the vexed Judgment of the court below is not perverse. That the lower court properly evaluated and considered all the evidence of both parties before reaching its final decision. It is not every instance of slip in a judgment that could warrant the reversal of a decision. It must be of such a nature to cause real miscarriage of justice. See AGBADAMOSI VS. DAIMO (2007) 145 LRCN 504 @ 522 paragraph 00: 523z.

The court is urged to resolve Issue 3 in favour of the Respondents. Conclusively, the court is urged upon to accordingly uphold the decision of the lower court and dismiss the appeal with substantial costs.

It’s instructive that the Respondents’ learned counsel has adopted the three issues formulated by the Appellant’s learned counsel in the brief thereof for the determination of the appeal. Thus, I have deemed it appropriate to determine the appeal upon the basis of the Appellant’s three issues in question.

ISSUE NO.1:

The first issue raises the vexed question of whether the court below was right in placing reliance upon Exhibit ‘E’ to determine whether the Respondents’ house is situate on the road in dispute. The Issue No.1. relates to ground 1 of the Notice of Appeal, which is to the effect thus:

1. The lower court misdirected itself by misconceiving the issues, summarizing the evidence inadequately and thereby making a mistake.

PARTICULARS OF MISDIRECTION

(a) The lower court misdirected itself by placing reliance on an inadmissible, exhibit “E” which was purportedly approved during the pendency of the action in determining whether the Defendants’ house encroached on the Road or not despite the 2nd Defendant’s oral evidence that there is no road between their house and the Plaintiff’s fence on Osayi Crescent.

By virtue of the statement of claim thereof, the Appellant has pleaded, inter alia, thus:

14. The plaintiff says all the plots on Elema and bounded by Osayi Crescent are 100 feet by 200 feet each with front and back gates.

15. The Plaintiff says that the back gate is on Osayi Crescent while the front gate is on Ehikhometalo Street.

16. The plaintiff says that the land measuring 100 feet by 105 feet uses the gate on Ehikometalo Street while the land measuring approximately 95 feet by 100 feet ought to use the gate on Osayi Crescent or else it will have accessibility problem.

17. The Plaintiff says that there is no road after his plot and that his plot ought to be the last plot on Osayi Crescent which has been completely blocked by the Defendants’ building.

In support of the averments thereof, the Plaintiff testified to the effect, inter alia, that –

“Before 1977, Osayi Crescent ends immediately after my plot and it was used as access road to my plot.
Exhibit ‘B’ shows Osayi Crescent is also shown on page 3 of Exhibit A.”

It is evident, that the 2nd Appellant had testified at page 32, lines 28 – 29 of the Record to the effect that –

“The building plan to the house approved by the Ministry of Land and Survey since 1994.”

The survey plan alluded in the 2nd Respondent’s evidence was admitted by the Court below. At page 71 of the Record, the lower court stated thus:-

“The Defendant equally tendered an approved building plan Exhibit ‘E’, by the Directorate of Lands and Survey, Benin City.”

As alluded to above, the instant suit was filed on 23/3/05. The Appellant testified on 15/3106 and was cross-examined on 23/4/07. Where upon, the suit was adjourned to 24/5/07 for continuation of defence. Curiously, the matter did not come up again until exactly two years thereafter – on 11/6/09, to be precise. That was indeed the day the learned counsel adopted their respective written addresses, thus resulting in reserving the vexed judgment.

In the instant case, the 2nd Respondent has confirmed to the lower court that the officials of the Ministry of Land and Survey visited the land in dispute and alleged that the Respondents were erecting their building on the road. However, according to the 2nd Respondent –

The official confirmed that our land and building was not on the access road. We started and completed the building. We packed into the house in 1998. The building plan to the house was approved by the Ministry of Land and Survey since in 1984. This is the building plan.

There being no objection by the Appellant’s counsel, Ibeneme Esq.; the lower court ruled thus:

“Court: The approved building Plan is admitted and marked as Exhibit ‘E’.

As copiously alluded to above, the claim of the Appellant is essentially predicated upon easement. By virtue of paragraphs 31 & 32 of the statement of claim thereof, the Appellant avers that –

31… the Defendants have built a dwelling house across Osayi Crescent thereby blocking the entrance and all access to the piece of land measuring approximately 95 feet by 100 feet thereby rendering the land a waste.

32. the Defendants have refused and/or neglected to allow the Plaintiff a right of way or easement to his piece of land measuring 95 feet by 100 feet despite repeated demands. Rather the 2nd Defendant has resorted to intimidation, threat and harassment of the Plaintiff.

Contradistinctively, an easement, unlike a lease or license, may last in perpetuity (forever), albeit it does not accord the holder the right to possess, take from, improve, or sell the land. Easement is varied and ubiquitous. The primary recognised easements are –

(1) a right of way.

(2) a right of entry for any purpose regarding the dominant estate.

(3) a right to the support of land and buildings.

(4) a right of light and air.

(5) a right to water.

(6) a right to do some act that would otherwise amount to a nuisance and

(7) a right to place or keep something on the servient estate.

See BLACKS LAW DICTIONARY, 9TH edition 2009, @ 585 – 586.

The access easement, as in the instant case, is a common type of easement by necessity that allows one or more persons to travel across another’s land to get to a nearby location, such as a road. It is equally termed easement of access; easement of way; easement of passage.

Essentially, the Appellant relies upon Exhibits A & B, a certified copy of the Deed of conveyance (dated 28/4/77) and the survey plan (dated 09/6/77) to establish that the two plots thereof face Ehikhametalo Street and Osayi Crescent, respectively. I have accorded an amply critical, albeit dispassionate, consideration upon the said Exhibits A & B. Exhibit A has shown that the plot was not demarcated. Exhibit B clearly shows that the plot was demarcated into parts -A & B. In his examination in-chief, the Appellant told the court that –

“The entire parcel of land is divided into 2 equal portion known as portion ‘A’ and portion ‘B’. The portion marked as ‘A’ on Exhibit B faces Ehikhometalo Street while portion ‘B’ has an existing gate at Osayi Street.”

See page 26, lines 16 – 18 of the Record.

Ironically, however, on the faces of Exhibits A & B, the names of Ehikhametalo Street and Osayi Crescent did no feature at all. What actually featured on both sides of Exhibits A & B were “proposed Road”. Exhibit B was dated 09/6/77. However, there is no indication at all on the face thereof to confirm that Exhibit B was approved by Government for the demarcation of the land (shown in Exhibit A) into two plots as claimed by the Appellant. It is trite law, that the Appellant has the onerous duty of proving his case against the Respondents, on the basis of a preponderance of evidence, or the balance of probabilities. See ATANE VS. AMU (1974) 70 SC 227; ONUKA VS. OMOGUI (1992) 9 LRCN 689; NWANKA vs. EWULU (1995) 7 NWLR (Pt.407) 269; EZEMBA VS. IBENENE (2004) 122 LRCN 5163.

What’s more, it’s equally a well settled principle, that the Appellant (as plaintiff) must predicate the success of the claim thereof on the strength of his case, and not upon the weakness of the defence alone.

In the instant case, it’s evident on the face of the records that the Respondents did not merely rest on their oars. They vehemently objected to the fact that the land in dispute was an access road as claimed by the Appellant. They equally tendered Exhibits, D, C, & E in support of the defence thereof. Exhibit D in particular was the certificate of transfer of the plot, dated 28/03/78. The 2nd Respondent gave evidence to the effect, inter alia, that they laid the foundation of the building in 1992 which however, the Appellant’s late father destroyed. Consequent upon which the Appellant’s father was charged to the magistrates court for the offence of malicious damage vide Exhibit C.
They later resumed construction in 1997 which was completed and packed into the house in 1998.

Most especially, Exhibit E, the Respondent’s survey plan, is very instructive. It is evident vide Exhibit E, that the Respondents applied for the proposed construction of the land thereof. Exhibit E was dated 03/02/94 and duly registered as:-

“PLAN REG. NO.152/94
MLS, BC…3-2-94.”

However, it’s true that the said Exhibit E was not duly approved until on 03/5/06 thus:

APPROVED
J.E.A. IKHALO
FOR GOVERNOR
Ministry of Lands, Survey & Housing
BENIN CITY
Date… 03/5/06

In resolving the issue of whether or not Exhibit E is admissible, I have deemed it expedient to refer to the provision of section 125 of the Evidence Act, thus:

When any document bearing a date has been proved, it is presumed to have been made on the day on which it bears date and if more documents than one bear date on the same day, they are presumed to have been executed in the order necessary to effect the object for which they were executed, but independent proof will be required if the circumstances are such that conclusion as to the date might be practised, would if practised, injure any person, or defeat the object of any law.

Thus, on the face of Exhibit E, there is no doubt that the Respondents’ building has been approved and Osayi Crescent clearly laid out as a road.

Contrariwise, Exhibits A & B, the Appellant’s survey plans, merely showed “proposed Roads”. No evidence to prove that the two exhibits were approved by the Government prior to the determination of the case by the lower court. I agree with the lower court, that an access road does not (merely) evolve overnight through survey plans (Exhibits A & B), prepared on the instructions of the Appellant’s father. It behoves the Appellant to prove his claim, vide credible evidence, of how the land in dispute was created as access road on Osayi Crescent.

The Appellant has testified at page 28, lines 22 – 30 of the Record thus:

When the Defendant was about erecting the present building, my late father called their attention and told them that parcel of land has been a road and they should not build on it. The Defendants ignored my late father’s advice and continued their building. When my late father discovered that the Defendants built on the land, my father declared it a private nuisance. My father removed the foundation wall. The Defendants arrested my father with police. My father was charged to court and he was discharged and acquitted on the 26/10/92.

Arguably, the above piece of evidence clearly shows the extent to which the Appellant’s father (may his soul rest in peace) resorted to private self-help in preserving his unilateral declaration of the land in dispute as an access road. The action of the Appellant’s late father was most regrettable, to say the least!
He ought not to have taken the law into his hands, in the first place.

Regarding the question of whether or not the same law does apply to the case of a suit by an individual, Luxmore, J; answered in the affirmative, albeit with a caveat, thus –

In the instant case, it’s so obvious, as alluded to above, that the Appellant has woefully failed to prove that the particular portion of the land in dispute was approved by the Government to be part of Osayi crescent in question. Resultantly, the answer to Issue No. 1 is in the affirmative, and the same is hereby resolved against the Appellant.

ISSUE NO.2:

The second issue raises the vexed question of whether or not the law requires the Appellant to prove his right or title to the land in dispute, that is, Osayi Crescent, for it to be access road to him. I think, in view of the fact that the first issue has been resolved against the Appellant, the second issue must equally be resolved against the Appellant. As extensively dealt with under issue No.1, it’s rather obvious that the Appellant has failed to prove by credible evidence, as required by law, that he had the right of access to the road in question. In the case of OGUNWUNSI VS ELUSOGI (supra), cited and relied upon by both learned counsel, it was held by this court at 517 paragraphs D – E, thus:

In a claim for right to access road, in order to succeed, the claimant must prove: –

a. That the land in dispute has been created a road,

b. That the Defendant has interfered with the use of the road by illegally obstructing it.

In the instant case, the Appellant cannot rely on Exhibits A & B because the said exhibits were not approved by Government as required by law. Both exhibits A & B were in respect of ‘Proposed Roads’, thus have no specific bearing whatsoever to Osayi Crescent in question. Contrariwise, Exhibit E relied upon by the Respondents was officially registered since in 1994 and duly approved by the approving authority, the State Governor, on 03/5/06. What’s more on the face of Exhibit E, there is no indication that the construction of the Respondents’ house has contravened the layout plan duly approved by Government.

Thus, in the light of the Appellant’s failure to prove a better title or right of access to the land in dispute, the second issue must be, and same is hereby, resolved against him.

ISSUE NO.3:

The 3rd issue raises the question of whether the entire Judgment of the lower court appealed against is not perverse.

Inarguably, having resolved both issues 1 & 2 against the Appellant, it goes without saying that issue No.3 must equally fail. In light of the foregoing postulations, there is every cogent reason for me to hold that the vexed Judgment in question is not perverse.

It’s trite, that a perverse (verdict) essentially denotes a court (or jury) verdict that is so manifestly contrary to the evidence, to the extent that it justifies the appellate court to set it aside and order for a new trial denovo. See BLACK’s LAW DICTIONARY 9th edition 2009 @ 1697.

Indeed, the principle has long been settled, that a finding, decision, or verdict of a court is said to be perverse when it’s not merely against the weight of evidence, but is altogether against the evidence. See NEPA vs. ALLI (1993) 11 LRCN 406 @ 409.

In the instant case, having critically, albeit dispassionately, considered the record of appeal, as a whole, there is every cogent reason for me to hold that the lower court has properly evaluated the evidence adduced by the respective parties before reaching the decision thereof. In my considered view, the Appellant has woefully failed to adduce any material flaw or mistake in the said judgment that would warrant this court to set aside the decision of the lower court. In any event, the law is well settled, that it’s not every slip or mistake in a Judgment that would compel the appellate court to reverse or set aside the decision of a lower court. Indeed, such a slip or mistake must be of a significant nature as to cause a real miscarriage of justice. This far reaching trite principle has long been reiterated in a plethora of authorities, including AGBADAMOSI VS. DAIRO (2007) 145 LRCN 504 @ 522 & 523 paragraphs OO – Z

Resultantly, Issue No.3 equally fails, and it’s hereby resolved against the Appellant.

Hence, having resolved all the three issues against the Appellant, there is no gainsaying the fact, that the instant appeal grossly fails, and it’s hereby dismissed by me. The judgment of the High Court of Edo State, Benin Judicial Division, delivered in Suit No.B/64/2005 on November 12, 2010 by E. O. Ahomioje, J; is hereby affirmed.
The Respondents shall be entitled to costs of N30,000.00 against the Appellant.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have read in draft the lead judgment prepared by my learned brother, Saulawa, JCA; and I agree that the appeal is unmeritorious. Therefore, I too dismiss the appeal. The judgment of the lower court delivered on 12/11/2010 in Suit No.B/64/2005 is hereby affirmed. I also abide by the order regarding costs as contained in the lead judgment.

TOM SHAIBU YAKUBU, J.C.A.: I had the privilege of reading the draft of the judgment prepared and rendered by my learned brother I. M. M. SAULAWA, J.C.A., with whom I agree that this appeal has no merit and ought to fail.

Undoubtedly, Exhibits A and B which were with respect to “Proposed Roads” could not have been tied to Osayi Crescent, Ugbor, GRA, Benin City. Hence the appellant’s claim in no way could have succeeded at the court below. The claim had no plank to stand upon. And what is more, the respondent’s own Exhibit E, clearly stood on a strong wicket, thereby drowning the effect, if any, of appellant’s Exhibits A and B which referred to Proposed Roads which were inchoate. The learned trial Judge was right on target in relying on Exhibit E, to find for the respondent. I agree entirely with him.
It is for this and the more detailed reasoning of his Lordship in the lead judgment that l, too dismiss this appeal.

I affirm the well considered judgment of E. O. Ahamioje, J., in Suit No.B/64/2005 delivered on 12th November, 2010.
I adopt the order as to costs contained in the lead judgment, as mine.

Appearances

Chief R. E. O. ESITE with him Miss J. I. Okolie and Miss H. E. OsadiayeFor Appellant

AND

A. S. Osin with Mrs. C. E. OhonbaFor Respondent