ANOZIA v. EKEDC PLC (2022)

ANOZIA v. EKEDC PLC

(2022)LCN/16226(CA)

In the Court of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, March 14, 2022

CA/LAG/CV/651/2021

Before Our Lordships:

Obietonbara Owupele Daniel-Kalio Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Between

TONY ANOZIA APPELANT(S)

And

EKO ELECTRICITY DISTRIBUTION COMPANY PLC RESPONDENT(S)

RATIO

THE ONUS OF PROOF WHEN A PARTY ALLEGES TRESPASS ON HIS PROPERTY

WHETHER OR NOT A MERE OFFER TO SETTLE OR COMPROMISE ON ONE’S RIGHT IN THE COURSE OF AMICABLE SETTLEMENT IS AN ADMISSION OF LIABILITY

Thus, a mere offer to settle or compromise on one’s right in the course of amicable settlement is not and cannot amount to admission of liability. Such offers or any statements in respect thereof are deemed to have been made without prejudice and are accordingly inadmissible in evidence. In Ashibuogwu vs. A.G. Bendel State & Anor (1988) LPELR-578 (SC), the Supreme Court held thus:
“A statement made in the course of a negotiation of the compensation or the offer of such a compensation would, in my view, be analogous to a statement made “without prejudice” during a negotiation. The law has always taken the view that parties should speak freely in attempting a settlement of their disputes. That freedom of discussion will be seriously prejudiced if any offer or admission made in the process of the negotiation could be given in evidence and be used to support a party’s case in Court afterwards, should the negotiation break down. Where such negotiations are made by written communication they are usually marked “without prejudice” and are inadmissible against the parties in that suit. But it is recognized that in some circumstances it is not essential that the words “without prejudice” should have been used: it may be implied that negotiations were conducted on this understanding…. Offers of compromise made expressly or impliedly “without prejudice” cannot be given in evidence against a party as admissions; the law on grounds of public policy, protecting negotiation bonafide entered into for the settlement of disputes.” The privilege is, however, that of the parties. Per Nnaemeka-Agu J.S.C (Pp. 61-62, Paras. B-C).” PER BAYERO, J.C.A.

ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): On 30th June, 2021, the High Court of Lagos State, Lagos Judicial Division, Coram: Ogunjobi, J. delivered its considered judgment in Suit No: LD/4257GCMW/2017 as reproduced in pages 55-64 of the record of appeal wherein the learned trial judge held that the claim of the Appellant as per the amended statement of claim failed while he found in favour of the Respondent’s counter-claim in the suit.

The Appellant who was the Claimant in the lower Court, had initiated against the Respondent (the Defendant in the lower Court), vide an amended Writ of Summons and Statement of claim filed on 19th March, 2018 the Appellant and prayed the lower Court for the following reliefs:
1. Mandatory Injunction directing the Defendant to remove the Electricity Pole mounted inside the Claimant’s premises.
2. N10 Million (Ten Million Naira) aggravated general damages for trespass and nuisance
3. Commensurate cost.

The gist of the Appellant’s case in the lower Court was that the Respondent, a public company which deals in electricity distribution, caused to be erected, within the premises of the Appellant, an electricity pole while the Appellant was said to be away from Lagos. The said pole was reported not to align with others (poles) on the street. The Appellant’s efforts to ensure that the Respondent remove the said distribution pole from his premises, without recourse to litigation, was said not to have yielded any result, hence the institution of the suit that birthed the instant appeal.

The Respondent, on its part, filed its amended statement of defence on 12th April, 2018 wherein the Respondent denied the Appellant’s claim and averred that, rather, it was the Appellant who constructed his fence subsequently around the said electric pole, which was said to be in place before the construction of the Appellant’s fence. The Respondent denied the Appellant’s claim and also counter-claimed as follows:
1. A declaration that the fence, as it is currently situated is illegally constructed and trespass to the defendant’s right of way.
2. An order of the Honourable Court directing the Claimant to demolish the said fence at the Claimant’s cost without causing any damage to the electricity pole in question.
3. Cost of defending this suit.

At the end of the trial, the learned trial judge, in his considered judgment, delivered on 30th June, 2021, refused the claims of the Appellant in the suit and proceeded to grant the counter-claim of the Respondent; the declaration that the claimant’s fence was illegally erected. It was also ordered by the lower Court that the said electricity pole be removed by the Respondent from the Appellant’s premises at a cost, assessed at N30, 000.00 to be borne by the claimant.

The Appellant, aggrieved by the said decision filed the Notice of Appeal on 8th July, 2021. Appellant’s Brief of Argument was filed on 10th September, 2021 with five (5) issues distilled for determination thus:-
1. Whether a survey plan is necessary to establish the identity of the premises in trespass to Possessory Right in URBA setting where houses were built on standard plots decades ago NEC VI, NEC CLAM, NEC PRECARIO and especially where Defendant admitted the spot on which trespass was committed in claimants premises.
2. Whether the lower Court did not contradict itself when, after holding that a survey plan is a sine qua non for the identity of the premises and that without the survey plan the Defendant is not liable, then stood logic on its head by ordering the defendant to remove the pole.
3. Whether the offer to settle by a Public Utility Company, even if proved by tendering the letter of offer, as against terms of settlement is not evidence of admission of liability in the circumstance.
4. Whether the Defendant, a Public Utility Company, not being the Town Planning Authority, has the Locus standi to challenge the length of Claimant’s plot and the Court to countenance Defendant’s assertion without it discharging the onus of its assertion.
5. Whether the two videos, Exhibits CW 2 & 3 do not show:
i. That the Claimant’s fence is in line with fences right and left of Claimant’s premises
ii. That a gutter runs from one end of the street to another in a straight line and the fence is behind the gutter.
iii. That, poles on the right and left of the Claimant’s premises are mounted on the street.

The Respondent’s brief of argument was filed on 18th October, 2021 with five (5) issues distilled for determination thus:
a. Whether the lower Court was not right when it held that Survey Plan was sine qua non in this case and that non-production of same was fatal to the Appellant’s claims?
b. Whether the lower Court contradicted itself by ordering the Respondent/Cross-Appellant to remove and relocate the pole after holding that survey plan is a sine qua non to prove the exact identity and measurement of the Appellant’s land
c. Whether the Respondent/Cross-Appellant’s offer to settle amount to admission of liability?
d. Whether the Respondent/Cross-Appellant did not have the locus standi to challenge the length of the Appellant’s plot?
e. Whether Exhibits CW 3 and 3A, (i.e. the two videos) have any probative value in resolving the contested size and dimension of the property of the Appellant?

The Respondent incorporates, in the Respondent’s brief of argument, a cross-appeal against part of the judgment of the lower Court, the subject matter of the instant appeal. This will be accordingly considered in the course of the judgment. The Appellant also filed the Appellant’s reply brief on 8th November, 2021 in reply to new issues raised by the Respondent in the Respondent’s brief and the Respondent’s cross-appeal.

The Appellant argued, on issue one of the appeal, that the lower Court erred when it held that a survey plan was a sine qua non in establishing the identity of the Appellant’s premises said to have been trespassed upon by the Respondent – Akinterinwa vs. Oladunjoye (2000) 6 NWLR (Pt. 651) 92. That the need for tendering the said survey plan could be validly dispensed within the circumstance of the instant case. The Appellant contends that the identity of the said premises was well known to the Respondent in the lower Court. That based on the fact that the Respondent deposed to an oath that the Appellant granted it access to the said premises shows that the Appellant had all the while being in possession and same presupposes Respondent’s knowledge of the identity of the premises.

It was emphasized that the relief sought from the lower Court by the Appellant was aimed at removing wrongfully erected structures and not for a restraining order, which would have required that the affected land be identified with certainty, in which case, the need for a survey plan becomes indispensable. That the Respondent lack the locus, under the Companies and Allied Matters Act (CAMA), to raise the issue of survey plan or building permit, as stated by the Appellant. That those were roles in the preserve of the State town planning authority. That the lower Court ought to have granted the order sought by the Appellant for removal of the said pole and also the consequential order for damages and cost accordingly. He urged the Court to allow the appeal on this ground. On issue two, the Appellant averred that the lower Court, having ordered that the contentious pole be removed from the spot in the Appellant’s premises to another place, shows that there was an acceptance that the pole was wrongfully mounted in (the) Appellant’s premises. According to Counsel, the said order inferred that the identity of the premises was quite ascertained, and that the case in trespass and nuisance was made out. The Appellant argued that the part of the order for the Appellant to bear the cost of the pole removal, is unsustainable as he was the one injured by the act of the Respondent.

That by the principle of restitution, consequential order of damages and cost of prosecuting the action in the lower Court ought to have been made alongside the order of removal of the electric pole in contention – A.G. Federation vs. Ajayi (2001) 12 NWLR (Pt. 682) 504 at 535.

The Appellant contended that the act of the Respondent was arbitrary malicious, fraudulent, cruel, insulting and flagrant disregard for the law.

The Appellant contends on issue three that the offer to settle pleaded by the Respondent, as a public utility company, amounts to an admission of liability – Paragraphs 5, 8 and 9 of the amended statement of defence and Section 196 of the Evidence Act, 2011. It was contended that once the Respondent had admitted that the Appellant granted it access into the Appellant’s premises, it could then be deduced that the Appellant was in actual possession of the premises, upon which it was affirmed that the Respondent is estopped from challenging the possessory right of the Appellant.

The Appellant, in arguing issue four submitted that it remains the duty of the town planning authority to challenge any unwholesome conduct in the area of building and fencing of same and the provision of Section 39(1) of CAMA 1990 and the case of Quo Vadis Hotel vs. N.M.S. Ltd. (1992) 6 NWLR (Pt. 250) 653 at 670 were cited to submit that the memorandum of the Respondent Company does not permit it to usurp the statutory power of town planning authority. According to Counsel, the crux of the matter is that Appellant was in possession and the Respondent failed to challenge the Appellant’s possession.

The Appellant contended that the lower Court erred when it failed to countenance the 2 video recordings tendered at trial, having earlier declined to visit the locus in quo. While relying on the decision in Egesimba vs. Onuzuruike (2002) 15 NWLR (Pt. 791) 466, the Appellant submitted that the lower Court failed to ascertain the truth of the respective case of the parties in the suit and that the decision arrived thereat is liable to be set aside for being flawed. He thereafter submitted that the Appellant ought not to be denied his claim to damages in addition to the order to remove the said electric pole.

The Respondent argued that, from the case of the parties at trial, it becomes evidently clear that the Respondent joined issue with the Appellant on the exact size, area, measurement and identity of the Appellant’s property. It was contended that the Appellant exceeded the bounds of his premises while constructing his fence and that the Appellant ought to tender survey plan to that effect in order to show that the Respondent’s pole was in actual sense, erected in the Appellant’s premises. Respondent’s counsel contended that the Appellant could not have discharged this onus without producing the survey plan for his property – Kyari vs. Alkali (2001) LPELR-1728 (SC), Daniel Ibuluya vs. Dikibo (1976) 6 SC 97 and Ita & Ors vs. Ita & Anor. (2013) LPELR-22007(CA). The Respondent contended that the fact that the electric pole in issue was long in existence prior to the Appellant’s construction of his fence, shows that the Respondent needed not the Appellant’s grant of access to that effect. That the Respondent never sought nor obtained access from the Appellant but rather joined issue with the Appellant on the extent of his premises. On whether or not the suit in the lower Court centered on possession, the Respondent averred that the Appellant misconceived the fact that the suit in the lower Court centered on whether the Respondent pole was mounted on the Appellant’s premises to ground a case in trespass.

On the competence of the Respondent to raise issue of survey plan, it was argued that the Respondent, having being sued for trespass, reserves the right to defend itself within the confines of the law. That the Appellant also misconceived the issue of award of damages and cost in the suit because according to Counsel, the Appellant was not entitled to damage and or cost, without proving trespass.

Counsel to the Respondent placed huge reliance on the provisions of Sections 1 and 8 of the Lagos State Physical Planning Permit Regulations 2019 to contend that the Appellant failed to observe the statutory setback required while constructing his fence, whereon he trespassed on the Respondent’s right of way. On whether the lower Court contradicted itself when it ordered the removal of the electric pole by the Respondent having earlier found that the Appellant’s failure to tender a survey plan was fatal to his case; the Respondent asserted that the said order of removal arose from the Respondent’s offer to remove and relocate the pole at the Appellant’s cost in the course of negotiation towards amicable settlement.

According to Counsel, the said order of the lower Court does not amount to an acceptance that the pole was wrongfully mounted on the Appellant’s premises. That the offer of the Respondent to settle which culminated in the offer to remove the pole, does not amount to admission of liability on its part – Ashibuogwu vs. A.G. Bendel State & Anor. (1988) – LPELR-578 (SC).

Learned counsel averred that the Appellant’s submissions on the locus standi of the Respondent to challenge the dimension of the Appellant’s premises was totally misconceived and unsupportable in law, it was contended that the provision of Section 39 of CAMA, 1990, cited by the Appellant was inapplicable in the in the instance. It was the Respondent’s contention that, being a corporate person, the Respondent can validly defend itself within the confines of law. That the evidence of two sets of audio visual tendered in the lower Court had no probative value and that the lower Court was right in not attaching any probative value to same. It was also argued that the lower Court refusal to visit the locus in quo as requested by the Appellant at trial, did not occasion any miscarriage of justice to the Appellant.

That even, if the lower Court had visited the locus in quo, it would have not dispensed with the necessity for the Appellant to produce the survey plan in order to determine the actual size of the property in dispute. He urged the Court to affirm the decision of the lower Court.

CROSS APPEAL
The Respondent filed a cross-appeal in his brief and distilled the following issues for determination:-
a. “Whether the lower Court was right when it refused to grant the Respondent/Cross-Appellant’s consequential relief for demolition of the Appellant’s fence despite granting the declaratory relief that the Appellant’s fence was illegally constructed.”
b. “Whether the lower Court was right when it ordered the Respondent/Cross-Appellant to remove the electricity pole from the Appellant’s fence based on evidence which it had declared inadmissible and not amounting to admission of liability?”

The Respondent chose to argue the two issues in the cross-appeal jointly. Learned Respondent’s counsel contended that the lower Court ought to have allowed the consequential reliefs sought by the Respondent/Cross-Appellant for demolition of the Appellant/Cross-Respondent’s fence as well as the costs of prosecuting the defence of the action in the lower Court.

That the lower Court had earlier rejected the evidence of the Appellant/Cross Respondent, with respect to the Respondent/Cross-Appellant’s offer to settle, as being inadmissible in evidence, but that it later made a detour, when it refused to grant the consequential reliefs sought in the suit premising same on the evidence it held was inadmissible -Emenike vs. P.D.P. & Ors (2012) LPELR-7802 (SC). That once the lower Court granted the declaratory reliefs sought by the Respondent/Cross-Appellant, all consequential reliefs must be granted, and vice versa. He urged the Court to set aside the decision of the lower Court which ordered the Respondent/Cross-Appellant to remove and relocate its pole from the Appellant/Cross-Respondent’s premises.

In the Appellant/Cross-Respondent’s reply the position of the Appellant/Cross-Respondent in the main appeal, was restated wherein he contended that the cross-appeal was incompetent. It was argued that the Respondent failed to commence the cross-appeal properly, but rather commenced same in the Respondent’s brief. The Appellant/Cross-Respondent contended that issues taken in the cross-appeal could have been competently taken under issue two in the main appeal. The Court was then urged to discountenance the argument and allow the appeal.

RESOLUTION OF THE ISSUES IN THE APPEAL
A careful perusal of Paragraphs 6, 7 and 8 of the Appellant’s amended statement of claim at Page 2 of the Record of Appeal shows that the Appellant`s case before the lower Court is substantially based on claim of trespass against the Respondent/Cross-Appellant. The Appellant claimed that the Respondent/Cross-Appellant erected electricity pole within his premises, which gave rise to the claim for alleged trespass.

The Respondent/Cross-Appellant on the other hand disputed being on the Appellant’s property. It is the case of the Respondent/Cross-Appellant that the electricity pole in question had been on the same spot while the Appellant’s property was unfenced, that the pole is on the same straight line with other poles on the Appellant’s street and that the Appellant extended his fence beyond his property thereby trespassing on the Respondent/Cross-Appellant’s right of way – Paragraphs 4, 5, 6 and 7 of the Respondent/Cross-Appellant’s amended statement of defence at Page 13 of the Record of Appeal. It therefore becomes apparent that the Appellant and the Respondent/Cross-Appellant joined issue on the exact size, area, measurement and identity of the Appellant’s property. The Appellant stated that the Respondent/Cross-Appellant’s pole is within his property while the Respondent/Cross-Appellant contended that the Appellant extended his fence to his property beyond what ought to be his property thereby trespassing on the Respondent/Cross-Appellant’s right of way.

At Page 22 of the Record of Appeal during cross-examination, the Appellant admitted that the pole was erected before his concrete fence and could not establish that there was any old fence on the property. The Appellant also admitted not knowing the distance between his fence and the road (which could have been shown by a survey plan). The Appellant also admitted not tendering any survey plan in support of his claim.

When a party alleges trespass on his property like the Appellant in the instant appeal, the onus to prove the real identity of his property is on him in terms of the exact measurement and dimension which is contested, to show that the Respondent/Cross-Appellant’s pole is within his property as claimed. The Appellant couldn’t have discharged this onus without producing the survey plan for his property. In the case of Ita & Ors vs. Ita & Anor. (2013) LPELR-22007 (CA), this Court held thus:
“The purpose of tendering a survey plan is to show with reasonable certainty the identity and extent of the land claimed: reflecting all the features of the land and showing clearly the boundaries. See also Owie vs. Ighiwi (2005) 3 MJSC 82; Oyefeso vs. Coker (1999) 1 NWLR (Pt. 588) 654.” Per Otisi, J.C.A. (P. 39, Paras. D-E).
Furthermore in Osemeikhian vs. Edionwele & Ors (2016) LPELR-40499 (CA) this Court held thus: “Basically, the filing of a survey plan becomes necessary only where the identity of the land in dispute is not certain, or is being disputed in relation to the area, size or location” Per Barka J.C.A. (P. 21, Para. A”. See also Kyari vs. Alkali (2001) LPELR-1728 (SC) and Chief Daniel Ibuluya vs. Dikibo (1976) 6 SC 97. The suit before the Court below is not on possession but fully centers on whether the Respondent/Cross-Appellant’s pole is on the Appellant’s property to warrant the claim for trespass.
It is for the Appellant to tender a survey plan to prove the exact area and dimension of his land to aid the Court in determining whether the Respondent/Cross-Appellant’s pole fell within the Appellant’s land. The Appellant only tendered a purchase receipt which is not a substitute for a survey plan. The burden of proving the disputed size and dimension of the Appellant’s land is only on the Appellant and cannot shift to the Respondent/Cross-Appellant without the Appellant producing the survey plan for his land.

Parties duly joined issue on this, and same cannot be resolved without a survey plan. The Appellant’s submission at Paragraph 1.9 of the Appellant’s brief that the Respondent/Cross-Appellant is not competent under CAMA to raise issue of survey plan and building permit is totally misconceived and not supported by law. The Respondent/Cross-Appellant was sued for alleged trespass and has every right to defend itself within the confines of the law.

The Appellant’s submission at Paragraph 5.7 of his brief that the consequential order sequel to the order of removal of the pole should be award of damages and cost is also misconceived. That the Appellant is not entitled to damages for trespass without proving trespass. It therefore follows that the decision of the lower Court at Page 63 of the Record of Appeal that the survey plan was sine qua non in this case and that the non-production of same was fatal to the Appellant’s claims is in line with the correct position of the law as espoused by this Court and Supreme Court as quoted above. Section 1 of the Lagos State Physical Planning Permit Regulations, 2019 defines ‘right of way’ thus:-
“Reservation for all easements for transportation purpose (canal, public footpath, electrical transmission line, railway, highway, oil and gas pipeline).”
By Section 8 (c) of the same law, the minimum setback/distance between any building from power line shall not be less than six (6) meters away from the power line. The section provides thus:
“Setback to Electric Power Network: The minimum horizontal distance between a building and the centre line of Electric overhead conductors shall not be less than the following:
(i) 0.415KV – 6 meters;
(ii) 11 KV – meters;
(iii) 33 KV – 10 meters;
(iv) 132 KV – 20meters;
(v) 330 KV – 30meters.”

At Page 22 of the Record of Appeal, the Appellant during cross-examination stated:- “I don’t have building permit. I don’t know the distance between my fence and the road. The pole had been mounted before the concrete fence was erected”. It therefore follows that the Appellant who does not know the measurement of his land went and constructed a concrete fence around the Respondent/Cross-Appellant’s electricity pole without observing the necessary setback as stipulated by Sections 1 and 8(c) of the Lagos State Physical Planning Permit Regulations, 2019 thereby trespassing on the Respondent/Cross-Appellant’s right of way as stated at paragraph 6 of the Respondent/Cross-Appellant’s amended statement of defence.

The basis upon which the lower Court made the order of removal of the pole at Page 64 of the Record of Appeal was due to the Respondent/Cross-Appellant’s offer to remove and relocate the pole at the Appellant’s cost in the course of negotiations towards amicable settlement with the Appellant who is its customer. Settlement involves making compromises and giving up all or part of ones’ right. Thus, a mere offer to settle or compromise on one’s right in the course of amicable settlement is not and cannot amount to admission of liability. Such offers or any statements in respect thereof are deemed to have been made without prejudice and are accordingly inadmissible in evidence. In Ashibuogwu vs. A.G. Bendel State & Anor (1988) LPELR-578 (SC), the Supreme Court held thus:
“A statement made in the course of a negotiation of the compensation or the offer of such a compensation would, in my view, be analogous to a statement made “without prejudice” during a negotiation. The law has always taken the view that parties should speak freely in attempting a settlement of their disputes. That freedom of discussion will be seriously prejudiced if any offer or admission made in the process of the negotiation could be given in evidence and be used to support a party’s case in Court afterwards, should the negotiation break down. Where such negotiations are made by written communication they are usually marked “without prejudice” and are inadmissible against the parties in that suit. But it is recognized that in some circumstances it is not essential that the words “without prejudice” should have been used: it may be implied that negotiations were conducted on this understanding…. Offers of compromise made expressly or impliedly “without prejudice” cannot be given in evidence against a party as admissions; the law on grounds of public policy, protecting negotiation bonafide entered into for the settlement of disputes.” The privilege is, however, that of the parties. Per Nnaemeka-Agu J.S.C (Pp. 61-62, Paras. B-C).”

The Appellant at trial produced two videos, Exhibits 3 and 3A, showing his property and other surroundings, including the poles on the Appellant`s street. The Videos no matter how clear or good could not have shown the exact measurement and dimension of the Appellant`s property, which was highly contested at trial, and must be resolved before the Court could determine whether or not the Respondent/Cross-Appellant trespassed on the Appellant’s property vide its electricity pole. The Appellant ought to have produced the survey plan for his property(if any) to prove the exact size and dimension of his property as required by law instead of taking the pain of producing videos which in law are not substitute for survey plan. The videos therefore have no probative value in this case, and the lower Court was right by not attaching any probative value to them.

Furthermore, the refusal of the lower Court to visit the locus in quo did not occasion any miscarriage of justice to the Appellant. The lower Court could still not have been able to ascertain the dimension of the Appellant`s property by merely visiting the locus in quo. The Court is not a surveyor, neither can the Court prepare a survey plan after visiting the locus in quo. It is the duty of registered surveyors to survey the land and document their findings vide a survey plan. Whether or not the Court visited the locus in quo would not have dispensed with the necessity for the Appellant to produce the survey plan for his property to resolve the issue of the actual size and dimension of the property which was disputed. The appeal is therefore unmeritorious and is hereby dismissed by me.

RESOLUTION OF THE CROSS-APPEAL
The lower Court, after a careful consideration of the Respondent/Cross-Appellant`s counter-claim and coming to the understanding that the Appellant violated the Respondent/Cross-Appellant’s right of way, granted the Respondent/Cross-Appellant’s declaratory relief as follows:
“The counter-claim of the defendant/counter-claimant for declaration that the Claimant’s fence was illegally erected is hereby granted.”
– Page 64 of the Record of Appeal.

The Court however refused to grant the Respondent/Cross-Appellant’s consequential relief for demolition of the Appellant’s illegal fence because of the Respondent/Cross-Appellant’s gesture to remove the pole at the Appellant’s cost in the course of negotiation towards amicable settlement. The lower Court had earlier declared evidence of the above Respondent/Cross-Appellant’s gesture as inadmissible and not amounting to admission of liability. The Court clearly stated as follows:
“The law is trite that statements made during negotiations/settlements are inadmissible against the person(s) who make it. In addition, the rule of the Court encourages parties to a dispute to first opt for settlement before proceeding to Court for determination/intervention. What more? The provisions of the Evidence Act, 2011 oust the admissibility of statements made during negotiation process. In my humble view, this statement is not an admission but gesture of goodwill for an amicable understanding in response to the complaints of the claimant. Hence, it is not admission of liability.” See Pages 23 and 24 of the Record of Appeal.

The lower Court erred to have considered and attached probative value to a piece of evidence it had declared inadmissible in its judgment. Having granted the Respondent/Cross-Appellant’s declaratory relief, the lower Court ought to have granted the consequential relief. In Emenike vs. P.D.P. & Ors (2012) LPELR – 7802 (SC), the Supreme Court stated thus:
“I need to state it clearly at this point that since the appellant claimed seven (7) declaratory reliefs, the law places a legal burden on him to establish his claim. His three (3) injunctive reliefs are predicated on the success of the declaratory reliefs. To that extent, they are consequential reliefs.”
Once declaratory reliefs succeed, all consequential reliefs must be granted, and vice versa -C.B.N. vs. Okemuo (2018) 15 NWLR (Pt. 1642) 367. In the instant case, the Respondent/Cross-Appellant discharged the burden of proving the declaratory relief it sought and same was granted. It then follows that the lower Court ought to have equally granted the Respondent/Cross-Appellant’s consequential relief’s for demolition of the Appellant’s illegal fence.

The cross-appeal is meritorious and is hereby allowed. Consequently, the relief for the demolition of the Appellant’s fence already declared illegal by the lower Court is hereby granted. The judgment of the High Court of Lagos in suit number LD/4257GCMW/2017 delivered on 30th June, 2021 by Ogujobi J is hereby affirmed except for the non-grant of the mandatory injunction. No cost awarded. Parties to bear their respective costs.

OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother ABDULLAHI MAHMUD BAYERO, JCA and I agree with my lord’s reasoning as regarding both the appeal and the cross-appeal. The lower Court ought to have made the consequential order sought by the cross-appellant that the fence of the Appellant be demolished. Such a consequential order flows logically from the decision of the lower Court that the Appellant illegally fenced in the area that the electricity pole was erected.

I therefore agree with my Lord that the judgment of the lower Court be affirmed except as it relates to the refusal of that Court to grant the relief with regard to the demolition of the Appellants wall, the erection of which the lower Court had already adjudged to be illegal.

MUHAMMAD IBRAHIM SIRAJO, J.C.A.: My learned brother, Abdullahi Mahmud Bayero, JCA, has made available to me a draft of the judgment by him and just delivered. I agree with his reasoning and conclusion that the appeal lacks merit. I wish to emphasize that the claim of the Appellant for trespass and the counter-claim of the Respondent’s right of way necessitate the production of survey plan to show that the land upon which the Respondent erected its pole is part of the Appellant’s land and that the Respondent has no right of way. The law has been that where there is dispute as to the identity or boundary of land, as in the case leading to the instant appeal, the most definitive and reliable way to ascertain the identity or boundary of the land is through a survey plan. See Ogundalu vs. Macjob (2015) LPELR-24458; Ogedengbe & Ors vs. Balogun & Ors (2007) LPELR-2297 (SC). Having failed to produce a survey plan to show that the land upon which the Respondent erected its pole is not part of the setback to electric network, but part of his land, the Appellant’s claim for trespass rightly fails. It is for this reason and the more comprehensive analysis of my learned brother in the lead judgment that I too dismiss the appeal.

On the cross-appeal, I am also at one with my learned brother that it should succeed. The lower Court having found that the Appellant’s concrete fence was illegally constructed thereby obstructing the Appellant’s right of way, ought to have granted the consequential relief claimed by the Respondent for the demolition of the fence. A consequential order is an order which flows directly and naturally from the judgment and gives effect to the judgment or orders made therein. It gives life to the finding and decision of the Court thereby promoting justice. See Dec Oil & Gas Ltd vs. Shell Nigeria Gas Ltd (2019) LPELR-49347 (SC), Nyako vs. Adamawa State House of Assembly & Ors (2016) LPELR-41822 (SC). For this reason and the fuller reasons given by my learned brother, I also allow the cross-appeal and order the demolition of the Appellant’s illegal fence. I abide by the order as to costs.