EDEM JOHN ITUEN v. MR. BASSEY OKON ASUQUO & ORS
(2019)LCN/12830(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2019
CA/C/160/2009
RATIO
APPEAL: RIGHT TO APPEAL
“The Constitution provided for other instances when a party can appeal as of right, then Section 242 lists out the situations when appeal must be by leave of the Court, such as interlocutory appeals where the grounds are grounds of mixed law and fact. Interlocutory appeals on grounds of law require no leave. The vexed issue has received judicial attention and in several decisions of the apex Court on the Constitutional provision has been restated in clear terms in the case of BEN ANACHEBE ESQ. VS. KINGSLEY IJEOMA & ORS. (2014) 14 NWLR (PT. 1426) 168, where Ngwuta JSC answered it in brief thus: “Leave to appeal is required only when the Judgment sought to be appealed is not a final judgment or the appeal is on grounds other than law. If the appeal is one that can be filed as of right, then if the applicant is out of time, he has to seek for extension of time to appeal and not leave to appeal.” PER YARGATA BYENCHIT NIMPAR, J.C.A.
LAND LAW: NATURE AND RIGTH CONFERRED BY EASEMENT
“The nature and rights conferred by easement was considered in the Supreme Court case of OLUSANYA VS. OSINLEYE (2013) LPELR-20641 (SC) wherein the Court had this to say: “BLACKS LAW DICTIONARY 7TH EDITION defines easement as, “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 (such as to cross it for access to a public road). The land benefiting from an easement is called the dominant estate; the land burdened by an easement is called the servient estate. Unlike a lease or license an easement may last forever but it does not give the holder the right to possess, take from, improve or sell the land. In DEFACTO BAKERIES & CATERING LTD. VS. AJILORE & ORS. (1974) 1 ALL NLR PART II PAGE 385 @ 392, this Court defined an easement as, “a right enjoyed over the property of another person and must be created by a grant (express, implied or presumed, or by statute). It is not by itself an incorporeal hereditament in the sense that it is like other forms of personal property of being purchased or sold by anybody. It is rather a right appurtenant to a corporeal hereditament a right which is enjoyed as part of a real property…” See also GABRIEL OKUNZUA VS. E. B. AMOSU & ANOR. (1992) 6 NWLR PART 248, 437.” PER YARGATA BYENCHIT NIMPAR, J.C.A.
LAND LAW: DISTURBANCE OF EASEMENT
“In NICHOLLS VS. ELY BEET SUGAR FACTORY LTD. (1936) CH. 349, Lord Wright would appear to have put it graphically enough when he said – “Disturbance of easements and the like, as completely existing rights of use and enjoyment, is wrong in the nature of trespass.” Indeed, it is remediable, and as the learned law lord further said -“by action without any obligation or proof of specific damage.” Per ESO, J.S.C” PER YARGATA BYENCHIT NIMPAR, J.C.A.
JUSTICES
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
EDEM JOHN ITUEN Appellant(s)
AND
1. MR. BASSEY OKON ASUQUO
2. MR. INA EGBE
3. CALABAR URBAN DEVELOPMENT AUTHORITY Respondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of Cross River State High Court delivered on the 20th day of June, 2008 by Hon. Justice E. E. Ita in Suit No. HC/252/2004 wherein the Court dismissed the claim of the Appellant. Dissatisfied with the decision, the Appellant filed a Notice of Appeal dated 17th day of September, 2008 on the 18th day of September, 2008 setting out four (4) grounds of Appeal.
Facts leading to this appeal are straightforward; the Appellant acquired a lease over a piece of land in 1978 along Odukpani Road, Calabar from the 1st Respondent and later developed it. Access to the land is through the 1st Respondent’s land reflected on the plan attached to the lease agreement. The Appellant told the Court that he used the access as provided in the survey plan without hindrance for over 23 years and up until 2001 when the 1st Respondent built a kiosk across the access. The Appellant reported to the 3rd Respondent who declared that the blockage was wrong and illegal, directed it be removed and was removed; that the disagreement was also reported to the Police.
Later the Appellant got approval to fence his property but foundation dug was covered and workers were chased away by the 1st Respondent. The Appellant averred that the 1st Respondent later sold the access area (land) to the 2nd Respondent. Work by the 2nd Respondent was initially stopped by the 3rd Respondent. The problem was protracted and it led to the Appellant taking out a writ of summons on the 23rd day of April, 2009 wherein by the statement of claim he sought the following reliefs:
1. A declaration that the Plaintiff being a bona fide purchaser for value of a part of the property known as No. 27 Odukpani Road, Calabar, from the 1st Defendant without a prior encumbrance or Notice, is entitled to the right of easement and profits especially to enjoy the right of way to use of the 1st Defendant’s parcel of land in front of Plaintiff’s house as granted and agreed.
2. A declaration that the purported sale of the said parcel of land the agreed and the only access road to the Plaintiff’s property at No. 27 Odukpani Road, Calabar by the 1st Defendant to the 2nd Defendant is in breach of agreement with Plaintiff and same is illegal, null, void and of no effect whatsoever.
3. A declaration that the 2nd Defendant building on the said parcel of land, despite warnings, and opposition by the Plaintiff and during the pendency of the action then before the Court, is wrongful, illegal and abuse/violation of Plaintiff’s right.
4. A declaration that the approval given by the 3rd Defendant as contained in the Permit dated 18/4/2002 and Plan No. CUDA/EP/2002/05 of 18/4/2002 to erect a building over the parcel of land providing the drive way to the Plaintiff’s house is wrongful, illegal, null and void and same is a violation of the law.
5. An order canceling the said approvals as in (3) above and directing the 2nd Defendant to remove his structure and vacate the drive way (access road) leading to the Plaintiff’s house.
6. The sum of N1,500,000.00 as special and general damages for destruction to Plaintiff’s blocks and gravels and also for unlawful blockage and entry by the Defendants into the only access path to Plaintiff’s property above stated.
7. A perpetual injunction restraining the 1st, 2nd and 3rd Defendants, their servants, agents, heirs, assigns and privies from tampering with or disturbing the Plaintiff’s right of way to his property at No. 25 Odukpani Road, Calabar.
Issues were joined and trial proceeded culminating in the dismissal of the claim thus this appeal.
The Appellant’s brief settled by IMO INYANG ESQ., is dated 22nd day of October, 2012 and filed on the 24th day of October, 2012 but deemed on the 10th April, 2013. It distilled four (4) issues for determination as follows:
i. Whether the learned trial Judge was right when he held that the Plaintiff did not prove his right to easement claim over the access road.
ii. Whether the trial Judge was right when he held that the 1st Defendant did not breach the terms of Exhibit ‘B’.
iii. Was the trial Judge right when he held that the provision of the access road was a conjecture due to the none specification of time.
iv. Whether the judgment is not against the weight of evidence.
The 1st and 2nd Respondents Brief settled by I. I. IKOI, ESQ., is dated 7th day of October, 2013 and filed on the 9th day of October, 2013 but deemed on the 21st day of April, 2016. It distilled three (3) issues for determination as follows:
1. Whether the learned trial Judge was right, when he held that the Plaintiff did not prove his right to easement claim over access Road.
2. Whether the learned trial Judge was right when he held that the 1st defendant did not breach the terms of Exhibit ‘B’.
3. Whether the judgment is not against the weight of evidence.
The 1st and 2nd Respondents also raised a preliminary Objection in their Brief of argument on ground 2 alleging it is incompetent.
The 3rd Respondent’s brief settled by E. A. Okon, Esq., Assistant Director Ministry of Justice, Cross River State is dated 15th day of November, 2016 filed on the same day. It distilled a sole issue for determination thus:
Whether the learned trial judge was correct when he held that Appellant has not proved his case against the Respondents.
The 3rd Respondent also raised a Preliminary Objection wherein it was contended thus:
TAKE NOTICE that at the hearing of this Appeal, the 3rd Respondent herein intends to rely on a preliminary Objection, notice of which is hereby given to you that this Court shall be urged to strike out this appeal, on the ground that it is incompetent and the Court lacks jurisdiction to entertain same.
The ground upon which the objection is premised is that the ground of appeal contained in the appellant’s Notice of Appeal, are grounds of mixed law and facts, and facts alone, and no leave of either the trial Court or this Court was sought and obtained prior to the commencement of this appeal.
The Appellant reacted to the objections by filing Appellant’s Reply brief to the 1st and 2nd Respondent’s Objection dated 28th day of September, 2018 on the 2nd October, 2018. The Reply to the 3rd Respondent’s Objection is dated 28th day of September, 2018 filed on the 2nd day of October, 2018.
As required by the rules of this Court, the two Preliminary objections shall be considered first and together for convenience before taking any step in the appeal, if the objection fails and the appeal survives.
PRELIMINARY OBJECTION
The 1st and 2nd Respondents argued that ground 2 is incompetent, the Preliminary objection states thus:
‘The learned trial judge erred in law when he held upon interpreting the provision of Exhibit B that because no time was fixed for the provision of the Plaintiff’s permanent free entrance/drive in the agreement the covenant remains as a conjecture and cannot be enforced.’
They submitted that the said ground 2 gave birth to issue 3 which states as follows:
‘Whether the trial judge was right when he held that the provision of the access road was a conjecture due to the non specification of time.’
Arguing the objection the 1st and 2nd Respondents submitted that the law is that a ground of appeal should represent the complaint of an Appellant against a decision taken against him in the trial Court or the Court of Appeal which he thinks was wrongly taken as held in FBN (NIG) PLC VS. AKPARABONG COMMUNITY BANK LTD. (2006) ALL FWLR (PT. 319) 927. They submitted that the ground of appeal did not flow from the judgment and issue three is incompetent and should be struck out.
In response the Appellant urged the Court to discountenance the objection of the 1st and 2nd Respondents for failure to comply with the rules of the Court as they failed to give notice and there are no grounds upon which the objection is founded. Appellant in the alternative argued that the ground is rooted in the judgment. He referred to the findings of the Court which gave rise to the ground of appeal, the interpretation of Exhibit ?B? from where the trial Court found that clause 4 is mere conjecture and that it is a part of the judgment appealed against, relying onNGIGE VS. OBI (2006) ALL FWLR (PT. 330) 1041 at 1059 and ERUMUCHE VS. AMADI (2016) ALL FWLR (PT. 842) 1743 to submit that a good ground is a complaint against the ratio decidendi and its function is to give the Respondent notice and leave no room for surprise. He contended that the ground is therefore valid, citing OGBORU VS. ARTHUR (2016) ALL FWLR (PT. 833) 1805 and OMISORE VS. AREGBESOLA (2015) ALL FWLR (PT. 8137) 1613. The Appellant asked the Court to examine the ground with a view to determining the complaint against the judgment, citing LADOJA VS. AJIMOBI (2016) ALL FWLR (PT. 834) 1846 and OSEMEIKHIAN VS. EDIONWELE (2016) ALL FWLR (PT. 838) 870. He urged the Court to discountenance the objection.
The 3rd Respondent incorporated a notice of Preliminary Objection and contended thus:
TAKE NOTICE that at the hearing of this Appeal, the 3rd Respondent herein intends to rely on a preliminary Objection, notice of which is hereby given to you that this court shall be urged to strike out this appeal, on the ground that it is incompetent and the court lacks jurisdiction to entertain same.
The ground upon which the objection is premised is that the ground of appeal contained in the Appellant’s Notice of Appeal, are grounds of mixed law and facts, and facts alone, and no leave of either the trial court or this court was sought and obtained prior to the commencement of this appeal.
In arguing the objection, the 3rd Respondent submitted that all the grounds of appeal are tagged errors of law and when juxtaposed with the issues formulated from the said grounds, they clearly show that all the three are issues of mixed law and facts because it involves the evaluation of facts or evidence at the trial court before the application of law. The 3rd Respondent argued that the appeal is therefore constituted of questions of mixed law and fact and therefore leave of Court is required according to Section 241 (1) and 242 (1) of the 1999 Constitution as amended, relying on POPOOLA VS. ADEYEMO (1992) 8 NWLR (PT. 257) 1 and ABIDOYE VS. ALAWODE (2001) FWLR (PT. 43) 322.
The 3rd Respondent argued that though there is a thin line between grounds of law and mixed law and fact, it is not the label or tag but the essence of the ground that should be considered to determine whether the appeal is of right or one that the Appellant requires leave of Court. That the issue is jurisdictional and referred to UNIVERSITY OF CALABAR VS. OJI (2011) ALL FWLR (PT. 595) 388; EHINLANWO VS. OKE (2008) 36 (PT. 1) NSCQR 1 to submit that a ground that challenges findings of fact or issues of mixed law and fact requires leave of Court, citing ORAEKWE VS. CHUKWUKA (2012) ALL FWLR (PT. 612) 1678; CCCTS VS. BASSEY EKPO (2008) 33 (PT.2) NSCQR 1446 and ABUBAKAR VS. WAZIRI (2008) 35 NSCQR 333.
On ground 4 the 3rd Respondent contended that it is an omnibus ground complaining about the totality of evidence adduced at the trial. That it is not against any specific finding of fact or document therefore it cannot be used to raise any issue of law and referred to ORAEKWE VS. CHUKWUKA (supra) and AGBAMU VS. OFILI (2004) ALL FWLR (PT. 197) 540. The 3rd Respondent further argued that leave is required to raise an issue of fact in an omnibus ground of appeal. The 3rd Respondent argued that an omnibus ground is not against any specific finding and expectedly, a substantive ground must be raised challenging the finding of the trial Court, relying on AJIBONA VS. KOLAWOLE (1996) 10 NWLR (PT. 476) 22 and AKINLAGUN VS. OSHOBOJA (2006) ALL FWLR (PT. 325) 53. It argued further that failure to seek leave divest the Court of jurisdiction and urged the Court to strike out the Notice of appeal on the authority of OJE VS. BABALOLA (1987) 4 NWLR (PT. 64) 208.
The Appellant on his part responded that the objection is misconceived as the grounds arose from a final judgment and they do not require leave to appeal, referred to Section 241(1) Paragraph (a) which allows appeals as of right from final decisions of the High Court. He attacked the decisions relied upon by the 3rd Respondent and submitted that they arose from interlocutory decisions and not against final decisions of the High Court, relied on OYEWINLE VS. IRAGBIJI (2014) ALL FWLR (PT. 231) 1536 on the import of Section 241 of the 1999 Constitution. He then urged the Court to discountenance the objection and determine the appeal.
RESOLUTION OF THE PRELIMINARY OBJECTION
Let me start from the procedure adopted by the 1st and 2nd Respondents in raising the objection, learned counsel for the 1st and 2nd Respondents merely went into arguments without giving notice of the preliminary objection and without stating clearly the objection and the ground(s) upon which it is founded. The rules of the Court require and expect a party raising an objection to state the objection and also name the ground(s) upon which the objection is premised. See Order 10 Rule 1 of the Court Rules which states thus:
A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days notice thereof before the hearing, setting out grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.
The Respondent must of necessity give notice of the objection and state the grounds upon which the objection is premised. The 1st and 2nd Respondents did not give notice, neither separately nor in the Respondent’s brief as approved by the Apex Court. Order 10 Rules 3 stipulates the effect of failure to give notice and it says:
‘Where the Respondent fails to comply with the rule, the Court may refuse to entertain the objection or may adjourn the hearing thereof at the costs of the Respondent or may make such other order as it thinks fit.’
The manner the objection was raised is in breach of the rules of this Court. It is required that parties obey rules of the Court, the purpose of rules of Court is primarily to ensure that the affairs of the Court are conducted in an orderly fashion and for predictability which reinforces the integrity of the administration of justice, see F.S.B. INTERNATIONAL BANK LTD. VS. IMANO (NIG.) LTD. (2001) 11 NWLR (PT. 679) 620. Consequently, the objection shall be discountenanced for failing to comply with the Rules of the Court.
I shall proceed to determine the preliminary objection raised by the 3rd Respondent which has no procedural defect and has duly complied with the rules of the Court. In considering the objection, Section 241 and 242 of the 1999 Constitution (as Amended) are relevant provisions and fall due for consideration on whether the Appellant complied with Constitutional provisions. The import of the two sections shall determine the objection.
The relevant portion of the Constitution governing appeals as of right is Section 241(1) (a), it provides as follows:
(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases-
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
The Constitution provided for other instances when a party can appeal as of right, then Section 242 lists out the situations when appeal must be by leave of the Court, such as interlocutory appeals where the grounds are grounds of mixed law and fact. Interlocutory appeals on grounds of law require no leave. The vexed issue has received judicial attention and in several decisions of the apex Court on the Constitutional provision has been restated in clear terms in the case of BEN ANACHEBE ESQ. VS. KINGSLEY IJEOMA & ORS. (2014) 14 NWLR (PT. 1426) 168, where Ngwuta JSC answered it in brief thus:
“Leave to appeal is required only when the Judgment sought to be appealed is not a final judgment or the appeal is on grounds other than law. If the appeal is one that can be filed as of right, then if the applicant is out of time, he has to seek for extension of time to appeal and not leave to appeal.”
The apex Court again in AULT & WIBORG (NIG.) LTD. VS. NIBEL INDUSTRIES LTD. (2010) LPELR-639 (SC) held as follows:
“The relevant part of Section 241 (1) of the Constitution provides:
An appeal shall lie from the decisions of the Federal High Court to the Court of Appeal as of right in the following cases:- (a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance (underlining mine). (b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.
The Section goes on to provide for others, the other situations where appeal shall lie as of right. Section 242 (1) provides:- “242 (1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal. In my considered opinion where a party can only appeal to the Court of Appeal with the Leave of the Federal High Court or the High Court or the Court of Appeal as provided in Section 242 (1) of the Constitution and he fails to so seek leave to appeal within the period prescribed by law then he has the duty to apply for extension of time within which to seek leave to appeal, leave to appeal and extension of time within which to appeal. It is then and only then that the party in default of appealing with leave of Court is required to invoke the trinity prayers to appeal. Where however a party can appeal as of right as provided in Section 241 (1) (a) of the Constitution and he fails to utilize his right to appeal within the period prescribed by law he only needs to apply for extension of time within which to appeal. And since he was not required, in the first place, to seek leave to appeal he has no duty to apply for extension of time within which to seek leave to appeal.”
The provisions of Section 241(1)(a) of the 1999 Constitution provides for appeals as of right. Section 241(1)(a) of the 1999 Constitution is in the following terms:-
“241(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:- (a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.”
In the interpretation of similar provisions which vest in a party to judicial proceedings the right to appeal against a final decision therein as of right, the Courts have been consistent over the years in holding that such a party does not require to seek and obtain the sanction/permission of the Court before exercising such a right to appeal. Because the right to appeal conferred on the party is as of right, the party has the unfettered discretion to appeal, subject only to the limitation of time within which the right to appeal is to be exercised without the prior permission or sanction of the Court. See also NJC & ORS. VS. ALADEJANA & ORS. (2011) LPELR-4581 (CA).
In the interpretation of the said similar provisions which vest in a party to judicial proceedings the right to appeal against a final decision therein as of right, the Courts have been consistent over the years in holding that such a party does not require to seek and obtain the sanction/permission of the Court before exercising such a right to appeal. Because the right to appeal conferred on the party is as of right, the party reserved the unfettered discretion to appeal, subject only to the limitation of time within which the right to appeal is to be exercised without the prior permission or sanction of the Court. The Supreme Court in the case of IWUEKE VS. I.B.C. (2005) 17 NWLR (955) 447 at 470 per Onnoghen, JSC (as he then was) had put it bluntly thus:-
“An Appellant appeals as of right against the final decision of a Court of first instance. In such a situation, it becomes immaterial or irrelevant that a ground of appeal against such a final decision is of law, facts or mixed law and facts, in the instant case, the decision of the trial Court was final as opposed to an interlocutory decision. Therefore, the Respondent did not need the leave of either the trial Court or of the Court of Appeal before appealing against same.”
The authorities relied upon by the 3rd Respondent were decided on situations when leave is required and not relevant to this appeal because the appeal is against the final judgment of the trial Court. The Appellant therefore has a Constitutional right of appeal and he does not require leave to appeal. The contention was not as to time allowed to appeal having expired or having lapsed, since it is limited to leave to appeal, the 3rd Respondent missed the point and misunderstood the import of the constitutional provision.
Flowing from above the objection is misconceived and unmeritorious, it is hereby dismissed.
I shall now proceed to determine the substantive appeal on the merit. I have carefully considered the Notice of Appeal, the record of Appeal and the respective briefs of parties, I shall adopt the sole issue presented for determination by the 3rd Respondent, in considering the issue all areas of complaint presented by the Appellant shall be addressed. They shall be resolved all at once to avoid repetition because the Appellant’s case is more or less founded on evaluation of evidence and findings arrived at by the trial Court. The Appellants submissions in respect of his 4 issues were repetitious and unnecessary.
SOLE ISSUE
Whether the learned trial judge was correct when he held that the Appellant has not proved his case against the Respondents.
In proffering arguments, the Appellant reproduced the 7 reliefs named in the statement of claim. He referred to Exhibits A and B and the evidence of the Appellant, that Exhibit B has a provision where the 1st Respondent covenanted to provide the permanent access to the Appellant and clearly marked out as proposed drive in; that the survey plan was shown to the 3rd Respondent; who approved the building plan and the property had been in use for over 23 years and the pleadings were supported by evidence to further show that Exhibit P at pages 147 shows how the defendant’s building has blocked the access even though the 1st Respondent denies the blockage but admits the right to access. It was established that the initial lease was replaced by Exhibit B and the Court found that the 1st
Respondent signed it despite his denial, the Appellant could not then understand how the trial Court arrived at the finding that right of access was futuristic. That Appellant’s evidence was not challenged and standard of proof is on the balance of probabilities, relied on OSUJI VS. EKEOCHA (2009) ALL FWLR (PT. 490) 614 and IROAGBARA VS. UFOMADU (2009) ALL FWLR (PT. 481) 843.
The Appellant argued that the trial Court’s evaluation of evidence was faulty thus leading it to a perverse finding after all the evidence presented. The Appellant submitted that he used the access road for over 23 years unchallenged according to the agreement and there was nothing to be concretized as found by the trial Court which had the effect of the trial Court making a case for the 1st Respondent and the Court cannot do that, citing OKWEJIMINOR VS. GBAKEJI (2008) ALL FWLR (PT. 409) 405; LONGE VS. FIRST BANK OF NIGERIA PLC (2010) ALL FWLR (PT. 525) 258; CHABASAYA VS. ANWASI (2010) ALL FWLR (PT. 528) 839 and DANKULA VS. SHAGAMU (2008) ALL FWLR (PT. 413) 1280.
Furthermore, the Appellant submitted that if the access in Exhibit B is futuristic, he asked where then was the access allegedly provided by the 1st Respondent. He submitted that the 1st Respondent failed to support his pleadings with evidence thereby leaving the case of the Appellant unchallenged, he relied on GUARANTY TRUST BANK PLC VS. FADLALLAH (2010) ALL FWLR (PT. 537) 739. Appellant submitted that the survey plan attached to Exhibit B was the same plan submitted for building approvals by the 3rd Respondent and if parties are bound by their agreement then the trial Court failed to enforce the terms of the agreement.
The Appellant argued that the word ‘proposed’ is a common term used by Architects in plans to indicate where specific items would be established and it is upon such plans that approvals are given. Therefore, the question of access road cannot be unspecific because the 1st Respondent did not so allege and it is obvious the trial Court made it up. Moreso, the 1st Respondent did not demonstrate by evidence the access road he provided which is different from the one in Exhibit B. Furthermore, he contended that Exhibit P shows the position of the Appellant’s property and that of the 2nd Respondent, and that it is clear from there that the 2nd Respondent’s house blocked the access in Exhibit B. He questioned where the Court below found the evidence to dislodge the Appellants unchallenged evidence. Appellant labelled the findings and decision as perverse as it cannot be supported by evidence, relying on ILIYA AKWAL LAGGA VS. AUDU YUSUF SARHUNA (2008) NSCQLR VOL. 36 82 he urged the Court to re-evaluate the evidence and find for the Appellant.
Arguing further, the Appellant asked whether the 1st Respondent did not breach the terms of the contract. The Appellant submitted that the trial judge erred in the findings that there was no breach as the difference between exhibit A and B is clause 4 which stipulates the provision of access road and this was established by evidence coupled with the findings that the 1st Respondent?s denial was punctured by the same trial judge, but yet he still failed to make informed findings on the breach. He reiterated the unchallenged evidence before the Court and argued that the Court misconceived issues when it erroneously relied on the cases of NIGER DAMS AUTHORITY VS. LAJIDE (1973) ANLR 495 and YADIS NIGERIA LTD. VS. GREAT NIGERIA INSURANCE CO. LTD. (2007) 14 NWLR (PT. 1055) to arrive at the judgment because the cases are different and distinguishable, more so the survey plan was not contradicted. He challenged the finding that the clause which provides that access road is to be provided was unknown, is contrary to evidence. Continuing in his submission, the Appellant argued that the finding of nonexistent access is perverse because the trial Court failed to interpret Exhibit B with regards to the covenant in the lease agreement.
He contended that the Court was competent to make an order for the performance of the clause in the agreement within a reasonable time, relying onEDEM VS. CANON BALL LTD. & ANOR. (2005) NSCQLR VOL. 22 809 and OLANIRAN VS. ADEBAYO (2008) ALL FWLR (PT. 410) 167. Appellant argued that it was not the case of the 1st Respondent that he had no such obligation instead, the 1st Respondent alleged that he did not sign Exhibit B. Appellant submitted that it was established by evidence that the only access to his house was blocked by the building put up by the 2nd Respondent contending that the covenant in Exhibit B was first in time. Appellant defined the word breach and contended that parties are bound by the covenants entered into and Courts are not allowed to make a contract for the parties, relied on OSUN STATE GOVERNMENT VS. DALAMI NIG. LTD. (2007) ALL FWLR (PT. 365) 438; AMEDE VS. UNITED BANK FOR AFRICA (2009) ALL FWLR (PT. 469) 479; ONYEKWELU VS. ELF PETROLEUM NIG. LTD. (2009) ALL FWLR (PT. 469) 426.
Appellant submitted that paragraph 7 of the Statement of claim was not traversed and is therefore deemed admitted therefore the trial judge missed the point because the Appellant enjoyed the access road earlier provided for 23 years without let or hindrance until the 1st Respondent attempted to build a kiosk before he sold the land to the 2nd Respondent. Issue three is a repetition of earlier arguments. There is no need to repeat them, however the issue having arisen in earlier issues, it shall be considered in the judgment.
The 1st and 2nd Respondent raised 3 issues for determination and submitted that the Appellant did not make out a case for easement because the land had been sold to the 2nd Respondent. They contended that the land sold to the Appellant did not include the drive in access because the size of the access was not stated in Exhibit B. They submitted that the 1st Respondent told the Court that the Appellant had no private access road. They argued that Exhibit P is different from what the 3rd Respondent approved in Exhibit V2 tendered by the 2nd Respondent because it does not show access road to the Appellant’s compound. They referred to Exhibits V, V1, V2 which shows the wide access available to the Appellant. They submitted that the evidence of 1st and 2nd Respondents remained unchallenged and uncontradicted and referred to OGUNWUSI VS. ELUSOJI (2004) ALL FWLR (PT. 237) 496 for what a claimant for easement must establish in order to succeed, namely:
i. That the land in dispute has been created a road
ii. That the defendant has interfered with the use of the road by illegally obstructing it.
The 1st and 2nd Respondent argued that the clause relied on by the Appellant was futuristic and uncertain as to when it would be provided, relied on EDEM VS. CANON (supra) to contend that the Court will never read into the contract what was never agreed upon because the Court only interprets or enforces the agreement or contract, citing IBAMA VS. SHELL DEV. CO. LTD. (2005) 24 NSCQR 190 and LARMIE VS. DATA PROCESSING LTD. (2005) 24 NSCQR 320. Furthermore, that no illegality was established and the evidence of DW3 corroborated it. Furthermore, Exhibit U, V, V1 and V2 show that 2nd Respondent complied with all regulatory directives. They relied on OKUNZUA VS. AMOSU (1992) 6 NWLR (PT. 248) 416 to submit that a claimant must prove the existence of assessment but that it was not established in this case. They further alleged that the evidence of the Appellant was contradictory when he said the house of the 2nd Respondent blocked his access and in another breathe he said the access was so narrow it can hardly take a car. They contended that the appellant failed to prove trespass and the 2nd Respondent complied with building regulations as confirmed by DW3. They argued that the trial judge evaluated evidence and also interpreted documents tendered by parties. They denied the contention that the trial judge imported extraneous facts into the determination of the claim and urged the Court to dismiss the appeal.
The Appellant in his reply to the 1st and 2nd Respondent?s Brief contended that the submission that the 1st Respondent performed all his obligations in Exhibit B is untenable because both parties are bound by their pleadings, citing OKWEJIMINOR VS. GBAKEJI (2008) ALL FWLR (PT. 409) SC; ADUA VS. ESSIEN (2010) ALL FWLR (PT. 535) 359; CHIME VS. EZEA (2009) ALL FWLR (PT. 470) and ATAMAH VS. EBOSELE (2009) ALL FWLR (PT. 473) 1385. He submitted that the 1st Respondent denied signing Exhibit B, but that the Court found that he actually signed Exhibit B, and referred to Paragraphs 6, 3, 11 and 12 of the amended statement of defence. Appellant submitted that the contention of the 1st Respondent here is contradictory and inconsistent with his earlier position. That having denied the existence of Exhibit B he cannot turn round to rely on the said Exhibit, relying on cases cited above, he submitted that the parties have to be consistent in presenting their cases. The Appellant in further submission referred to the evidence of 1st Respondent who admitted that the 2nd Respondent?s house blocked the entrance to the Appellant?s house and admitted the structures marked 7 in Exhibit P as Appellant?s house, therefore, they cannot argue to the contrary on that point.
Identifying the contradiction in the case of the 1st Respondent, the Appellant submitted that the 1st Respondent by paragraphs 8, 12 and 14 of his Amended statement of defence denied the existence of the access road and pleaded a survey plan meant to establish that the Appellant was not truthful but failed to tender the plan. Appellant submitted that having established the existence of the access road, the issue of its being futuristic does not arise when in reality it existed.
On the common access alleged by the 1st and 2nd Respondent, the Appellant submitted that it was not shown on any of the maps and is not backed up by evidence. He referred to the evidence of DW3 who admitted the existence of access road and Exhibit C is an approved building plan, he called it drive in blocked by 2nd Respondent and having so admitted the 3rd Respondent cannot turn round to contend that their approval of a building plan which blocks the access is not a violation of the Appellants right to access. He further argued that any other argument is academic and of no moment. He finally urged the Court to allow the appeal.
The 3rd Respondent argued the sole issue distilled by treating it 5 brief points and submitted that the 1st Respondent?s kiosk was demolished because it was built without permission and not in compliance with Cross River State Building Regulations. The 3rd Respondent dwelt so much on the demolition of the kiosk and foundation to establish the point that the demolition was due to failure to obtain the requisite building permit. Arguing further the 3rd Respondent submitted that DW3 established that the petition of the Appellant was discountenanced because it was baseless and the 2nd Respondent’s house does not block the access road. It argued that the appellant did not prove his case.
The 3rd Respondent on the declaratory relief seeking to nullify the approval given to 2nd Respondent submitted that there was nothing done that was illegal because approvals were duly given after conditions for the grant were fulfilled. It contended that the appellant has not established the required proof, relied on AREGBESOLA VS. OYINLOLA (2011) ALL FWLR (PT. 570) 1292 and SAIDI VS. IBUDE (2011) ALL FWLR (PT. 571) 1614 to say a declaration is not established by defendant?s admission because it has to be proved by evidence.
On the claim for damages arising from the destruction of his blocks and blockage and submitted that it was not particularized and not proved. Relied on O.M.T. CO. LTD. VS. IMAFIDON (2012) NWLR (PT. 1290) 332; NEKA BBB MANUFACTURING CO. LTD. VS. ACB LTD. (2004) 2 NWLR (PT. 858) 521 and S.P.D.C. (NIG.) LTD. VS. TIEBO VII (2005) 9 NWLR (PT. 931) 439.
The 3rd Respondent argued further that the relief seeking perpetual injunction was also not established and therefore it could not be granted, citing GREEN VS. GREEN (2001) FWLR (PT. 76) 795; AKAPO VS. HAKEEM-HABEEB (1992) 6 NWLR (PT. 247) and ADENIRAN VS. ALAO (1992) 2 NWLR (PT. 223) 350 to support its argument that the Appellant has the legal duty to prove his case and not rely on the weakness of the defence.
Finally, the 3rd Respondent urged the Court to dismiss the appeal.
RESOLUTION
The bone of the claim filed by the Appellant at the trial Court was fundamentally seeking to enforce his right of easement which was captured in the plan attached to the lease between the Appellant and the 1st Respondent, Exhibit B. There are other reliefs which are a fall out from the principal relief. The nature and rights conferred by easement was considered in the Supreme Court case of OLUSANYA VS. OSINLEYE (2013) LPELR-20641 (SC) wherein the Court had this to say:
“BLACKS LAW DICTIONARY 7TH EDITION defines easement as, “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 (such as to cross it for access to a public road). The land benefiting from an easement is called the dominant estate; the land burdened by an easement is called the servient estate. Unlike a lease or license an easement may last forever but it does not give the holder the right to possess, take from, improve or sell the land. In DEFACTO BAKERIES & CATERING LTD. VS. AJILORE & ORS. (1974) 1 ALL NLR PART II PAGE 385 @ 392, this Court defined an easement as, “a right enjoyed over the property of another person and must be created by a grant (express, implied or presumed, or by statute). It is not by itself an incorporeal hereditament in the sense that it is like other forms of personal property of being purchased or sold by anybody. It is rather a right appurtenant to a corporeal hereditament a right which is enjoyed as part of a real property…” See also GABRIEL OKUNZUA VS. E. B. AMOSU & ANOR. (1992) 6 NWLR PART 248, 437.”
It was established before the trial Court that Exhibit B made provision for an easement to be provided and the Appellant established by evidence that he had used the easement for over 20 years before the 1st Respondent sold the land to the 2nd Respondent and the 3rd Respondent approved the building which now blocked the easement. The trial Court sifted out the ingredients the Appellant must first prove to be entitled to the relief, see case of OGUNWUSI VS. ELUSOJI (2004) ALL FWLR (PT. 237) 496 which listed them as follows:
i. That the land in dispute has been created a road;
ii. That the defendant has interfered with the use of the road by illegally blocking it;
These two ingredients were established by evidence.
The Appellant clearly showed he had been using the access road for over 23 years and it was established in the survey plans marked as Exhibit P (structure identified as 4 is 2nd Respondent?s building marked by Beacon Numbers CR 405A, CR 4042A, CR 8676A, CRD 311), it clearly shows that the building raised by the 2nd Respondent blocked the access. The trial judge on the basis that the clause in the lease stated that the access shall be created and since none was created, it meant it was futuristic and not enforceable. In the case of DARMA VS. MUSTAPHA (2014) LPELR-23734 (CA) the Court stated clearly that easement is created by grant, express, implied or presumed, the Court held thus:
“Except where an easement can be shown to have arisen by prescription from time immemorial, must be created by a grant (express, implied or presumed) or by statute”. Per ABIRU, J.C.A.
If easement can be implied or presumed and where the Appellant had used the easement for over 23 years long without any hindrance from the 1st Respondent, the Appellant has acquired legitimacy on that piece of land as easement, see OLATERU-OLAGBEGI III & ORS. VS. MAJEKODUNMI (2013) LPELR-22167 (CA). If the 1st Respondent claim he did not approve of the easement on the survey plan attached to Exhibit B, then he can be conveniently compelled to do so.
However, in the clear picture that the easement had been in use for over 23 years, the Respondents can be restrained from interfering with the Appellants right to the use of the easement. The question of the grant being futuristic cannot come into consideration, it is academic having been overtaken by actual usage since the lease was entered into. When a clause in the lease has been performed without any formal notice, the Court will find such as performed. Even in the face of non specification of the time within which to provide the easement, it is trite that the Court can give effect by order of specific performance directing that it be performed within a reasonable time as held in the case of OLANIRAN VS. ADEBAYO (2008) 19 WRN 99 @ 35 relying on NIGERIAN BANK FOR COMMERCE & INDUSTRY VS. INTEGRATED GAS (NIG.) LIMITED (2005) 9 WRN 1 which held thus:
Where a party undertakes to do a particular thing and the contract is silent on time, that undertaking should be done within a reasonable time.
In any case, the time to perform the obligation was no longer an issue because the Appellant was using the access for over 23 years. The 1st Respondent is estopped from denying the obvious.
Usage over 23 years was proved and further confirmed by the earlier stop order made by the 3rd Respondent when the 1st Respondent attempted to build shops on the same easement. The 3rd Respondent had given approvals to the Appellant to construct his house with the provision in the plan as easement, they stopped the 1st Respondent who incidentally owns the land from blocking the easement, can it also say any blockage now is legal and justified. The apex Court in the case ofIPADEOLA & ANOR. VS. OSHOWOLE (1987) LPELR-1531 (SC) held as follows:
“Any Authority which operates a statute, which prohibits buildings within certain Building Line, and which thereupon approves the building of shops and offices to be built in such a manner that the shops and the offices face the main road, and then makes certain that the approval which has been granted is kept within the law, must necessarily expect a person, to whom such approval has been granted to take full advantage of such space which by operation of law must be kept open. A person with such advantage and with such approval acquired to himself the right to the advantage of the space between his building and the main road. He has an easement to the open space, and he could take an action to protect it.
In NICHOLLS VS. ELY BEET SUGAR FACTORY LTD. (1936) CH. 349, Lord Wright would appear to have put it graphically enough when he said – “Disturbance of easements and the like, as completely existing rights of use and enjoyment, is wrong in the nature of trespass.” Indeed, it is remediable, and as the learned law lord further said -“by action without any obligation or proof of specific damage.” Per ESO, J.S.C
I agree with the Appellant that the trial judge erred by his finding that the provision of easement was futuristic and not capable of performance, the clause had been given effect. The building plan approved by the 3rd Respondent – Exhibit B included the easement and the Appellant can by action enforce his right to it, having used it for over 20 years as held in OLATERU-OLAGBEGI?s case supra and in that case it was just mere usage over a long time that inured a right of action. Furthermore, the 1st Respondent admitted in his Amended Statement of defence that the Appellant has access and the building of the 2nd Respondent does not block the said access.
He did not raise the issue of an unperformed clause in the Exhibit B. In fact none of the parties did so, the trial judge raised it without giving parties an opportunity to address him on it. He should have called on parties to do so at the point he discovered it was a mute point. Here again, he made a case for the parties which should not be, see UNIVERSITY OF CALABAR VS. ESSIEN (1996) LPELR-3416 (SC).
The defence of 1st Respondent at the trial Court was that he did not sign Exhibit B but evidence proved otherwise and the trial Court also found that he signed it. In which case he had no problem with the question of access road but flatly denied he signed the lease. The trial Court in raising the issue of a clause being futuristic on behalf of the 1st Respondent was wrong. It was not his case and parties and the Court are bound by the pleadings of the parties, pleadings usually circumscribe the scope parties intend to fight the claim, see AKINTERINWA & ORS. VS. OLADUNJOYE (2000) LPELR-358 (SC) which held as follows:
“It is trite law that parties are bound by their pleadings: See OBMIAMI BRICK & STONE (NIG.) VS. A.C.B. LTD. (1992) 3 NWLR (PT. 229) 260. The essence of pleadings is to compel the parties to define accurately and precisely the issues upon which the case between them is to be fought, to avoid element of surprise by either party. It also guides the parties not to give evidence outside the facts pleaded as evidence on a fact not pleaded goes to no issue – see ONWUKA VS. OMOGUI (1992) 3 NWLR (PT. 230) 393; EMEGOKWUE VS. OKADIGBO (1973) 4 SC 113.” Per KATSINA-ALU, J.S.C
The Court below resolved the claim on an issue not pleaded nor was there evidence on it. Not being the case of the parties, the issue should not have been raised and that taints the judgment and makes it perverse. The Court took into account issues it should not have considered, that occasioned a miscarriage of justice. Those extraneous issues were not features that Appellant must prove in his claim.
The 1st Respondent made a feeble attempt at trying to show that there was another access road for the Appellant but failed to prove the second access road. In the provision of Exhibit B, it was not demonstrated by evidence before the Court and no survey plan was tendered to contradict the survey plan tendered by the Appellant which was approved by the 3rd Respondent. That access leads to the main road and is only logical to believe the Appellant when he gave evidence to that effect.
A claim is established by evidence or it fails by failure to proffer evidence, the proof in civil cases is on the preponderance of evidence and it is achieved as stated in the following case, see FBN PLC VS. MAINASARA (2004) LPELR-7368 (CA), it held thus:
It is not within the competence of a Judge to make a case for the parties. See ITAUMA VS. AKPE-IME (2000) 12 NWLR (PT. 680) 156 @ 175. A trial Judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on side of the scale and that of the defendant on the other side and weigh them together. He will then determine which is heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses.
The thrust therefore in this approach is to enable the trial Court to determine the dispute upon the principle that in civil cases, disputes between parties ought to properly be decided on the balance of probabilities. See MOGAJI VS. ODOFIN (1978) 3-4 S.C. 91 and USMAN VS. GARKE (2003) 14 NWLR (PT. 840) 261 @ 279.” Per BA’ABA, J.C.A
The judgment again failed to demonstrate that the logical test of whether the Appellant proved his claim or not was not achieved. The judgment is certainly against the weight of evidence and cannot be allowed to stand.
On alleged breach of the terms of the lease – Exhibit B, the Court below found that no clause was breached. The lease – Exhibit B has a survey plan attached which made provision for easement in favour of the Appellant, the 1st Respondent sold a portion of his land which included the provision for easement to the 2nd Respondent and the 3rd Respondent gave approval for a building to be erected blocking the access. If that is not a breach then one would ask what would then amount to a breach. Paragraph 4 of Exhibit B provides as follows:
That the Lessor will provide a permanent free entrance into the said piece of land for the lessee and that the lessee covenants to keep the said land properly fenced against encroachment or trespass.
The act of selling a portion of the easement upon which the 2nd Respondent built his house which eventually blocked and denied the Appellant easy passage is a breach of the said covenant and this was after 23 years of unhindered usage. The action of selling the land to the 2nd Respondent kick started the breach. The argument of the 1st Respondent that there was no obligation to provide access is coming too late, even if there was no such obligation, the Appellant having used the access for over 23 years entitles him to seek redress and that is in addition to the clause 4 in Exhibit B which imposes a duty on the 1st Respondent. Cardinal rule of interpretation of document or judgment was succinctly stated in the case of NWEGBU VS. NWEGBU (2017) LPELR-42680 (CA) thus:
“There is no gain saying that by canons of interpretation documents like words are to be construed in their ordinary and grammatical meanings. To this end, the words used in a document must be given their ordinary meaning in the con in which they appear and in no circumstance may new and extraneous words be imported into the of the document except the document would be incapable of meaningful interpretation without the additional words being incorporated into the . NWANGWU VS. NZEKWU 3 FSC 36 AT 37 Indeed, the Court must give full interpretation to the portion of the document relating to the issue before it. As it is the cardinal principle of interpretation of documents that parties are presumed to have intended what is contained in a document to which they have subscribed. See: MAXIMUN INSURANCE COY. LTD. VS. OWONIYI (1996) 1 NCLC (NIGERIAN COMMERCIAL LAW CASES) (PT. 1) 141 AT 145. This is because, it is not the function of the Court to make a contract between the two parties or to rewrite the one already made by them, but it is the Court’s duty to construe the surrounding circumstances including written and oral statements to effectuate the intention of the parties. See: OMEGA BANK (NIG.) PLC VS. OBC LTD. (2005) ALL FWLR (PT.249) 1965 at 1967, OYENUGA VS. PROVINCIAL COUNCIL OF THE UNIVERSITY OF IFE (1965) NMLR 9, STANDARD (NIG) ENGINEERING COY. LTD. VS. NIG. BANK FORCOMMERCE AND INDUSTRIES. (2006) ALL FWLR (PT. 316) 255, BAKER MARINE (NIG.) LTD. VS. CHE VRON NIG. LTD. (2006) 13 NWLR (PT. 997) 276 @ 287 -288.” Per OWOADE, J.C.A.
The Court below erred in interpreting Exhibit B particularly paragraph 4 which obligated the 1st Respondent to create easement for the Appellant, to say otherwise is erroneous. It is trite that Parties are bound by the agreement they willfully and voluntarily entered, see AMINU ISHOLA INVESTMENT LTD. VS. AFRI BANK NIG. PLC (2013) LPELR-20624 (SC) which held as follows:
“Parties are bound by the terms of an agreement freely entered into by them and the duty of a trial Court is simply to give effect to that agreement freely entered into by the parties and not to make a new agreement for them. This is an age old legal principle – a notorious one for that matter and there is a plethora of case law on that subject matter. See AFROTEC TECHNICAL SERVICES (NIG.) LTD. VS. MIA & SONS LTD. & ANOR. (2000) 15 NWLR (PART 692) 730; (2000) 12 SC (PT. 11) 1; (2000) ALL NLR 533; BOOKSHOP HOUSE LTD. VS. STANLEY CONSULTANT LTD. (1986) NWLR (PART 26) 87 @ 97.”
The finding that the Appellant failed to satisfy the second condition named in the case of OGUNWUSI VS. ELUSOJI (supra) is not backed by pleadings and evidence. Paragraph 7 of the Statement of Claim in clear terms pleaded the usage of the easement since 1973 to the knowledge of the 1st Respondent and without hindrance until he sold it to the 2nd Respondent who then blocked the access for the Appellant. This was supported by evidence and not controverted by the Respondents. There was no conjecture in the case of the Appellant because the covenant is clear and straight forward, the 1st Respondent is bound by such covenant and had allowed the Appellant to enjoy the access for over 23 years before the blockage. The 2nd Respondents house on the portion that blocked the Appellant?s access is illegal and amounts to trespass.
The 1st and 2nd Respondents contended that the size of the land for the access was not specified and therefore it cannot be enforced, this argument is preposterous because Exhibit B clearly shows the access designated and reflected in the survey plan and the plan is drawn to a scale so size cannot be an issue. If the said Exhibit B had not shown the size of the access on the survey plan, the said easement in use for 23 years would still avail the Appellant. The 3rd Respondent was approbating and reprobating and that is not allowed. The same agency had refused 1st Respondent but turned round to allow the 2nd Respondent without protecting the interest of the Appellant already in existence. Their seeming justification of the blockage is wrong and depicts of bias. The case of the Appellant was not that the building of the 2nd Respondent offended building regulations but it affected existing the right of easement which is actionable. The Court is enjoined to protect such a right, seeDEFACTO BAKERIES & CATERING LTD. VS. MRS. A. AJILORE & ANOR. (1974) LPELR- 933 (SC) and BRAITHWAITE VS. STANDARD CHARTERED BANK OF NIG. LTD. (2011) LPELR-12656 (CA).
Flowing from above resolution, the appeal is meritorious and it succeeds. The judgment of the Court below delivered on the 20th day of June, 2008 is hereby set aside. I now proceed to consider the reliefs of the Appellant. Reliefs one and two are granted as prayed. Relief three was not canvassed by the Appellant in the appeal, it is therefore not granted. Relief four is granted as prayed. Relief five is also granted. On relief six, the Court awards the sum of N500,000.00 (Five Hundred Thousand Naira) only as general damages. Special damages not established and a perpetual injunction is hereby granted restraining the respondents, their agents, privies and assigns from tampering with or disturbing the Appellant’s Right of way to his property at Number 27 Odukpani Road, Calabar and as depicted in the survey Plan attached to Exhibit B.
Cost of N100,000.00 (One Hundred Thousand Naira) Only is hereby awarded in favour of the Appellant and against the Respondents.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to read, in draft, the erudite leading judgment delivered by my learned brother: Yargata Byenchit Nimpar, JCA. I am in full agreement with the reasoning and conclusion of it. I have nothing useful to add to the well-articulated judgment. I, too, allow the appeal and abide by the. consequential orders decreed in the leading judgment.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the advantage of reading in draft the judgment of my learned brother, Yargata B. Nimpar, JCA in this appeal. I agree with it.
The trial Court having found as a fact that the building plan approved by the 3rd respondent, Exhibit B included the easement and the appellant having used it for 23 years, it was therefore not logical to say that the appellant did not prove his right to easement over the access road. All evidence must be considered before judgment and that private examination in search of evidence by Court is not proper.
In the present case, usage of 23 years was proved and further confirmed by the 3rd respondent when the 1st respondent attempted to erect a shop on the said access road.
For this reason and the fuller reasons given by my learned brother in the lead judgment, I too allow this appeal. I abide by all the consequential order as to costs.
Appearances:
Imo Inyang, Esq.For Appellant(s)
Ikoi Igbor, Esq. for the 1st and 2nd RespondentsFor Respondent(s)
