FRENCH JOGA (NIG) CO. LTD v. EMIOVWO
(2022)LCN/16686(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Friday, May 13, 2022
CA/AS/321/2017
Before Our Lordships:
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
FRENCH JOGA NIGERIA COMPANY LTD APPELANT(S)
And
MADAM DIAMOND EMIOVWO RESPONDENT(S)
RATIO
WHETHER OR NOT PARTIES AND THE COURTS ARE BOUND BY THE ISSUES TO BE TRIED
This means that the parties and the Court are bound by the narrow issues to be tried, all other issues are admitted. I shall therefore discountenance the argument that the declaration has not been proved. See the cases of CHIEF AKUJOBI DAVID OSUAGWU v CHIEF CHARLES EMEZI & ORS (2013) LPELR – 22030 (CA), ABIODUN OLAOSEBIKAN v INEC (2009) LPELR – 8513 (CA). PER OBASEKI – ADEJUMO, J.C.A.
THE BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND
In a claim for declaration, it is trite that title must be established by credible evidence, the identity, genealogy is tied to a definite parcel of land. See SUNDAY ABIONA v ADELEYE OGUNJOBI (2014) LPELR – 22940 (CA), AWOTE v OWODUNNI (1997) 2 NWLR (PT 964) P. 337, NWOKIDU v OKANU (2010) 3 NWLR (PT 1181) P 362. PER OBASEKI – ADEJUMO, J.C.A.
ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Honourable Justice J. E. IKEDE of the Delta State High Court sitting at Jeremi division delivered on 8th December, 2016 wherein judgment was entered in favour of the Respondent. The claims of the Appellant/Claimant at lower Court per his statement of claim at pages 5 – 6 of the record was for the following reliefs:
a) A declaration that the claimant is entitled to quiet and peaceable of all that piece and parcel/and or parcel of land lying and situate at plot 9 along UGBOMRO ROAD, UGBOMRO IN UWVIE LOCAL GOVERNMENT AREA OF DELTA STATE measuring approximately 7445.880 square mts
b) A declaration that claimant is entitled to the right of easement to the claimant land and a setback between the claimant land and the road.
c) Perpetual injunction restraining the defendant, her agents, servants and or privies and whomsoever from trespassing and erecting and/or building on the right of easement, setback, under the PHCN power line and/or dealing on the said piece of land at the front of the claimant land lying and situate at plot 9 along Ugbomoro road Ugbomro in Uvwei local Government Area of Delta state, Nigeria measuring approximately 7445.880 sq meters
d) Refund of the sum of N1,000,000,00 (one million naira) collected by the defendant from the claimant to convert the sublease to freehold
e) Sum of N10,000, 000.00 (Ten million Naira) against the defendant being general damages.
Dissatisfied with the judgment, the Appellant filed a notice of appeal on 7th March, 2017.
Parties exchanged briefs sequel to the rules of Court. The Appellant filed his brief on 10th May, 2019 settled by Felix Ese Akpovwovwo Esq., of APEX JURAL LEGAL PRACTITIONERS, wherein he settled three issues for determination thus:
1) Whether the learned trial Judge was justified in law in holding that there was no evidence led to support the Appellant’s claim before him since the Appellant’s manager failed to adopt his witness statement on oath?
2) Whether the learned trial judge was right in holding that the Appellant’s witnesses (CW1 & CW2) cannot be regarded as expert witnesses and that their evidence failed to support the claim of the Appellant.
3) Whether the trial judge did not misdirect himself on the evidence before him when he held that there was conflict as to the structure in front of the Appellant’s land.
On the other hand, the Respondent filed his brief on 11/6/19 and same was settled by U. M. Akpokabayen – Ase (Mrs) of JAMES OGWOR & ASSOCIATES wherein she settled a sole issue for determination thus:
Whether the evidence adduced by CW1 and CW2 was credible, cogent and succinct to warrant the learned trial judge to exercise its discretion in favour of the Appellant.
APPELLANT’S ARGUMENTS
ISSUE 1
The Appellant submitted that the decision was perverse having regard to pleadings and evidence adduced at trial, he referred to paragraphs 4, 5, 9, 14 and 15 of the Appellant’s statement of claim which highlights the Appellant’s case.
Appellant relied on Exhibit B; Litigation Plan No BSE/LD/DT/016/2014 dated 20th March, 2014 which sets out the full perimeter of the Appellant’s land and are upon which the Respondent committed infractions by putting tenants on the land which ought to be set back and right of way and PHCN electricity transmissions lines verged green in Exhibit B.
He contended that failure to specifically traverse the claim amounts to admitting same, he cited BAMGBEGBIN v ORIARE (2009) ALL FWLR (PT 1460), EFET v INEC (2011) ALL FWLR (PT 565) 203 SC.
He further contended that the crux is whether the space in front of the Appellants land constituted a set back/right of way or easement to the road and PHCN Electricity Line that ran in front of the conveyed land and as such whether the Respondent had rights to deal with the land by renting same to tenants having divested herself of title to the land by conveying same to the Appellant.
Appellant posited that identity is not in issue, the parties need not prove boundaries and features thereon and that Appellant has satisfied the vital preconditions. He referred to the evidence of CW1 & CW2 (the town planner and surveyor) which he states strengthens his case at page 64 and their evidence were not controverted or rebutted in cross-examination by the Respondent. He submitted that evidence of CW2 corroborated that of Cw1 and the Respondent did not know the distant from the space to the P.H.C.N that it is a right of way or set back which the Respondent was not entitled to.
Appellant defined an easement as a right annexed to land to enjoy or utilize another land owned by another in a particular way and may give additional right to, he cited OKUNZUA v AMOSU (2011) 6 NWLR (PT 1242) 85.
Appellant referred to Town Planning Authority which CW1 represented as a body created by statue Sections 3(4), 5(b), 11(1) & (3), 27(5) and 28 of the Nigerian Urban and Regional Planning Act. He cited OGUNWUSI v ELUSOJI (2003) 37 WRN 34 CA to submit that when the appropriate town planning designate an area the space or setback to be observed between the road and electricity lines and the property no one has the right to venture into the reserved area.
He further submitted that the trial judge’s findings that failure of the manager to adopt its statement was fatal and the finding that there was no proof was an error in law. He cited the cases of ONOWHOSA v ODIUZOU (1999) 1 NWLR (PT 586) 173 @183 A-B, EZEANAH v ATTA (2004) 7 NWLR (PT 873) 468 at 495 D-F, MUSA v YERIMA (1997) 7 NWLR (PT 511) 27.
Appellant submitted that evidence of technical matters are best resolved by witnesses from the appropriate regulatory bodies which in this case is by the Town planning Authority as regulatory bodies which is the Town planning authority as CW1 and a Registered Surveyor CW2 who gave credible evidence. He urged that this issue be resolved in his favour.
ISSUE 2
Appellant contended that CW1 and CW2 were experts in their respective field and that the Court erred in law when he said they testified of their personal knowledge which cannot be regarded as expert evidence. He submitted that they were both subpoenaed by the Appellant and cited NIGERIAN URBAN AND REGIONAL PLANING ACT AZU v STATE (1993) 6 NWLR (PT 229) 303; WAMBIA & SAMBO v KANO NA (1965) NMLR 15; PROF TONY UKAM’S EVIDENCE COMPENDIUM 2012, 7 QUICK REFERENCE REPORT 664-665.
He submitted further that the evidence of CW1 & CW2 were not contradicted, unshaken and uncontroverted on the key issue of required set back distance between the Appellant’s land and the road/high tension PHCN Transmission Lines and the Court has a duty to act on the unchallenged evidence before him. He cited AUGUSTINE OBINECHE VS HUNPHERY AKUSOBI (2010) 12 NWLR (PT. 1208) 383 and OYAKHIRE V GEORGE OBASEKI (1986) 1 NWLR (PT 19) 735.
ISSUE 3
Appellant submitted that the lower Court misdirected itself when he held that there was conflict as to structures in front of the Appellant’s land and on that basis dismissed the claim. The CW1 & CW2 were in tandem on where the structures were located and the distance between it and the land itself which ordinarily is a setback, and its immaterial whether they are temporary or permanent structures, that there is minimal differences in their evidence. He cited OSADIM v TAIWO (2010) 6 NWLR (PT. 1189)1 55 at 180 C-E, GIRA v STATE (1996) 4 NWLR (PT 443) 375, OLADAPO v BANK OF NORTH (2001) 1 NWLR (PT 694) 255, PRINCE KAYODE OLOWU v BUILDING STOCK LTD (2010) 2 NWLR (PT 117) 310, OMISADE v QUEEN (1964) NMLR 67 to the effect that a trial Court must give sufficient reasons for disbelieving or preferring one set of evidence to another in any trial especially expert evidence.
RESPONDENT’S ARGUMENTS
The Respondent submitted that the arguments in support of the sole issue would respond to the issues proffered by the Appellant and further submitted that a party swims or sinks with the case he puts forward, she referred to the cases of AGBI v OGBEH (2006) 11 NWLR (PT 990) 65, DADA v DOSUNMU (2006) 18 NWLR (PT 1010) 134 at 171 PARA G – H, ENEKWE v IMB NIG LTD (2006) 19 NWLR (PT 1013) 146 at 172 PARA E-H, ALAO v AKANO (2005) 11 NWLR (PT 935) 160 P. 173, MAJA v SAMOURIS (2002) 7 NWLR (PT 765) 7.
Respondent submitted that the case put forward by Appellant are hinged on two declaratory reliefs.
On CW1 and 2, she submitted that the evidence falls shut of evidence that was succinct, cogent and credible as they only came to give evidence as regards area of expertise, she referred to PETERSIDE v WABARA (2011) 6 NWLR (PT 1243) 32 at 337. She submitted that the evidence of CW1 & CW2 did not prove the claim and relied on ALAO v AKANO (2005) 11 NWLR (PT. 935) 160, AWOYOOLU v ARO (2006) 4 NWLR (PT 971) 481, TUAH V MICHEAL (2010) 10 NWLR (PT 1303) 534 PAR A-C, EGBA v APPAH (2005) 10 NWLR (PT 934), AWUSE v ODILI (2005) 16 NWLR (PT 925) 416, ADEMESO v OKORO (2005) 14 NWLR (PT 945) 308 318.
Counsel further relied on OLUSANYA v OSINLEYE (2013) ALL WFWLR (PT 693) 1930 on recognized easements and stated that the Court is not bound to accept any evidence just because it was adduced by experts, she cited the cases of AKEREDOLU v MIMIKO (2014) 1 NWLR (PT 1388) 402, EGESIMBA v ONUZURUIKE, EGBA v APPAH (2005) 10 NWLR (PT. 934) 464 at 480, ONWUCHEKWA v EZOGU (2002) 1 NWLR (PT 799) 333 P345 in aid.
RESOLUTION
I have examined the issues for determination distilled by parties and I am of the view that the Appellant’s issues are apt and encompass the Respondent’s issue. I shall adopt the Appellants’ issue for the purposes of this appeal.
I shall take issues 1 and 2 together as the dovetail into another.
ISSUES 1 AND 2
These two issues deal with whether the evidence led by the Appellant was sufficient proof of his claim? What exactly is his claim?
The main claims are declarations that the Claimant is entitled to quiet and peaceable possession of all 7445.880sqmts, that he is entitled to the right of easement to the Claimant’s land and a setback between the claimant’s land and the road. The success of these would entitle him to an order of perpetual injunction in his favour and damages as well as a refund of N1,000,000 (One Million naira). What was the evidence adduced by the Appellant? It was the evidence of CW1 (Senior Town Planning Officer) who was on subpoena and CW2 the land surveyor from the independent surveyor, they both testified on the sighting of the property and gave the measurement of the distance between the PHCN and the house and where the legal setback ought to be and the observation of the environment in front of the property.
At pages 4 – 5 of the record is the statement of claim of the Appellant, he averred that he bought outright from the Respondent, the Respondent has no land in the vicinity except for the set back around the place and the PHCN Power lines which would be called free space but legally is not. The complaint of the Appellant is that Respondent let that space to various people who have constituted obstacle to the right of way and easement to his property and that he has right of easement and right of setback. See paragraphs 3 – 15 of the statement of claim.
The statement of claim was frontloaded with a deed of sublease together with survey plan, see pages 12 – 17 of the Record. On 14th May, 2014, the Appellant were granted leave to file litigation plan and list of witnesses.
In a claim for declaration, it is trite that title must be established by credible evidence, the identity, genealogy is tied to a definite parcel of land. See SUNDAY ABIONA v ADELEYE OGUNJOBI (2014) LPELR – 22940 (CA), AWOTE v OWODUNNI (1997) 2 NWLR (PT 964) P. 337, NWOKIDU v OKANU (2010) 3 NWLR (PT 1181) P 362.
This is a peculiar case in which it is not in doubt that the property was bought from the Respondent, the extent of land is not in issue, location and identity is also not contested. What is in issue is whether the area in front of the said property constitutes a setback which belongs to or is under the control of the Appellant?
I am further fortified by proceedings of 3rd March, 2014 at page 98 of the record, where the Court held thus:
“The matter is for pre-trial. The pre-trial is concluded and it is agreeable to parties and counsel, that the claimant is entitled to easement but in disagreement as to the size of the easement.”
“On the agreement of counsel, this case is adjourned to the 27/3/2014 for hearing of the only issue for determination in this case, which is the size of easement which the claimant is entitled to.”
SGD: JOSHUA EFEMENA IKEDE
JUDGE
3/3/14
It is therefore clear that there was an agreement between parties that it is only the issue of size of easement that was to be tried, and was left to be tried in the action.
This means that the parties and the Court are bound by the narrow issues to be tried, all other issues are admitted. I shall therefore discountenance the argument that the declaration has not been proved. See the cases of CHIEF AKUJOBI DAVID OSUAGWU v CHIEF CHARLES EMEZI & ORS (2013) LPELR – 22030 (CA), ABIODUN OLAOSEBIKAN v INEC (2009) LPELR – 8513 (CA).
In the light of the above, this appeal shall be resolved based on the agreed issue(s) for determination from the pre-trial conference.
The averments relevant to this issue are paragraphs 5, 6, 7, 11, 13 & 14 of the Statement of claim, hereunder reproduced for clarity purposes:
5. The land space in dispute is known to both parties.
6. Sometimes in August, 2010, the Defendant begin to collect rents from a tenant who was using a space on the claimant’s land for block molding.
7. When the act of trespass by the Defendant came to the knowledge of the Claimant, the Claimant summoned the tenant, one Andrew Ossia and ask the tenant to leave the land. The claimant at the trial shall rely on a copy of a solicitor letter written to the tenant.
13. The Claimant have been exercising right of ownership and possession over the entire land including the Right of Easement and Set Back undisturbed until the Defendant broke into the land.
14. The Claimant have right of Easement and Right of Set Back to its land.
The Appellant issued through the Court subpoena ad testificandum to the permanent secretary/officer in charge, Ministry of Land and Urban Development, Asaba – Mr Festus Otive Mekako – CW1, his statement on oath is at page 64 and Surveyor Oborairuvwe U. Charlyson – CW2 his statement on oath is at page 57 of the record.
Cw1 is a civil servant in the Ministry of lands. He is a Senior Town Planning Officer with the Ministry of Land, Survey and Urban planning (Town Planning Office Warri). He was subpoenaed to investigate, ascertain and to give evidence as to the allowable/approved measurement as set back/easement between the Road and the Appellant/Claimant’s landed property at Ugbomro road, Ugbomro in Uvwie Local Government Area, Delta state. His observation was produced at paragraph 5 of his Witness statement on Oath thus:
a) “The frontier approach of land has a length of approximately 116.87meters.
b) Proximately at the front of the land is a 220kva transmission power line (PHCN) that ran above and parallel to the Claimant’s land which minimum right of way should be 45meters.
c) Between the road and the Claimant’s land lay some make shifts structures, Coldroom, block industry etc.
d) I discovered also that the right of way/set – back/easement between the land and the power line to the road is 25.6meters which falls short of 45meters, the allowable distant for high tension/utility set back/Easement.
e) The allowable distance which is Town Planning Standard between a road and landed property is minimally 45meters to where the High Tensions.”
Under cross-examination, he maintained his evidence. It was not challenged. He added that he did not observe access road for the Claimant to get to his land as there were block moulding business going on and these constituted the blocking of the access road; that 45meters is the distance between a high tension and place any one can occupy should be 45 meters and that the structures at the front of the land were temporary structures. See pages 100 – 101 of the Record.
Cw2 – Surv Oborairuvwe Charley son’s statement on oath which he adopted was to the effect that he was commissioned to investigate and ascertain the allowable/approved measurement as set back/easement between the road and Claimant’s landed property. He was shown the survey plan of the property, he took measurements between the road and the land, he made the litigation plan No. BSE/LD/DT/016/2014 which was tendered as Exhibit B.
He observed:
a) “The frontier approach of the land has a length of approximately 116.87m.
b) Proximately at the front there is a 220KVA transmission Power lines (PHCN) that ran above and parallel to the Claimant’s land which minimum right of way should be 45.72m from the centre line.
c) Between the road and the Claimant’s land, lay some makeshift structures, blocks etc.
d) Though a reasonable and original distant between the road and claimant land was observed, the said distance which is minimally 15m from the road was completely built on and covered with features like block wall, batchers, blocks throughout the full length of 116.87m of the claimant land and even under power lines.
e) The allowable distant between a road and landed property is minimally 15meters and normally runs parallel to the road.”
See pages 57 – 58 of the record.
Under cross-examination, he stated that he entered from the main road where there was partial access about 50ft which he says is sufficient access fixed by surveyors council and that complains on set back are made to Town Planning authority. He further stated that where there is high tension the setback is 150ft while low tension is 50ft.
His evidence was not contradicted or challenged by the Respondent.
The above was proof of the easement/accessibility agreed by parties, it is clear that the access was obstructed by activities of the tenants the Respondent put on the land, there was a high tension wire which was apposite the property and the tenants are spread right under it.
Being that the measurement is 15meters minimal which was heavily built up it breaches the law that puts a distance between high tension and occupation.
It follows that the Appellant by law, who bought the land is entitled to easement but upon the measurement of 15mm (distance from road to land) whatever has been eaten up by the presence of tenants of the Respondents who have covered the frontage of the Appellant and left a partial access.
From the evidence of both parties, the easement falls under the high tension which is prohibited from being occupied by anybody by the Surveyors’ regulation; it then means the Appellant cannot be enjoy the benefit of the same.
The question is whether the Respondent is entitled to same? First and foremost, I cannot understand how the Respondent can sell a parcel of land and without owning any other in the vicinity, claim ownership and/or easement of the set back/easement land space in front? It is an aberration!
The Appellant having bought the land should control the space in front of the land not the Respondent. There is no law empowering her to such an entitlement. Furthermore, the regulation of both Town planning and Surveyors has assessed a limit for occupation and therefore these are outside the limit. The structures whether permanent or temporary is irrelevant, they are largely artisans, the presence of anybody installed by the Respondent with her licence or permission is outside her powers, she has no control or rights over the area so cannot give what she does not have.
I am satisfied by the evidence of the two surveyors; one is a State Government surveyor with the Town Planning Department of Ministry of Lands, what more qualification is needed. The second is a private surveyor registered with the Surveyors Council, even if not an expert, their evidence was unshakable nor controverted, neither did the Respondent bring a better person versed in measurements and Government town planning laws.
The ambit of their evidence was to prove the size of easement available and to be entitled to Appellant (see issues agreed upon at pre-trial) and nothing more. I therefore disagree with the lower Court, who exceeded the limit and scope of issues to be tried. The lower Court fell into error when he disregarded the evidence of the Appellant’s witnesses and held at page 114 that:
“I have already set out the claimant’s claim in this judgment and the evidence led by the two witnesses and no evidence was led to support the declaration that the claimant is entitled to any relief whatsoever. I am therefore in agreement with defence counsel submission, that though it is trite law that a plaintiff indeed any party need not himself appear at the trial to testify if it is possible for him to produce evidence at the trial to establish his case.”
As regards the evidence of the CW1 & CW2, it is pertinent to state that it was only the size/measurement of easement entitled to the Appellant that was left to be proved, it was in proof of this that, the Appellant called only the Senior Town Planning Officer with the Ministry of Lands and a Surveyor. In defining a Town planner, the Oxford Learners dictionary states that; it is a person who plans the way in which towns and cities are built in order to make them pleasant/convenient to live in. This means it is the area of set backs, easement, overshooting boundaries of building. Again for risk of emphasis, his evidence was not controverted. Therefore, the witness is perfectly qualified to testify in respect of complaints of easement, set backs and size allotted to each person if any. He puts set back in high tension at 45meters and that the Appellant has a short fall from his fence.
CW2 who made the litigation plan and demonstrated the plan in Court showing area of partial access and allowable access by the Surveyors Council at 50ft and if high tension it is set back is 150ft.
By the nature of his job, I am of the view that his evidence covered the area of disagreement.
Cw1 stated the set back is to be 45meters while Cw2 puts it as fixed by Surveyors Council to be 50ft and in high tension 150ft. There is evidence that there is high tension, I do not find a conflict each belong to different professional bodies and set their standards. Notwithstanding, the fact that 45 meters to feet is approximately is 148fts. The difference is minimal. The most important fact from both evidence is that the area in contention is in breach of a set back, therefore no activity can take place there. Furthermore, the Appellant has also been affected adversely by activity of the tenants and also his peaceful quiet enjoyment of his land, which has been devalued by these artisans. There is common strong evidence of their presence – batcher, cold room, and blocks all over the area.
On the whole, the evidence support the Appellant’s claim, in that the space belongs to nobody but under the control of the Appellant but the Respondent is in breach of the regulation which is a safety regulation. She has no business there and cannot put tenants on the land.
I resolve issues 1 & 2 in favour of the Appellant.
ISSUE 3
The evidence of the two witnesses; CW1 was to the point that it was occupied by temporary buildings, mainly blocks scattered all over the place and none permanent in nature while between the road and the Claimant’s land lay some makeshifts structures, Coldroom, block industry.
CW2 said makeshift structures, blockwall, batchers and blocks laid between the Appellant’s land and the road even under the power lines.
Now structures seen were block industry, cold room, make shift these were activity occupying the front of the Appellants property such that gave partial access to his property but when compared with Exhibit B litigation plan it shows only temporary structures.
I believe the question of importance is whether the nature (permanent or temporary) affects the implication of the law of the Town Planning Authority and Surveyors Council?
The nature of the structures found on the setback/easement are of little or no consequences; it is immaterial whether the developments were permanent structures or temporary structures. What matters is whether or not they exist, whether these structures are in front of the Appellant’s land in a space that ought to be reserved as a setback/easement. All of the structures mentioned, that is, the coldroom and block industry also have their crude and makeshift form and necessarily don’t have to be the permanent and sophisticated form.
The Appellant’s witnesses (CW1 & CW2) testified about these structures (permanent or temporary) and their evidence were not controverted by the Respondent.
Therefore, I shall resolve this issue in the affirmative that the lower Court misdirected himself when he held that there was conflict as to the structure in front of the Appellant’s land.
On the whole, the appeal is meritorious and is accordingly allowed. The judgment of Honourable Justice J. E. IKEDE of the Delta State High Court sitting at Out – Jeremi division delivered on 8th December, 2016 wherein judgment was entered in favour of the Respondent is hereby set aside. judgment is entered in favour of the Appellant as follows:
a. A declaration that the claimant is entitled to quiet and peaceable possession of all that piece and/or parcel of land lying and situate at Plot 9 along Ugbomro in Uvwie Local Government Area of Delta State, Nigeria approximately 7445.880 Square meters.
b. A declaration that claimant is entitled to the right of easement to the claimant land and a set back between the claimant land and the road.
c. Perpetual injunction restraining the defendant, her agents, servants and or privies and whomsoever from trespassing and erecting and/or building on the right of easement, setback, under the PHCN power line and/or dealing on the said piece of land at the front of the claimant land lying and situate at plot 9 along Ugbomoro road Ugbomro in Uvwei local Government Area of Delta state, Nigeria measuring approximately 7445.880 sq meters
d. Sum of N5,000, 000.00 (Five million Naira) against the Respondent being general damages.
The cost of N200, 000 is awarded against the Respondent.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read the draft of the leading judgment in this appeal as written and delivered by my earned brother, Abimbola Osarugue Obaseki-Adejumo, JCA, and I agree that the appeal has merit.
The Appellant had established its right of easement in respect of title to land, not disputed but in respect of which the right of easement and/or right of way (i.e egress and Ingress and pollution and noise-free) state has been blocked by people, who are said to be the Respondent’s tenants.
Whether they were put in by the Respondent on fee/rent as licensees or were squatters, none between the benefactor and beneficiaries could legally confer or enjoy any right to the portion of the land said and testified to, as a set-back to the Appellant’s property validly purchased by the Appellant.
The fact of liability in crime or damages, consequent, the violation of right conferred on the State by the fact of the abutment of the Power Holdings of Nigeria’s Electric poles/installations/Cables, Public Road e.t.c. makes the public institutions the only authority or person with a right over that space or portion of land reserved and described as a setback. It is not a “bona Vacantia”, but a public property.
The Appellant, who had a right of easement or enjoyment of the entry and exit to its property, cannot have any encumberance thereto erected by anybody else, other than the public Authorities (entitled) and even then, only upon proof of overriding public interest.
Not even the Respondent, who would be a trespasser as squatters may, at the instance of the Appellant or Attorney-General be ejected from the scene for not only violating the proprietary right of the State but may be sued in damages for nuisance.
There was no evidence of an un-exhausted legal portion of land anuring to the Respondent, upon which licences or leases could be granted or occupiers or squatters could be allowed by him.
I concur.
JOSEPH EYO EKANEM, J.C.A.: I agree with the reasoning and conclusion of my learned brother. OBASEKI-ADEJUMO, JCA. that the appeal has merit. The appellant having bought the land from the respondent, who thus divested herself of her title thereto, and having been built thereon was entitled to the right of easement and set back in respect of the land in the front of the property.
The fact that appellant’s manager did not adopt his written deposition is of no moment since there is no rule of law or practice which requires a plaintiff in a civil suit to testify if he can otherwise prove his case. See Imam v. Sheriff (2005) 4 NWLR (Pt. 914) 80, 162. The appellant was able to prove its case by the evidence of Cw1 and CW2
On account of the foregoing and the comprehensive reasons marshaled in the lead judgment of my learned brother, I hold that the appeal has merit and I allow it. I set aside the judgment of the trial Court and abide by the consequential orders made in the lead judgment
Appearances:
Felix E. Akpovwovwo. For Appellant(s)
U. Makpotia Bayen-Ase. For Respondent(s)
