Lawrence Osuoha V. Leonard Ofodum & Anor (2017)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Imo State High Court in Suit Nos. HO/44/88 and HO/50/88 (consolidated), delivered on 18/8/97 by Hon. Justice B.A. Njemanze (as he then was), wherein the trial Court gave judgment in favour of the Plaintiff in Suit No. HO/44/88 and dismissed the Suit No. HO/50/88.

In Suit No. HO/44/88, the Plaintiff therein (now Respondent) had sought:

(1) ?A declaration that the Plaintiff as the owner of house and appurtenance adjacent to the defendant?s premises is entitled to have his house and appurtenance supported by the defendant?s adjoining land.

(2) N50,000.00 special and general damages for wrongful interference with support of adjoining house and appurtenance, nuisance and negligence.

(3) Perpetual injunction restraining the defendant, his agents, privies and/or his servants from further acts of interference with Plaintiff?s peaceful enjoyment of his premises.? The Suit was filed on 23/6/1988.

In his Statement of Claim, the Plaintiff alleged that the defendant damaged his (Plaintiff?s) house

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due to negligence and/or breach of duty of care, and stated the particulars, that the defendant:

(a) Failed to exercise due care and caution while excavating the soil next to Plaintiff?s building;

(b) Failed to foresee that the soil around the building was so porous, and so required some support wall to the building of the Plaintiff while carrying on the excavation work on his land;

(c) Failed to prevent excavated soil around the Plaintiff?s building from being washed away by erosion, after excavation work done by defendant?s agent;

(d) Failed to take any or adequate steps to prevent the excavation from reaching so deep as to affect the Plaintiff?s building;

(e) Failed to take any effective measures to ensure that the steep hill on which the defendant carried out the excavation did not erode the sub-soil and so cause damage to the Plaintiff?s building.