Folorunsho Olusanya Vs Adebanjo Osineye/osinleye (2013)

LAWGLOBAL HUB Lead Judgment Report

STANLEY SHENKO ALAGOA, J.S.C.

This is an appeal against the judgment of the Court of Appeal Ibadan Division (hereinafter referred to as the lower court or the court below) delivered on the 26th April, 2001 which affirmed the judgment of Ademola Bakre J. of the Sagamu High Court in Suit No. HCS/21/91 delivered on the 28th February, 1996. In the said High Court, the present Appellant as Plaintiff took out a writ of summons against the present Respondent as Defendant, seeking the following reliefs:-

1. Declaration that the Defendant has no right to erect a wall blocking the access way leading to the Plaintiff’s residence situate, lying and being at Nomegun Quarters, Itun Igodo, Ode Remo.
2. N50, 000.00 being damages for erecting of the said wall on the said access way by the Defendant which erection has made it impossible for the Plaintiff to gain access to the Highway and to the use and enjoyment of his said residence.
3. N100, 000.00 being damages for nuisance committed by the Defendant when the Defendant has caused rain water to be discharged from the roof of his building which is adjacent to the Plaintiff’s land on the Plaintiffs land.
4. Mandatory injunction compelling the Defendant to remove the said wall and any other obstacles he has erected to create any road obstruction on the said access way.
5. Perpetual injunction restraining the Defendant, his agents, servants and/or privies from continuing the nuisance complained of in (3) above.

Pleadings were filed and exchanged by the parties. The Statement of claim is at pages 12 – 16 of the Record of Appeal while the Statement of Defence is contained at pages 17 – 22 of the Record of Appeal. The Appellant called two witnesses – PW1 a Surveyor while he testified for himself as PW 2. The Respondent called two witnesses – DW 1 Salitu Ogunsanya, a bricklayer by trade and neighbor while he gave evidence on his behalf as DW 2.

The facts of the case briefly are that the Appellant and Respondent are neighbours at Itun Igodo Quarters Ode Remo, the Appellant and the Respondent’s father having purchased adjacent pieces of land from one Pa Ogunmeru. Appellant purchased his piece of land in 1960 while the Respondent’s father purchased his own piece of land in 1952. Survey plans relating to the land and prepared by PW 1 were tendered and admitted in the trial court as exhibits A and B. What was in serious contention in the High Court and the court below was the allegation by the Appellant that the Respondent buried his father on the access road thereby denying him access to his building. The Respondent said he lodged a complaint before the Town Planning Authority whose officials came on to the site and placed a contravention notice, inspite of which the Respondent later fenced the grave. Appellant sought for an order of court that the road be left as it was in 1960. Respondent’s position was that the area described as an access road by the Appellant was actually not an access road but part of his (Respondent’s) father’s property. In a considered judgment delivered on the 28th February, 1996, the learned trial Judge dismissed the Appellant’s claim in its entirety and awarded N2500.00 costs in favour of the Respondent.

Aggrieved the Appellant appealed to the Court below which allowed the appeal of the Appellant on costs while dismissing the appeal on the other reliefs sought by the Appellant. This is a further appeal by the Appellant to this court. By leave of this court the Notice of Appeal filed in the Registry of the Court below at Ibadan on the 17th July, 2001 was deemed properly filed and served on the 23rd June, 2004. Consisting of two Grounds it is reproduced hereunder from pages 117 and 118 of the Record of Appeal. –

3. GROUNDS OF APPEAL
4. The Learned Justices of Appeal Court erred in law when they held that the Plaintiff/Appellant failed to establish that the wall fence and tomb blocking the access in dispute was not described as access road, street, footpath, footway and or highway. And “failed to establish the burden on him the blockade …on an access road without any grant of easement did not constitute a breach of easement.”

PARTICULARS

(a) There is evidence of existence of the Access way in Exhibits A, B and C.

(b) There is evidence of user of the access road for over twenty (20) years.

2. The learned Justices of the Court of Appeal misdirected themselves when they held that “the wall fence and tomb blocking the Access in dispute was verged RED in Exhibit B whilst existing road and street were shown the grave and wall fence blocking access was not described as access road, street, footpath, footway and or highway” and thereby came to wrong decision.

PARTICULARS

(a) Exhibits A, B and C clearly have described in them the area in dispute as “Access”.

(b) There is clear evidence in the Record describing the area in dispute as “Access Road”.

3. Additional grounds of Appeal shall be filed later.
4. RELIEF SOUGHT FROM THE SUPREME COURT

Setting aside the judgment of the Court of Appeal on Declaration as to the blocking of the Access Way.

This appeal came up before us for further hearing from the lower court on the 4th March, 2013. Respondent’s motion for extension of time to file his Brief of Argument filed on the 46 September, 2012 and to deem the said Brief of Argument already filed and served as properly filed and served was moved by O. Oshobi of Counsel and granted by this Court and the Brief deemed properly filed same day i.e. 4th March, 2013. J. O. Jaiyeola Counsel for the Appellant adopted and relied on the Appellant’s Brief of Argument dated 20th August 2004 and filed same day as his argument in this appeal. O. Oshobi who appeared with P. V. Abba, O. Ben Omotehinse, O. C. Obayuwana (Miss) and A. B. Ige, as Counsel for the Respondent adopted and relied on the Respondent’s Brief of Argument dated the 4th September, 2012, filed same day but deemed properly filed and served on the 4th March, 2013 as Respondent’s Argument in this appeal. Distilled from the Grounds of Appeal and contained at page 6 of the Appellant’s Brief of Argument are the following issues:-

1. Whether the Court below was right when it held that the trial court’s finding of fact that the Appellant failed woefully to establish the burden on him that the blockade by fence wall and the grave of the Respondents father on access road without any grant of easement did not constitute a breach of easement was perverse as the finding was borne out from the printed record.
2. Whether the Court below was right when it held that it has not seen or is there legal justification that the learned trial judge exercised his judicial discretion by the learned trial Judge lacks substance and meritorious.
3. Whether on the evidence adduced by the Appellant in this case the Appellant was entitled to judgment on claims 1, 2 and 4 as endorsed in his Writ of Summons dated the 28th March, 1991.

The Respondent distilled the following sole issue from the Grounds of Appeal in Paragraph 3.1 at page 5 of the Respondent’s Brief of Argument:-