Abraham E.ipadeola & Anor. V Abiodun Oshowole (1987)

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ESO, J.S.C. 

The facts of this case are hardly in dispute. The plaintiff in the Trial Court owns a piece of land at Abata Village. The village is on the Oyo Road of Ibadan and it is near Ojoo, Oyo Road is a trunk “A” Road. He made a building plan got it approved by the 2nd Defendant – the Ibadan Metropolitan Planning Authority and he thereafter laid a foundation for the building of fifteen shops and five office blocks. This was by the end of May 1978. These buildings were meant to face the (trunk “A”) Oyo Road.

The next stage in this drama was that the 1st Defendant one Abraham Emiola Ipadeola who was trading under the name and style of Niger Prime Commercial and Industrial Company also got an approval from the 2nd defendant to erect a building. This building blocked the view of the Plaintiff to the Oyo Road. This approval to the 1st defendant by the 2nd defendant was by the 18th of February 1980.And so it happened that it was the same Ibadan Metropolitan Planning Authority which gave approval to the Plaintiff that also gave approval to the 1st defendant. The only difference was that whilst the Plaintiff got his own approval by the middle of 1979, the 1st defendant got his eight months later.

All the parties either gave or called evidence at the end of which the learned trial Judge made a finding as follows –

“The 1st defendant first of all deceived the 2nd defendant, the Planning Authority by building his house on a site different from that inspected before approval, the house itself on the present site in dispute being much larger than that shown on the plan as approved. The 1st defendant’s house is also built in breach of the Building Line Regulations in that the set off of 150ft or 46 metres were not complied with as was established by actual measurements in the situ in quo as given in the evidence on oath of Mr. Akingbogun, Licenced Surveyor, and the 2nd defendant’s witness, whose evidence I find true and correct.” “I find that the first defendant’s house blocks the access of the plaintiff from his building to the Federal Highways to Oyo and constitutes a nuisance.”

Now, this is a very important finding and it is very significant that the finding was not challenged in the Court of Appeal. Having thus found the learned Judge (Ogundere J. , as he then was) concluded

“It is my view that the land kept free of any structures be it a building or otherwise, as a set off to a Federal Highway under the Federal Highways (Building Line) Regulations 1971 may constitute a statutory right of way or easement for those who built houses adjacent thereto. Such a house holder, like the plaintiff herein can bring an action either in nuisance or as a violation of his right of way against anybody who built any structures in front of his house to block his access to the Road. See Harris v. De Pinna (1886) 33 Ch.D 238, 262. Therefore, I am satisfied that the plaintiff is entitled to the first declaration sought.”

It is now pertinent, as it would be more explicit, to state the claims of the Plaintiff. They are –

“(a) a declaration that the first defendant is constructing his proposed building within the set back of the building line of the Trunk ‘A’ Road along Oyo Road Near Ojoo Market, Ibadan through the active connivance and support of the second defendant and without due regard to the building regulations.

(b) a declaration that approval of the first defendant’s building Plan No. 37/AK/C/390 by the 2nd defendant is irregular unlawful and ultra vires the second defendant.

(c) the sum of N50,000.00 (Fifty thousand Naira) being general damage occasioned by the nuisance created by the construction of the first defendant’s building to affect the interest of the Plaintiff’s building which has been duly approved under a building Plan No. 37/AK/C/199 by the second defendant;

(d) an injunction restraining the first defendant, his servant and/or agents or any person acting through his authority from continuing the building Plan No. 37/AK/C/390.”

It was the declaration that the 1st defendant is constructing his building within the building line of the Trunk ‘A’ Road, which I have already described, with the active connivance of the 2nd Defendant that the Court granted. He dismissed the second declaration. He said –

“As to the second declaration sought since it is part of my finding that the building plan approved for the 1st defendant complied with the Building Line Regulations and that it was the 1st defendant who violated the regulations by not building according to his plan as approved, and by deceiving the planning authorities, which I believe, when he took them to a different site from the one he now builds on,I cannot grant the second declaration that the approval of the 1st defendant building plan is irregular unlawful and ultra vires. I therefore dismiss that leg of the claim.”