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

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

LawGlobal-Hub Lead Judgment Report

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.”

He awarded the sum of N1,000.00 as damages for the nuisance, granted an injunction to stop a continuation of the nuisance. Actually there was a fifth claim which was added after the closure of evidence. On 16th April 1982 Ogundere J granted an order to the Plaintiff to add a claim for the demolition of the building constituting the nuisance. In regard to this additional claim the learned Judge examined the issue exhaustively in his judgment. He said in conclusion –

“The plaintiffs fifth claim is an order that the 2nd defendant do demolish the building of the 1st defendant aforesaid. The reply of Mr. Aderemi learned counsel to the defendant was that only the appropriate Federal Minister could order its demolition. Regulation 4 of the Federal Highways (Building Line) Regulations 1971 provides as follows:-

(1) An officer authorised in writing by the Commissioner may cause any building or part thereof which has been or is being created or any other construction which has been created or is being created in contravention of paragraph 2 above, within 150 feet of the centre line of any Federal Highway to be pulled down or removed.

(2) When an expense has been incurred in the pulling down or removing of any building or any part thereof or of any other obstruction as aforesaid, such expense may be recovered in a summary manner from the person who created the obstruction or from the person who caused the same to be created”

It is my view that since the power in the said regulation is permissive, it is not exclusive and any such obstruction may be removed by any lawful authority. The second defendant established under the Town and Country Planning Law Cap 123 Laws of Western State applicable in Oyo State, has the duty to enforce compliance with building line regulations in Ibadan City and environs. Accordingly I hereby order that the second defendant shall demolish the offending building within 30 days of this judgment.”

The first defendant appealed to the Court of appeal. That Court (Dosunmu, Omololu- Thomas and Sule-Gambari J.J.CA.) examined the issues involved thoroughly and in a lead judgment by Dosunmu J.C.A. the Court dismissed the appeal of the first Defendant. The first defendant had further appealed to this Court.

The first defendant who is now the appellant and will be severally be referred to as first defendant or appellant hereinafter based his appeal on three grounds. The plaintiff is now the 1st Respondent to the Appeal. The grounds filed are all grounds of law and having regard to the manner of the Brief (which I must commend as very brilliant) it is necessary to set out those grounds of appeal, as much as I am not really in favour of copying out grounds of appeal in a judgment. They are –

“GROUNDS OF APPEAL:

1. The learned justices of the Court of Appeal misdirected themselves in law when they held that the appeal before them was about the power of a trial judge to order removal of a nuisance and not the competence of a trial court to perform the functions assigned to the Ministry of Works.

PARTICULARS OF MISDIRECTION

1. The trial judge specifically made a finding to the contrary.
2. The conclusion of the Court of Appeal was based on speculation.
3. Nowhere in the judgment of the trial Court which was affirmed by the Court of Appeal was any attempt made to analyze the type of nuisance created by the appellant.
4. The trial judge specifically stated that one of the issues before him was whether the building of the appellant constituted a nuisance without clearly bringing out the distinction and its attendant consequences.
5. The learned justices of the Court of Appeal erred in Law in assuming that building erected in contravention of the Federal Highways (Building Line) Regulations 1971 without more constitutes a nuisance.

PARTICULARS OF ERROR

1. Contravention of the Federal Highways (Building Line) Regulations 1971 constitutes a CRIMINAL offence.
2. The basis of the judgment of the trial court which was affirmed by the Court of Appeal ordering demolition of the appellant’s building is that the building constitutes a nuisance because it has CONTRAVENED the Federal Highways (Building Line) Regulations 1971.
3. The learned justices of the Court of Appeal erred in law when they said that the Minister of Works need not be made a party to the suit.

PARTICULARS OF ERROR

1. Demolition of a building is an executive act to be carried out by the appropriate authority.
2. Regulation 4 of the Federal Highways (Building Line) Regulations 1971 vests Authority in the Minister of Works or any person acting on his instructions to demolish a building erected in contravention of the Federal Highways (Building Line) Regulations 1971.
3. Regulation 4 afore-mentioned was misinterpreted and misapplied”

Mr O.A.R. Ogunde, learned counsel for the Appellant set the issues for determination as –

ISSUES FOR DETERMINATION

Whether in view of sections 4, 5, and 6 of 1979 Constitution, the High Court and Court of Appeal had jurisdiction to order the demolition of the Appellant’s building

Whether the Court of Appeal ought to have granted the declaration stated in paragraph (20) (a) of the Statement of Claim in view of the nature of the action instituted.

Assuming (but without conceding) that the Court of Appeal had jurisdiction to order demolition of the appellant’s building whether the 2nd respondent is the proper authority to so demolish the Appellant’s building bearing in mind items 8, 60 and 66 of the Exclusive Legislative List.

Whether the Federal Minister of Works ought not to have been joined as party.

Whether the amendment of 16th April 1982 made by the learned trial judge and approved by the Court of Appeal was proper.”

In regard to the grant of the declaration sought by the 1st Respondent learned counsel said that the declaration amounted to a finding of guilt and then asked whether a declaration could be used to find a person guilty of a criminal offence or whether a person could be found guilty of the commission of a crime in a civil action where there is no indictment, arraignment, plea or conviction and where the onus is discharged on the balance of probabilities.

He answered the questions which he has asked. His answers are rather interesting. They are confined to what a declaration is and confined as such, learned counsel is right in saying –

(I) A declaration can only be at the discretion of the court.

(2) It is an equitable remedy.

(3) Before a declaratory order is made all the necessary parties must be before the court.

(4) The Power to grant a declaratory judgment must be exercised with care, caution and judicially.

(Italics for purpose of emphasis mine)

Mr Ayoade, of counsel, learned counsel for the 1st Respondent sought sanctuary under section 236 of the Constitution of the Federal Republic of Nigeria (1979).

With respect, brilliant as it is, the approach of Mr Ogunde is completely misconceived in regard to the claim of the Respondent. What the 1st Respondent sought in his first claim is for the court to declare the acts of the Appellant and the 2nd Respondent as matters of fact –

(a) That the Appellant was constructing a building which was within H the set back of the Building Line of a Trunk ‘A’ Road.

(b) That the 2nd Respondent actively connived at and supported this act of the Appellant without regard to regulations guiding such actions.

That was all that the 1st Respondent sought by his first claim. One only needs to look at the second declaratory action to see that the 1st Respondent was not interested in charging either the Appellant or the second Respondent with the commission of a crime. For he claimed that the approval given by 2nd Respondent to the Appellant was ultra vires the 2nd Respondent. If it was as the 1st Respondent claimed then the Appellant has acquired neither right nor privilege of incursion into the territory thus preserved by the Federal Highway (Building Lines) Regulations 1971.

Indeed, this was what operated in the mind of the learned trial Judge when he held that the land must be kept free of any structures by virtue of the law. The whole case is one of nuisance and what should really be examined is whether the act of the Appellant constituted private or public nuisance. It is true the claim has not been perfectly set out. A much better pleader could have achieved a single declaratory claim out of declarations set out in paragraph 20(a) and (b) of the Statement of Claim. Mr Ogunde has cleverly cashed in on this defect in the pleadings and has thereby carried what is in fact a simple claim for nuisance into the realms of crime. This Court, while appreciating the brilliance of learned counsel, must be careful not to be misled by transgressing its objective of meting out justice to parties notwithstanding counsel’s ingenuity to seize upon the inelegant pleading of his opponent.

What is nuisance The learned authors of Clerk and Lindsell have an excellent description – not definition – in their book on Torts (See the 13 Edn. para. 1391).The learned authors said-

“An actionable nuisance is incapable of exact definition and it may over lap with some other heading of liability in tort such as negligence or the rule in Rylands v. Fletcher.”

(Italics mine)

The authors having thus prefaced with the difficulty in giving an exact definition of that head of Tort, said

“Nuisance is an act or omission which is an interference with, disturbance of, or annoyance to a person in the exercise or enjoyment of –

(a) a right belonging to him as a member of the public, when it is public nuisance or

(b) his ownership or occupation of land or of some easement, profit, or other right used or enjoyed in connection with land, when it is a private nuisance.”

It is true, a public nuisance might amount to a criminal offence, but an act which gives rise to a private nuisance may also be unlawful. It needs not be unlawful in fact, but it is usually unlawful. And so it is certainly a private nuisance, if there is interference with some easement or profit or any other right accruing to a person or his land.

Thus, an obstruction to a public highway is prima a public nuisance. Breach of the Building Lines, as in this case is also a public nuisance. If there is a contravention of the public nuisance the Attorney-General could bring a relator action. Luxmore J. explained the position in a Chancery Division action in Vaderprant v. Mayfair Hotel Co (1930) 1 Ch. D. 138. He said-

“I think it will be convenient to state my view as to the law relating to the obstruction of a public highway having regard to the rights of the public who occupy premises abutting thereon. Speaking generally, the public have the right of free and unobstructed passage over the whole of a public highway. The owner of premises abutting on a public highway is entitled to make a reasonable use of that highway for the purpose of obtaining access to his own premises, and of loading and unloading goods at his premises. But the right of the public is a higher right than that of the occupier though reasonable so far as the particular businss carried on by him is concerned, in fact causes a serious obstruction to the public then the private rights of the occupier must yield to the public rights, and the Court will interfere by restraining the continuance at the obstruction. In every case the answer to the question whether the public right has been interfered with must necessarily depend on the extent of the user; in other words the question is always a question of degree. This kind of question can only be determined after a careful consideration of all the facts of the case.”

(Italics mine)

He went on further and said –

“The law as I have just stated it is that which is applicable to a suit brought by the Attorney-General on behalf of the public to restrain the obstruction of a public highway by a person occupying premises abutting thereon. ”

and the learned Judge then asked a pertinent question

“Does the same law apply to the case of a suit by an individual”

Answer He said –

“Again speaking generally, I think it does but the private individual who seeks to restrain the obstruction of a public highway must in order to maintain his suit prove that he has sustained particular damage other than and beyond the general inconvenience and injury suffered by the public and moreover he must prove that the particular damage which he has sustained is direct and substantial. ..

In that case as in this case the action was brought by a private individual and not by the Attorney-General. The private individual in this case, the 1st Respondent must therefore prove that he has been unreasonably obstructed by the action of the Appellant and he has suffered particular damages.

This I think is the crux of the issue before the Court. I do not consider that the contention of Mr.Ogunde in regard to declaration as to criminality is in point.

Viscount Dilborne in Imperial Tobacco Ltd. v. Attorney General (1981) A.C. 718 has said it would be a very exceptional case in which it would be right for a civil court to make a declaration as to the criminality or otherwise of future conduct. That of course would amount to preventive declaration and I agree with the views expressed by Viscount Dilhorne. But the issue here I think transcends that or even what Lord Fraser of Tullybelton examined in Gouriet v Union of Post Office Workers (1978) A.C. 43 where the learned law lord said –

“It seems to me entirely appropriate that responsibility for deciding whether to initiate preventive proceedings for injunction or declaration in the public interest should be vested in a public officer and for historical reasons that officer is the Attorney-General.”

The position in the present action would seem to be illustrated by Buckley J. in Boyce v. Paddington Borough Council (1903) 1 Ch. 109 in which case the learned Judge gave two exceptions to the general rule that the Attorney-General is the person to sue where a public right is involved. He said –

“A plaintiff can sue without joining the Attorney-General in two cases; first where the interference with the public right is such as that some private right of his is at the same time interfered with (e.g., where an obstruction is so placed in a highway that the owner of premises abutting upon the highway is specially offended by reason that the obstruction interferes with his private right to access from and to his premises to and from the highway) and secondly, where no private right is interfered with but the plaintiff, in respect of his public right suffers special damage peculiar to himself from the interference, with the public right.”

The facts of Boyce v. Paddington Borough Council are simple. The defendants (that is the Council) had control over a churchyard. Under statute the churchyard was to be held “in open condition free from building. But then they resolved to erect a hoarding in the churchyard which hoarding would obstruct the access of light to the plaintiffs (Boyce’s) windows so that Boyce would be prevented from gaining a prescriptive right to the access of light.

Boyce brought an action and sought an injunction to restrain the Council from carrying out their resolution. The learned Judge, Buckley J. said of the public right –

“The public right is to have the open space so kept as to allow the enjoyment by the public of the space in an open condition, free from buildings. ”

Of course, that, obviously, is a public right. But that is not all. It is true Boyce would be entitled to his public right as a member of the public but, and this is important, any right of access of light to the windows of Boyce’s property would not be public right. That right he would enjoy not as just a member of the public. Nor did the members of the public enjoy that right in common with Boyce. And so Buckley J. held, and rightly in my view that Boyce could sue in respect of his private and not public right. The Attorney-General, Buckley J. added, was not a necessary party.

It is interesting to note the attitude of the Court of Appeal and the House of Lords to the case of Boyce (supra). Neither Court dealt with this part of the decision which indicates private right and public right. In the Court of Appeal, the issue which was raised was the approach which should be made to the Attorney-General for him to decide whether he ought to be joined or not. Vaughan Williams L.J. said (see 19032 Ch. 556 & 563).

“When the appeal came before us, after a fruitless attempt to get H the matter settled as between the borough council and the plaintiff, so as to avoid any further litigation, we thought it our duty to say that the Attorney-General ought to be approached in order that he might judge whether he thought he ought to be added as a plaintiff.”

The Court of Appeal after it had joined the Attorney-General at his request went into the merit of the case. It did not read the word “building” in the Metropolitan Open Spaces Act 1881(44 & 45 Vict. c. 35) in the limited sense in which Buckley J. had read it, Indeed, part of the head note reads-

“At the trial of the action Buckley J. held that the plaintiff was entitled to sue without joining the Attorney-General as a co-plaintiff. But the learned Judge held that the Act did not create easement of light or otherwise for the adjoining owners, and that the screen was not a building within S.5(1) of the Act of 1881……..”

So, of the two issues which came before Buckley J., the Court of Appeal only took a decision on the definition of “building” under the Statute, leaving the decision on the right to sue by a private individual, in such cases, untouched, while also leaving it to the discretion of the Attorney-General to decide to be joined or not, as plaintiff.

In the House of Lords, see (1906) A.C. 7 the Attorney-General having decided on his own to be joined in the Court of Appeal, the issue of the right of the individual to sue without the Attorney-Genera) was not even discussed. (For a commentary on this case also, see Zamir: The Declaratory Judgment 1962 Edn. p.267 particularly the footnote on p.269).

I now intend to relate the facts of this case to the Boyce’s case (supra). It is not in dispute that the Plaintiff, herein had his building plan approved and that the plan shows a set-back of 150 feet (45 metres) from the front of his house to the middle of Oyo Road, a Trunk ‘A’ Road. It is also not in dispute that, by the Federal Highways (Building Lines) Regulations 1971 L.N. 98 of 1971 there should be such set back from the Trunk ‘A’ Road. Having settled all that, it now remains a consideration of the buildings erected by the Plaintiff, which is also very important. It has not been denied that, as paragraph 7 of his statement of claim –

“The said building plan consists of 15 shops and 5 office blocks which are meant to face the major road of Oyo Road.”

That being the case, the plaintiff intimated the 2nd Respondent, the Ibadan Metropolitan Planning Authority, that the building of the Appellant, being within the prohibited building line, obstructed his own approved building. It goes without saying that by virtue of the Federal Highways Building Within the Building Lines, and the approval given to 1st Respondent (the Plaintiff) to build 15 shops and 5 offices facing the main Road, the area between which buildings and the main road, the law has prohibited from being obstructed the 1st Respondent has acquired an easement to the open space between his building and the Road.

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 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 v. 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”

The same case has established that the owner of an easement, profit a prendre or other incorporeal right can sue for the disturbance of his right. And so, in this case, the 1st Respondent is fully entitled to have brought the action now the subject matter of the appeal. The learned trial Judge is right when he said that such a house holder can bring an action either in nuisance or as a violation of his right of way. So also is the Court of Appeal when Dosunmu J.C.A. declared that it was unnecessary to make the Minister or the Commissioner a party to the action. The ground of appeal fails.

In regard to the inhibitory effect of sections 4, 5 and 6 of the Constitution of the Federal Republic of Nigeria 1979 on the High Court and the Court of Appeal in relation to the jurisdiction of either Court to order the demolition of the Appellant’s building, the Appellant’s counsel has treated this Court to a substantial discourse on the doctrine of separation of powers. Mr Ogunde said that the powers possessed by the learned trial Judge are judicial in nature and not executive. He contended that there is a misapplication of Regulation 4 of the Regulations. What does that Regulaton say. It provides –

“(1) An officer authorised in writing by the Commissioner may cause any building or part thereof which has been or is being created or any other construction which has been created or is being created in contravention of paragraph 2 above. within 150 feet of the centre line of any Federal Highway, to be pulled down or remove.

(2) When an expense has been incurred in the pulling down or removing any building or any part thereof or of any other obstruction as aforesaid, such expense may be recovered in a summary manner from the person who created the obstruction or from the person who caused the same to be created.”

I think the contention of Mr Ogunde on this point is with great respect, misplaced. Regulation 4 does give power to an officer authorised in writing by the Commissioner. How does that inhibit the ordinary power of the Court to grant an injunction whether it is preventive or mandatory The power to grant injunction like all equitable remedies has always been discretionary once it is exercised within the limits of the Court’s jurisdiction see Hanson v. Radcliffe Urban District Council (1922, 2 Ch 490 at 507. Order 21 Rules (1) and (2) of the High Court Civil Procedure Rules of Oyo State (Cap 46) which governs equitable relief authorise the court to grant equitable relief as per the facts of the case which are proved by a Plaintiff. Injunctions however are always granted with caution. There was a time it was thought mandatory injunctions needed extraordinary caution. But that myth was exploded as far back as 1875 by Jessel M.R. in Smith v. Small (1875) L.R. 20 pg 500 when at p.504 the learned Master of the Rolls said –

“As to mandatory injunctions their history is a curious one and may account for some of the expressions used by the Judges in some of the cases cited. At one time, it was supposed that the Court would not issue mandatory injunctions at all……………

The Court seems to have thought that there was some wonderful virtue in that form and that extra caution was to be exercised in granting it. To that proposition I can by no means assent. Every injunction requires to be granted with care and caution, and I do not know what is meant by extraordinary caution. Every judge ought to exercise care, and it is not more needed in one case than in another.”

Neither the doctrine of separation of powers nor items 8, 60 and 66 of the Executive Legislative List provide an inhibiting factor to the jurisdiction of the Court to grant declarations or injunctions in this case.

The grounds of appeal also fails. The last issue to be discussed is the amendment made by the Court of Appeal on 16th April, 1982. There is not much in this ground. I think Dosunmu J.C.A. answered the point properly in the Court of Appeal when it was raised in that Court. The learned Justice of the Court of Appeal said:

“In the present appeal, the trial court found that the amendment was to regularize what was already in evidence and properly pleaded, that is the notice of demolition served on the 1st defendant by the 2nd defendant. The learned counsel for the appellants in the case referred to earlier put the position correctly when he said:-

“It is within the power of the Court to grant an amendment even if the amendment would add to the existing cause of action or substitute therefore a new cause of action provided that the additional or the new cause of action arises out of the same or substantially the same facts as are contained in the pleadings-

“But on the present appeal that is not the position. No new issues were raised. It was unnecessary to add to the evidence after the amendment was granted. There is therefore no merit in this ground of appeal.”

I respectively adopt and approve of the views of the learned Justice of Court of Appeal.

There is therefore no merit in this appeal. All the grounds of appeal fail. The appeal is hereby dismissed. The judgments of the Court of Appeal and the order made by the Court are hereby affirmed. Appellants shall pay Costs of N300.00 to each set of the Respondents.

SC.182/1985