Alhaji Y. A. O. Bello Vs The Diocesan Synod Of Lagos & Ors (1973)

LawGlobal-Hub Lead Judgment Report

COKER, JSC. 

The present appellant, Alhaji Y.A.O. Bello, became, in the events that happened, the plaintiff in an action originally instituted by his mother, Madam Ashimowu Bello, in the High Court, Lagos and in which the writ was originally endorsed as follows:- “The Plaintiff’s claims against the defendants jointly and severally are (a) £8,000 special and general damages for damage done to the plaintiff’s property at No. 1, Edwin Street, Lagos due to the negligence/nuisance of the defendants in the execution of building operations being carried out by the defendants on their land St. John’s Aroloya Church adjoining the plaintiff’s property. (b) An injunction restraining the defendant from doing further damage to the plaintiff’s said property.”

The original plaintiff died soon after the filing of some pleadings but before the actual trial of the action. The present appellant, who will hereafter in this judgment be referred to as the “plaintiff,” took out Letters of Administration to the estate of his mother and so prosecuted the action in his capacity as the personal representative of Madam Ashimowu Bello (deceased).

There were originally three defendants to the action as follows:- “(i) The Trustees of the Diocese of Lagos (C.M.S.) Nigeria. (ii) Messrs. Rodio S.C.C. (Nigeria) Ltd. (iii) Arbico Ltd. Later in the course of the proceedings, the designation of the 1st defendants was amended to read:- “The Diocesan Synod of Lagos.” Also in the course of the proceedings, and indeed on the 26th November, 1969, the plaintiff withdrew the case against the 1st defendants and as against them his case was dismissed on that day. PAGE| 3 In the course of the hearing and during the cross-examination of the plaintiff, the High Court ordered the joinder of a further defendant described as follows:- “D.A. Cole and M.O. Leigh as representing the Parochial Committee of St. John’s Church, Aroloya, Lagos.”

Previous to this and on the 29th September, 1969, pursuant to an application by learned counsel for the defendants, the Lagos Executive Development Board was joined as the 5th defendants to the action. All these defendants, except the 1st, are now the respondents before us and in this judgment they would be referred to as defendants in the order and the signification in which they defended the action. With respect to the Lagos Executive Development Board, we observe that since the hearing of this case the Lagos State Development and Property Corporation Edict No. 1 of 1972 had been promulgated as a result of which the Lagos Executive Development as such had been dissolved and the Lagos State Development and Property Corporation created to take over its assets and liabilities.

By virtue of Section 8 of the Edict No. 1 of 1972, the Lagos State Development and Property Corporation now takes over the assets and liabilities of the Lagos Executive Development Board “without further assurance”; and as such and by virtue of the provisions of sub-section (3) of Section 8, this action therefore ensures for and against (as the case may be) the Lagos State Development and Property Corporation so that references to the Lagos Executive Development Board in this judgment shall be taken as references to the Lagos State Development and Property Corporation.

Pleadings were ordered and filed. The plaintiff’s Statement of Claim avers that the 1st defendants are the supreme authority vested with the right to administer the affairs of the Anglican Church community in Lagos and that they own the church premises of St. John’s Aroloyu whose servants and/or representatives had engaged the services of the 2nd and 3rd defendants to “carry out building operations on St. John’s Church, Aroloya premises’; that pursuant to this, the 2nd defendants did bury on the site of St. John’s Aroloya about 94 piles each over 60 feet long and that the plaintiff’s house and building which was near the 2nd defendants’ site suffered severely as a result of the operations. Paragraphs 9, 10 and 11 of the Statement of Claim read as follows:- “9. The 2nd defendant did bury on the site about ninety-four piles each over sixty feet long. The 2nd defendant knows that piling operations are always accompanied by very heavy vibrations which must escape from the operation site to adjacent premises, and do damage thereto. 10. The 2nd defendant knew, that due to the proximity of the plaintiff’s building to the building site, vibrations resulting from the operation would escape unto the plaintiff’s land and do damage thereto. 11. During and after the piling operations, the foundation of the plaintiff’s house at No. 1, Edwin Street, Lagos, was so badly shaken and considerably weakened to the extent that cracks of 2” – 3” wide began to appear on the walls of the plaintiff’s building and a substantial portion whereof became unsafe as a residence. PAGE| 4 This damage was caused by the vibrations from the heavy piling operations.” The Statement of Claim further avers that after the piling was done by the 2nd defendants, the 3rd defendants entered the site and commenced building operations thereon and indeed dug the foundations for a church building. Paragraphs 14, 15 and 16 of the Statement of Claim aver as follows:- “14. The foundations were dug very deep and very close to the plaintiff’s land and in such a negligent manner that the plaintiff’s land and building lost support due to the excavation of the sub-terranean soil from the plaintiff’s land. 15.

In consequence of the loss of subterranean soil of the plaintiff’s land due to the excavation by the 3rd defendant, the already weakened and cracked walls of some rooms of the plaintiff’s building on the land collapsed rendering four rooms of the out-house completely uninhabitable. 16. The 3rd defendant knew or ought to have known that the plaintiff’s land and building would be affected in consequence of its negligence in the execution of its works.” The Statement of Claim finally sets out the particulars of negligence and claims that the plaintiff had suffered damage and loss by reason of the aforementioned premises.

The Statement of Defence filed by the 1st defendants, i.e. the Diocesan Synod of Lagos, denies responsibility for the acts of any of the other defendants and avers that St. John’s Church, Aroloya, has its own separate and distinct governing body and a Parochial Committee which manages the affairs of the church. Paragraphs 10 and 11 of the Statement of Defence filed by the 1st defendants aver as follows:- “10. From all information available to the defendant upon enquiries caused to be made, the defendant will contend at the trial that even if the acts complained of affected No. 1 Edwin Street, Lagos the plaintiff is not entitled to the claim herein in that the property forms part of the area acquired by the Lagos Executive Development Board and sold to St. John’s Church, Aroloya, Lagos. The notice of acquisition is contained in a Publication in the West African Pilot of 17th January, 1967. The defendant will rely on the provisions of Section 45 (2) of the Lagos Town Planning Act, Cap. 95 of the Laws of the Federation of Nigeria and Lagos to contend that the property at No. 1, Edwin Street, Lagos became vested in the Lagos Executive Development Board and all rights of occupancy terminated on the said 17th January, 1967.

PAGE| 5 11. From all information available to the defendant, the said Lagos Executive Development Board acquired the said property as well as adjoining property and sold the same to the Building Committee of St. John’s Church, Aroloya, by virtue of Section 59 (1) of the Lagos Town Planning Act, Cap. 95.” In the same way the 2nd defendants, i.e., Messrs. Rodio S.C.C. (Nigeria) Ltd., filed and delivered a Statement of Defence. In that Statement of Defence, they admitted having buried some pillars on the premises of St. John’s Church, Aroloya but denied negligence as well as all the other substantial averments in the plaintiff’s Statement of Claim. In paragraph 7 of their Statement of Defence, the 2nd defendants averred that they would contend at the trial of the action that they were employed by the 4th defendants to carry out the foundation works on the premises; that the property No. 1, Edwin Street, Lagos as well as adjoining lands had been acquired by the L.E.D.B. and that the property, i.e. No. 1, Edwin Street, and the adjoining lands had been sold by the L.E.D.B. “To St. John’s Church, Aroloya for the sum of £8,000 (eight thousand pounds).” The 3rd defendants, Arbico Ltd., also filed a Statement of Defence by which they denied negligence and liability for any damage to the plaintiff’s premises and contended, like the 2nd defendants, that the property in question had been acquired by the L.E.D.B. and sold to the 4th defendants.

The 4th defendants, representing the Parochial Committee of St. John’s Church , Aroloya, Lagos, also filed and delivered a Statement of Defence. By that Statement of Defence, they admit the adjacency of St. John’s Church, Aroloya, to the plaintiff’s property No. 1, Edwin Street, they admit that they had engaged and instructed the 2nd and 3rd defendants to carry out the operations alleged by the plaintiffs in his Statement of Claim but they deny negligence and liability for any damage to the plaintiff’s property.

Their Statement of Defence further avers that they will contend at the trial that the property No. 1, Edwin Street and adjoining lands had been acquired by the L.E.D.B. and sold to them for £8,000 and that in any case the plaintiff had not yet challenged the validity of the acquisition by the 5th defendants. By their Statement of Defence the 5th defendants, i.e. the L.E.D.B, specifically traverse all the paragraphs of the plaintiff’s Statement of Claim and in paragraph 3 thereof aver as follows:- “3. The 5th defendant will contend at the trial of this motion that: (a) the 5th defendant is a statutory body incorporated under and by virtue of the Lagos Town Planning Act, Cap. 95, Laws of the Federation of Nigeria and Lagos. (b) Under and by virtue of the power conferred on the 5th defendant by the Lagos Town Planning Act, Cap. 95, the area marked Red on Plan NO. 1008/SD dated 3rd of January, 1967 attached hereto and marked Exhibit “A’ became vested in the Board on 11th January, 1967. (c) The property known as No. 1, Edwin Street, Lagos, marked Blue in Plan No. 1008/SD attached referred to in paragraph 1 of the plaintiff’s Statement of Claim formed part of the area acquired referred to in paragraph 3 (b) above.

PAGE| 6 (d) The notice of acquisition of the plaintiff’s property and other affected adjoining properties was served on the occupiers and also published in the issue of the West African Pilot of the 17th January, 1967, and in the Daily Times of 19th January, 1967. (e) The 5th defendant has the intention and is prepared to rehouse the occupiers of the said acquired property and has in fact rehoused occupiers of No. 3, Edwin Street, who were similarly affected by the acquisition. (f) The owner of No. 1, Edwin Street is entitled to claim and receive compensation in respect of the property which the Board is willing and ready to pay. (g) The 5th defendant is willing to pay compensation for the property and had so informed the plaintiff. (h) The 5th defendant under the power conferred on it by the Lagos Town Planning Act, Cap. 95, sold the acquired properties referred to in paragraph 3(c) above marked Red in Plan No,. 108/SD including the plaintiff’s property to the 4th defendant for extension to St. John’s Church, Aroloya, Lagos as stated in the Notice of Acquisition referred to in paragraphs 3 (e) and 3(d) above. (i) That by virtue of the acquisition of the property referred to in paragraphs 3(e) and 3(d) and the vesting in the Board referred to in paragraph 3(b) above, the plaintiff is no longer the owner of the property known as 1, Edwin Street, Lagos.

Wherefore the 5th defendant claims that the plaintiff’s action is misconceived, and speculative and should be dismissed with costs.” By an amendment to their Statement of Defence, these defendants, i.e. the LEDB further aver as follows:- “That the 5th defendants will rely on the Lagos Town Planning Act, Cap. 95 Laws of the Federation of Nigeria and the Lagos Town Planning (Re-declaration of Planning Act), Order, 1966 L.N/120/66.” The plaintiff then filed a Reply to the Statements of Defence of the 4th and the 5th defendants.