Baytide Nigeria Limited V. Mr. Kayode Aderinokun & Ors. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of the High Court of Lagos State in Suit No. LD/162/2004 delivered on the 18th day of March 2010. The appellant was the claimant at the lower court and the respondents the defendants. The appellant purchased a piece of land known as Block 15, Lekki Peninsula, Phase 1 Lagos and wanted to construct a petrol station on it. The residents of the area were opposed to the construction and expressed their objection to the appellant.

The appellant maintained that the land was allocated in its Certificate of Occupancy for the construction of a petrol station and that all the approvals necessary for the construction of the station had been obtained. All attempts to reach a compromise failed. The appellant began construction of the petrol station and construction had reached 95% completion before the filing of this suit. On 20/10/03, members of the residents association staged a protest on the Appellant’s site against the continued construction of the petrol station. The appellant then filed this action and by his further amended statement of claim dated 9th December 2005 claimed against the respondents the following reliefs:

1. A declaration that the parcel of land known as Block 15 Lekki Peninsula Petrol Filling Station as set out in Certificate of Occupancy No. 23/23/1991L and the master plan of the Lekki Peninsula Phase 1 Scheme is designated and set apart for the purposes of the construction of petrol filling station.
2. A declaration that the plaintiff’s construction of a petrol filling station on the said parcel of land is legal and valid and in conformity with the terms of the certificate of occupancy no. 23/23/1991L.
3. A declaration that the defendants’ constant harassment of the plaintiff’s staff on site is wrongful and amounts to trespass on the part of the defendants and also conspiracy to injure the plaintiff by way of its business.
4. An order of perpetual injunction restraining the defendant, from further harassing the plaintiff and its staff and from further trespassing on the parcel of land set out in paragraph 1 above.
5. Damages as may be assessed by the Court for trespass on the plaintiff’s land by the defendant and also for injuring the plaintiff by way of its business.

The Respondents filed a defence alleging that the Appellant had not obtained the approval or permission required under the Environmental Impact Assessment Act 2004 (the EIA Act) and the Lagos State Environmental Agency Law 1996; alternatively that if the Appellant had the approval or permission that a proper environmental impact assessment study had not been made or carried out before the approval or permission was given; in particular that the views of the public and the residents of the area as to the possible impact of the project on the area was never sought. The Respondents denied that the Appellant had a valid deed of assignment or certificate of occupancy in respect of the land on which it was constructing the petrol filling station. The Respondents also denied the Appellant’s allegation that they or their servants at anytime disrupted the Appellant’s construction works. The Appellant during the hearing called three witnesses and tendered several documents. The Respondents called one witness. The parties filed written addresses. The Appellant in his written address raised only one issue for determination, to wit “whether the claimant is entitled to any or all of the reliefs in his statement of claim” while the Respondents raised altogether 7 issues in their final written and reply addresses. The Respondents’ issues are:

1. Whether the Claimant complied with the law particularly the Environmental Impact Assessment Act, 1992 (now Cap. E12 Laws of the Federation of Nigeria, 2004) in obtaining its approval(s) to build the petrol station.
2. Whether the Defendants’ constitutional right to free assembly and association with others has in any way infringed the Claimant’s right.
3. Whether the Claimant suffered any damage from the exercise of the defendants’ right as in issue 2 above.
4. Whether the Claimant is entitled to damages in the sum claimed or to any sum at all.
5. Whether the Defendants’ failure to lead evidence on any position of its statement of defence exonerates the Claimant in proving its case.
6. Whether the agency complied with the excerpts provision of section 7 of the EIA, 1992?
7. Whether the Claimant is entitled to damages for trespass?

In his judgment at page 462 of the record of appeal, the learned trial judge after setting out the evidence led by the parties at the hearing observed:

“I have examined the testimonies of all the witnesses and the exhibits tendered in the course of hearing this suit, and I have come to the irresistible conclusion that this is a matter where this Honourable court may identify and formulate issues for the determination of the case……..The sole issue formulated therefore is, whether or not the Agency complied with the express provisions of Section 7 of the Environmental Impact assessment Act 1992 now Cap E12 Laws of the Federation of Nigeria 2004.”

Based on the above issue, the learned trial Judge, B.O. Shitta-Bey J. on 18/3/10 granted the Appellant’s claims in part and awarded the sum of N100,000.00 (one hundred thousand naira) damages for the trespass committed on the appellant’s land by the Respondents on 20/12/03. The Court also granted the Appellant perpetual injunction restraining the Respondents from further acts of trespass on the Appellant’s land. The Court however found that the failure to give the Respondents or any other interest groups the opportunity to comment on the EIA Report prepared by the Appellant in respect of the construction of the petrol Station rendered invalid and ineffectual any approval given by any authority to construct the petrol station on the said parcel of land.

The Appellant being dissatisfied with the dismissal of parts of his claims filed an appeal before this court vide Notice of Appeal dated 18th day of May 2010 containing five grounds of appeal.

Briefs of argument were filed and exchanged by the parties. In his brief, the Appellant out of his five grounds of appeal formulated three issues for determination to wit:

i. Whether the sole issue formulated by the trial court sufficiently encapsulated all the issues joined by the parties on their pleadings and the evidence adduced at the trial and whether this did not occasion serious miscarriage of justice. (Ground 1 of the Notice of Appeal)

ii. Whether the provision of section 7 of the Environmental Impact Assessment Act is applicable and relevant and is a mandatory condition precedent to the grant of approval to construct a petrol station (Grounds 2 & 3 of the Notice of Appeal)

iii. Whether upon a proper evaluation of the evidence, the trial court ought not to have entered Judgment in favour of the Appellant in respect of all the reliefs sought, particularly, the declaratory reliefs (Grounds 4 and 5 of the Notice of Appeal)

The Respondents in their brief of argument also formulated three issues for determination, to wit;

i. Whether the issue formulated by the trial court did not encapsulate all the primary issue in dispute between the parties and whether the determination of the said issue did not effectively and sufficiently determine the competing rights of the parties to the suit?