De Facto Bakeries & Catering Ltd v. Mrs. A. Ajilore & Anor (1974)

LawGlobal-Hub Lead Judgment Report

B. A. COKER, J.S.C. 

The appellants are the plaintiffs in an action instituted and tried in the High Court, Lagos, where they sought against three defendants (who are the respondents before us) a series of declarations challenging the validity and/or the propriety of the approval given by the 2nd defendants, the Ikeja Area Planning Authority, to the building plan submitted by the 1st defendant, Mrs. Abeke Ajilore and the execution of the said building plan, Exhibit R. The plaintiffs also claimed for a mandatory injunction against the 1st defendant compelling her to demolish the buildings erected by her pursuant to Exhibit R as well as 50,000 or N100,000 as damages “for nuisance and/or trespass.” The third defendant, a chartered architect, who was at the material time the Chief Executive Officer of the 2nd defendants, was joined in the action by the plaintiffs.

The plaintiffs and the 1st defendant are lessees of adjoining plots of land from the 2nd defendants in respect of plots Nos. S.16 and S.17 respectively on what is generally known as the Shomolu-llupeju Layout In respect of this layout, the Ikeja Area Planning Authority created a scheme known as the Shomolu-llepeju Scheme and the relevant order, i.e. The Shomolu-llupeju Scheme (Approval) Order 1961, was produced in evidence as Exhibit EEE. It is stated, on Exhibit EEE that the date of commencement is the 6th February, 1961. By virtue of Exhibit EEE the entire layout was established (see Detailed Layout, Plan Exhibit EE1), the plots allocated and building subsequently erected thereon. The plaintiffs took the lease of plot No. S.16 in Block ill on the 9th July, 1963

(Exhibit D). On the 4th February, 1969, the plaintiffs as well took the lease of plot No. S.15 from the 2nd defendants (see Exhibit E) but this plot is not affected by the present proceedings. After obtaining the lease of plot S.16, the plaintiffs prepared a plan (admitted in evidence as Exhibit H) for the erection of buildings which in facuhey erected on the site. The plaintiffs did not however erect the buildings in compliance with the plan Exhibit H which was duly approved for them and in pursuance of which they purponed to have erected their buildings. With respect to the buildings actually erected by the plaintiffs, the learned trial judge summarised the position thus:

“This plan, as stated by the 3rd defendant, himself a chartered architect, is designed on party wall basis with a set back of 4′ from plot 17 to Mrs. Williams to allow for all services within the land. But when the actual construction was done, the whole land to the south was built up allowing for no air space still as in party wall design. But in addition to these however, windows were installed on the southern wall contrary to the approved plan, and these windows open to plot 17, Chief Tuyo who gave evidence for the plaintiffs said that the construction was done when he was abroad. In any case, Mrs. Williams, acting through her husband/solicitor, Chief Williams, discovered this and challenged the plaintiffs’ right to put the windows as she similarly developing her own plot on party wall basis and allowing no air space on the northern side.”

It is apposite at this stage to mention that just about the time the plaintiffs obtained the lease of plot No. S.16, one Mrs. Williams also obtained a lease of plot No. S.17 which lies next to the plaintiffs’ plot and to the north of it. To continue with the narrative, the plaintiffs got the approval of the 2nd defendants to build in accordance with plan Exhibit H but, as pointed out above, they did not build in accordance with that plan in that along the northern wall of the buildings which the plaintiffs had erected on their boundary-line between plots Nos. S.16 , and S.17, they had installed a number of doors and windows opening out into plot No.S.17. Besides this, there is also evidence that a number of drainage and other pipes serving the plaintiffs’ building on Plot No. S.16 had been buried in the soil of plot No. S.17. That was what Mrs. Williams challenged when she went into possession of plot No. S.17 allocated to her and as she seemed implacable in her protest, another plot, that is plot No. S.19, was allocated to her instead and she accordingly left the scene.

The plot No. S. 17 was however later offered to the 1st defendant, Mrs.Ajilore, and that by letter admitted in evidence as Exhibit F dated the 30th March, 1967. She took a lease thereof as from the 6th February, 1968. It is undisputed that at this stage the 2nd defendants could have, but in fact have not, ordered the plaintiffs to comply with the plan approved for them, Exhibit H.

It was alleged that the 3rd defendant, the Chief Executive Officer of the 2nd defendants, not only encouraged the plaintiffs to persist in this act of contravention but in reality assured the plaintiffs that their transgressions would be overlooked and that if the plaintiffs submitted another building plan embodying the contraventions such a plan would be approved by the 2nd defendants. Such a plan was indeed submitted by the plaintiffs and approved by the 2nd defendants (see Exhibits J and K).

There was a finding to this effect by the learned trial judge who also had some qualms concerning the propriety of the circumstances under which the amended plan was approved. The learned trial judge thought that the plaintiffs had not clearly brought it to the notice of the approving authorities that what they were wanting to be approved in Exhibits J and K were clearly contraventions. With regard to the finding that the 3rd defendant encouraged the unpleasant situation, although learned counsel for the plaintiffs made a great fuss of this, we feel unable to decide the point precisely ourselves for the evidence is rather tenuous and in any case had come only from the managing Director of the plaintiffs’ company.

Such evidence was vehemently controverted by the 3rd defendant himself both in his pleadings and in the oral evidence he gave in Court, and we can see nothing peremptory in the letters which he wrote to the plaintiffs and/or the 1st defendant, since those letters merely depict him as an official mediator trying to assist the plaintiffs to make the best out of their own irregular course of action as well as plead with the 1st defendant.

We stated that the ikeja Area Planning Authority offered to the 1st defendant plot No. S. 17. The letter of offer is admitted in evidence as Exhibit F and apart from the other conditions of the offer contains the following passage:

“It will be necessary for you to give an easement in respect of light, air and right of maintenance to the owner of the adjacent plot (No.16) who had put in windows and ventilation holes on what should be a party wall or who should have left an airspace of about 5 feet on his plot of land. Unless this is done, the good development envisaged by all will not be achieved.

The address of the owner of the plot is as follows:

The Managing Directors,