Muniyas Nigeria Limited & Anor V. Mr. Shittu Ashafa & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A (Delivered the Leading Judgment)

This is an appeal against the Judgment of a Lagos state High Court in Suit No. LD/2162/04 delivered by O.A. Taiwo, J. on 24th November, 2006. The Respondents, who were claimants at the court below, were asking for the following reliefs as contained in the last paragraph of their statement of claim: –

” 1. The claimants claim the right of easement on the piece and/or parcel of land directly facing 46 , Ashog bon Street, Lagos, the property of the 1st 3rd claimants which same piece or parcel of land is verged Blue in the survey plan attached to the deed of indenture registered as No. 98 page 276 in vol.122 of register of deeds kept in the Land Registry Lagos in respect of the property known, situate and being at 46 Ashogbon Street, Lagos,

2. An order directing the immediate removal of the obstruction of the rights of easement by the Defendant, their agents, assigns workmen and privies forthwith or by any other agents of the Lagos State Government.
3. An order of perpetual injunction restraining the Defendants either by herself, assigns, agents, workmen and or Preview from further obstructing the claimants right to easement of the piece and parcel of land the subject matter of this suit.
4. Cost of this action”.

The Appellants in their Statement of Defence denied the claim.

A synopsis of the facts of this case are that the Respondents are all the principal members of the owners of the building/premises situate, lying and being at No. 44 and 46 Ashogbon Street, Lagos. By virtue of a deed of indenture dated 3rd September 1918, the property aforementioned was conveyed to one Yusufu Alli, his heirs and assigns by purchase in fee simple; the said Yusufu Alli being the son of Alli Idosu, the 9th Eletu Odibo of Lagos. The 1st 3rd Respondents are the descendents of the said Yusufu Alli. The piece or parcel of land in dispute is said to be the common air space, which rights of easements are jointly enjoyed among other owners of the buildings in the precinct by the 1st 2nd, 3rd , 4th and 5th Respondents. Since 1918, the Respondents have had a common usage of this land during Festivals such as Eyo, Ileya and installation of traditional Chiefs. The Appellants who are property developers, sometime in December, 2004, according to the Respondents, forcefully entered into the piece and parcel of land and commenced development project obstructing the rights of easement of the Respondents’ The Appellants turned down all entreaties made to them by the Respondents.

The Appellants however contend that this piece of land in dispute is No. 42A Ashogbon street, Lagos, has been, and still is the property of the Eletu Odibo Chieftaincy family from time immemorial. That the land has been in the said family’s possession undisturbed for over the past 100 years. That this parcel of land was leased to the 1st Appellant by the Ogaunso Ruling House of the Eletu Odibo Chieftaincy family. Upon the said lease, the Appellants commenced the development of the land after securing due approval from the relevant departments of the Lagos State Government. Also that the Lagos State Urban & Regional Planning Board approved the building plan and the required space between the Respondents’ property and the building under construction.

Finally, the Appellants deny that the parcel of land was ever used for Eyo or Ileya traditional festival or installation of traditional Chief.

At the close of trial, the learned trial Judge on 24th November, 2006, entered Judgment for the Respondents in part as follows:

“In conclusion I find as follows:

1. That construction of a three storey building by the Defendants infringes the claimants right to air
2. The law does not recognize a right of common usage for festival
3. An order directing the immediate removal of the obstruction of the right of easement by the Defendant, his agents, workmen and privies forthwith or of other agents of Lagos State Government is hereby refused.
4. An order of perpetual injunction restraining the Defendants either by himself, assigns, agents, workmen and or privies from further obstructing the claimants’ right to easement of the piece or parcel of land the subject matter of this suit is hereby granted “.

Dissatisfied with the above Judgment of the learned trial Judge, the Appellants filed Notice of Appeal dated and filed on 15th July 2009. This notice was filed sequel to the order of this Court made on 8/7/09 extending the time for the Appellants to appeal within 14 days with effect from the said 8/7/09. The said Notice contains five grounds of appeal and is against some aspects of the Judgment. From the five grounds, the Appellants have distilled four issues for the determination of this appeal. The issues are:

“1. Whether it is not wrong in law for the trial judge to grant a relief that is not specifically pleaded and/ or proved to wit that the construction of a three storey building by the Defendant’s infringes the claimants right to air. From Ground 1.

2. Whether the Claimants/Respondents were able to establish or prove any infringement on their right to air or they were only able to prove right to common usage for festival (Grounds 4 & 5).
3. Whether the court can grant a perpetual injunction restraining an act that is already completed. (Ground 3).
4. whether the learned trial Judge was right in granting an order of perpetual injunction where the Claimant/Respondents, have failed to establish a specific relief and/or satisfy the general principle governing the granting of an order of perpetual injunction. (Ground 2)”.

The Respondents have however formulated three issues for determination thus:

” 1. whether the claimants by their pleadings, evidence, exhibits A & A1 are not entitled to the reliefs granted them by the Honourable Trial Judge.

2. Whether the Respondents failed to establish or prove any infringement on their right to air.
3. Whether the trial Judge was wrong in granting an order of perpetual injunction when he found that the Appellants infringed on the right to air of the Claimants by the construction of a three story building”.

As I see the facts and Judgment in this case with regards to the grounds of appeal filed, I shall determine this appeal based on the four issues submitted by the Appellants, after all, it is their appeal. Issues one and two in the Appellants’ brief and issues one and two in the Respondents’ brief are saying the same thing and shall be taken together.