Allison Akene Ayida & Ors Vs Town Planning Authority & Anor (2013)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, JSC 

The proceedings in this matter were commenced by an application for judicial review wherein the Appellants as Plaintiffs/Applicants claimed against the Respondents who were the Defendants/Respondents to the application,the following reliefs.

“1(i) An order of MANDAMUS directed to the Town Planning Authority fo rLagos State to compel the said Town Planning Authority to demolish or give orders for the demolition of the buildings on the property located at No. 14 AIdowu Martins Victoria Island, Lagos Forthwith or (in the alternative) after service of necessary notice or as the Court should direct;

(ii) A declaration that the occupation of the buildings located atNos. 14A and 14B Idowu Martins Street, Victoria Island, Lagos by the 2nd Respondent (Mega Investments Limited) through its tenants, licensees, or other persons constitutes a contravention of regulation 29(1) of the

Town and Country Planning (Building Plan) Regulation Cap188, Laws of Lagos State of Nigeria, 1994;

(iii) An order of mandatory injunction commanding the said 2nd Respondent to take forthwith all lawful steps to remove all tenants, licensees and other persons put by it in occupation of the said building or any portion thereof and

(iv) An order of prohibitory injunction restraining the 2nd Respondent from granting occupational rights in the said buildings to tenants, licensees or other person without a Certificate of Completion and Fitness for Habitation issued by the Town Planning Authority.

(v) A declaration that the Town Planning Authority for Lagos State has no power to waive or to grant the 2nd Defendant any liberty to dispense with that Defendants obligation to comply with the requirements of Section 42(1)(a) of the Town and Country Planning Laws as the provisions of the said sub-section apply to the buildings at Nos. 14A and 14B, Idowu Martins Street,Victoria Island, Lagos;

(vi) A declaration that the development and the entry into occupation as well as the continuing use by the 2nd Respondent of the premises at Nos. 14A and 14BIdowu Martins Street, Victoria Island, Lagos is illegal and unlawful as it constitutes a contravention of the provisions of Section 42(1)(a) of the Town and Country Planning Law and Regulations 29(1) 38(16) and 38(18) of the Town Planning (Building Plan) Regulations;

(vii) An injunction restraining the 2nd Respondent, its servants, agents and licensees from using or continuing to use the buildings located at Nos. 14A and 14B Idowu Martins Street, Victoria Island, Lagos, otherwise than for residential and other non-commercial purposes.”

It is clear from the record that the principal relief claimed at the trial Court by the Plaintiffs/Applicants, was one of mandamus in relief (i) while all the remaining reliefs (ii) -(vii), were merely claimed in the alternative in the event of their failure to succeed in relief (i). The 2nd Respondent as a Defendant in the matter, in addition to meeting the case of the Plaintiffs/Appellants on the merit in its defence, also raised an issue of law touching on the legal entity of the 1st Respondent. On 7th April, 2011, the learned trial Judge after hearing the parties on the reliefs sought by the Plaintiffs/Applicants in their application in his judgment in the matter came to the decision that the Appellants/Plaintiffs were not entitled to the order of

mandamus as sought and consequently refused the grant of that principal relief. The learned trial Judge also in that judgment came to the decision that the Appellants/Plaintiffs had not been able to establish their alternative claims and accordingly dismissed the Appellants/Plaintiffs claims in their entirely.

Dissatisfied with the judgment of the trial Lagos High Court, the Plaintiffs/Appellants appealed to the Court of Appeal Lagos Division which after hearing the parties on their respective briefs of argument, in a unanimous judgment delivered on 17th July, 2002, dismissed the appeal and affirmed the judgment of the trial Court on the main relief and alternative reliefs claimed by the Plaintiffs/Appellants. Aggrieved by the decision of the Court of Appeal, the Plaintiffs/Appellants are now on a further and final appeal to this Court by a Notice of appeal dated 20th August, 2002 containing 5 grounds of appeal. In this appeal, the Appellants brief of argument filed in support of the same contains 3 issues for determination of their appeal. The issues are –

‘(1) Whether Nigerian law requires that an applicant for an order of mandamus must establish that he made a prior demand for performance of the duty sought to be enforced and the authority concerned refused to comply with the demand.