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,
De Facto Works Limited,
P.O. Box 31, YABA
You will discover therefore on a visit to the site: that your boundary wall on that side may have to be placed about 4 feet away from your actual boundary. The cost of the easement is a matter of private negotiation between you and the owner of this existing building.”
The 1st defendant after accepting the lease, submitted a building plan of the building she proposed to erect on the site. This was admitted in evidence as Exhibit O and on Exhibit O she left a space of some five feet unbuilt on her southern border. This plan was approved for her and she entered into negotiation with the plaintiffs for the cost of “easement” which, according to Exhibit F, she was supposed to give.”
The negotiation it retrievably broke down and the 1st defendant, in what is apparently a calculated ventilation of her disgust at it all and in a determination to assert what she considered her full rights in to or upon plot No. S. 17, prepared and presented for approval an amended plan, i.e. Exhibit R, which took no notice of the plaintiffs’ circumstances on their northern borders. Exhibit R was duly approved for the 1st defendant and she built it in accordance therewith, blocking off the plaintiffs’ doors, windows and other outlets already erected along the common boundary.
In the High Court, the learned trial judge dismissed all the plaintiffs’ claims with costs; hence the appeal to this Court.
Before us it was contended on behalf of the plaintiffs that they were entitled to judgement on their claims since
(i) the plaintiffs were entitled to an easement over the adjoining plot No.S. 17 which the defendants could not disregard; and
(ii) the buildings of the 1st defendant, pursuant to her amended plan Exhibit R, were in contravention of section 8 of the Building Adoptive Bye-laws Order 1960 (W.R.L.N. 171 of 1960), and so there should issue a mandatory injunction ordering her to pull down such buildings.
Learned counsel for the plaintiffs submitted that the plaintiffs in the events that happened were entitled to an easement over plot No. S. 17. He argued that by their reaction to the way in which the plaintiffs had erected their own buildings and especially by not asking them to pull down the said buildings, the 2nd defendants had acquiesced in the pattern of building which the plaintiffs had established and that the plaintiffs therefore had an implied grant of easement for the enjoyment of the facilities which they had installed on their Northern boundary line, even though if all started in an act of contravention. Learned counsel for the plaintiffs referred to the letter of offer addressed to the 1st defendant, Exhibit F, and in particular the portion of that letter which warned the 1st defendant about leaving some airspace for “the good development envisaged by all” in the neighbourhood and submitted that that was the condition under which the 1st defendanf took the lease of the plot No. S. 17.
The argument of learned counsel overlooks a great number of matters which chatacterise this case. First of all, the condition which it was sought to rely upon was nowhere insetted in the lease of the 1st defendant, Exhibit YY. Secondly,that lease prescribes that the lessee should comply with the terms and conditions of the Scheme Order, Exhibit EEE.
Clearly, and on the face of it, that Order did not prescribe the provision of an easement or other such like rights inter se the lessees. Furthermore, it was not contended before us that there was ever an express grant of easement to the plaintiffs’ land so as to ensure that their ancient lights were not obstructed and there was no evidence that the 2nd defendants at any time amended the Scheme Exhibit EEE in order expressly and by statute to grant to the plaintiffs any such right Besides this, the many letters exchanged between the solicitors of the plaintiffs and those of the 1st defendant, indicate that the parties intended to draw up an agreement for easement on the successful completion of the negotiations between the parties and as those negotiations never came to a head, it had been, and still is, impossible to prepare such an agreement.
It is correct that the letter Exhibit F states that the 1st defendant shall give an easement in respect of light, air and right of maintenance to the owner of the adjacent plot and that the cost of the easement is a matter of private negotiation “between you and the owner of the adjoining plot of land”. Clearly this suggestion simply requests the 1st defendant to give such a right after the private negotiations about the costs of the right The giving of the right depends on the outcome of the private negotiations and the 2nd defendants had already signified its own stand to be left out of contemplation in the arrangements for creating the “easement” and of paying for it.
Again, we can see no evidence of a grant, express or implied, of easement by the second defendants, i.e. The Ikeja Area Planning Authority. Easement is a ius in re aliena, i.e. a right enjoyed over the property of another person and must be created by a grant (express, implied or presumed) or by statute. It is not by itself an incorporeal hereditament in the sense that it is capable like other forms of personal property of being purchased or sold by anybody: it is rather a right appurtenant to a cotporeal hereditament, a right which is enjoyed as part of a real property. In the case in hand, the. suggestion is that the 1st defendant was to grant to the plaintiffs such a right If an’express grant is meant as we stat ed before, there is no evidence of it and indeed the evidence is the other way.
If it was an implied grant contemplated, then there should be evidence that the 1st defendant had impliedly granted such a right to the plaintiffs’ land, for it is only in connection with that property (or tenement) that such a right could be granted by the servient property or tenement is the any evidence that the 1st defendant impliedly granted such a right There is no evidence of this and what ever evidence there is confirms her willingness to negotiate for the creation of one and the breakdown of that negotiation. No question of a presumed grant arises in this case and it was not suggested to us that the plaintiffs are claiming under any presumed grant of easement.
The case of the plaintiffs on their pleadings is that the 1st defendant was derogating from her grant and the other defendants stood by when they could and should have stopped her. But as we stated above, there was no grant whether express or implied and it will be perverse to hold that where negotiation for an express grant had broken down, then an implied grant arose pending the resumption, if any, of such negotiation.
There is another reason why the argument for an easement should fail. We feel bound to point out that if such an easement as is postulated by the argument of learned counsel for the plaintiffs existed, it would have been created in a way contrary to all know methods of initiating an easement In the case in hand, it is the owner of the dominant tenement that was to pay for the easement to the owner of the salient tenement thereby implying that unless the former paid for it, the latter was entitled to withhold the right. An easement is a right attaching to the use of the land so that it runs with it until it is extinguished either by “unity or seisin” in one single owner of other causes, for it is settled law that a man cannot possess the right of easement by himself over his own property and rights in the nature of quasi-easements on the severance of ownership can only ripen into easements by the usual and necessary processes of the law.
We cannot therefore subscribe to the contention of learned counsel for the plaintiffs that the Ikeja Area Planning Authority just before the grant of the lease of plot No. S.17 to either Mrs. Williams or Mrs. Ajilore and at a time when the Ikeja Area Planning Authority had already severed the ownership of the dominant property, plot No. S.16, still could assert a right to buy off whoever came to own plot No. S.17 a right to the maintenance of the ancient lights of plot No. S.16. It would have been otherwise is the Shomolu-Dupeju Scheme was altered so as to provide for an easement by statute. This is not so in this case and all parties agreed that the Scheme, Exhibit EEE, was at no time amended.
Again, it was contended that the 1st defendant’s second plan, Exhibit R, contravenes the provisions of section 8 of the Adoptive Byelaws 1960 to which we have earlier on referred. Section 8 prescribes that an open space of some five feet must be left unbuilt by a developer of land away from the boundary wall of his next-door neighbour.
Clearly, if the Adoptive Byelaws apply, then the 1st defendant’s building is a contravention of section 8 and learned counsel for the 1st defendant understandably had submitted to us that the Adoptive Byelaws do not apply to the Shomolu-Ilupeju Layout which was and is a special scheme of its own and evidently governed only by the provisions of the relevant Order.
On the other hand, learned counsel for the plaintiffs contended that the Adoptive Byelaws apply in the events that have happened, namely that although on the Scheme, Exhibit EEE, alliands in Block ill were designated public open space, the Ikeja,Area Planning Authority, without however expressly amending the Scheme, had proceeded to layout the land into plots and in any case had held out no precise programme of zoning for the area concerned.
We cannot accede to this argument. First of all, the Detailed Layout Plan of the whole Scheme (Exhibit EE1) was approved by the Minister of Lands and Housing, Western Nigeria on the 6th February, 1961. That same date, the 6th February, 1961, was Pie date on which the Shomolu-Ilupeju Scheme, Exhibit BEE, was to commence and on the Layout Plan, Exhibit EE1, lots S.1 to S.2O (of which Nos. 16 and 17 fonn parts) are zoned as shop lots (see Plan No. TPW471, Exhibit EE1). The 3rd defendant in the course of his evidence at the trial, stated that the buildings of the 1st defendant in pursuance of her amended plan, Exhibit R, have not contravened any of the provisions of the Scheme. Now, section 10 of the Shomolu Ilupeju Scheme (Approval) Order 1961 (W.R.N.L. No. 60 of 1961) prescribes as follows:
“10. (1) No person shall, except with the consent of the Authority erect a building or execute worlcs or make excavations on land reserved under clause 9 hereof, other than buildings, works or excavations required for or incidental to the purposes for which the land is reserved:
Provided that any such land may continue to be used for the purpose for which it was used on the date stated in the notice served on the owner and/or the occupier as provided by section 29(2) of the ordinance, or until the , Authority has acquired the land:
Provided further that nothing herein contained shall be deemed to absolve any person from due compliance with the provisions of the Regulations or Bye-laws in force in Ikeja Town Planning Authority Area in so far as they are not inconsistent herewith.
xxx xxx
By the second proviso to section 10 therefore, the byelaws in force in the Ikeja Town Planning area were introduced but only “insofar as they are not inconsistent” with the Scheme Order. That much is clear but whilst learned counsel for the plaintiffs argued that the byelaws generally applied and so section 8 thereof vilifi(ls the plan of the 1st defendant (EXhibit R), learned counsel for the 1st defendant submitted that the byelaws were incqnsistent with the Scheme Order and so clearly were excluded by the plain words of the second proviso to section 10 of the Order. Learned counsel described ‘the inconsistency as lying in the fact that whilst all parties had always treated the Shomolu- Dupeju Scheme, at any rate in respect of lots Nos. S.1 to S.2O, as permiting the erection of partywalls, the Adoptive Byelaws, by section 8 thereof, specifically prohibits partywalls. What then is the evidence in this case Both the plaintiff’s original plan Exhibit H and their later plans Exhibits Judge exemplify the party-wall system of building save and that the plaintiffs have installed windows and outlets along their nonhern wall. The 1st defendants’ second plan, Exhibit R, was based on the same system and, as we pointed out before, the 3rd defendant had stated that the 1st defendant had built in compliance with the Scheme Order Exhibit BEE. We think that all parties always knew that the buildings in the area concerned are to be built on the party-wall system a pattern of building which runs counter to the provisions of section 8 of the Building Adoptive Byelaws Order 1960 (W.R.L.N. No. 171 of 1960). In our view, the learned trial judge was right to come to the conclusion that the Adoptive Byelaws did not apply to this area so as to impugn the the propriety of the approval granted to the new plan of the 1st defendant, Exhibit R. In any case, if the argument concerning the applicability of the Adoptive Byelaws to the area concerned is pressed to its logical conclusion, then the plaintiffs themselves would have run foul of that Regulation unless it is proposed to argue that the Regulation started to apply only after the plaintiffs had irregularly constructed their buildings in the way they did.
In the end, the arguments on both heads of appeal canvassed for the plaintiffs fail and the appeal fails as well and it is dismissed. The appellants will pay to the respondents the costs of this appeal fixed with respect to the 1st defendant at N165 and with respect to both the 2nd and 3rd respondents at N165.
SC.297/1973
