J.A. Adediran & Anor. V. Interland Transport (1991)

LawGlobal-Hub Lead Judgment Report

G. KARIBI-WHYTE, J.S.C. 

On the 3rd February, 1986 the Court of Appeal, Lagos Division, by a majority of 2:1, set aside the judgment of Ayorinde J. of the High Court of Lagos State delivered on the 21st Sept., 1982. This is an appeal by the Plaintiffs against the judgment of the Court of Appeal referred to.

The facts of this case which will be stated immediately hereafter are quite simple and brief. The issues of law involved therein are however not merely of undoubted constitutional relevance and significance; they are also of far reaching importance in the application of the received rules of the common law of England. The facts summarily stated are that Plaintiffs are residents of Ire-Akari Housing Estate, Isolo. The residents have formed an association, Known as the Ire-Akari Housing Estate Association. With leave of the Court, Plaintiffs brought this action on behalf of themselves and all other members of the Ire-Akari Housing Estate Association, who are the residents of the Ire-Akari Housing Estate at Isolo in Lagos State. The Defendant, which is a limited liability company with its registered office at No.9 Brickfield Road, Ebute-Metta, and the 2nd Defendant also a limited liability Company, are owners of Plots 351, 352, 353 along Okeho Street, in Block VA of the Ire-Akari Housing Estate. Defendants are in the transport business. They own several long trailers. They use their premises in the Estate as their workshop and for parking the trailers. Consequently there is considerable traffic of these long heavy trailers in the Estate, throughout the day, and for most part of the night. The many drivers employed to drive there vehicles, also park the trailers in the roads of the Estate making the roads virtually impassable. In many cases they block the access roads to the houses of the residents. The complaint of the Residents of the Estate is that the heavy trailers have rendered the roads unsafe for children, destroyed the roads and knocked down electric poles. The disturbing noise made by the drivers in the process of returning to park the vehicles, and taking off early in the morning constitute in addition to the other inconvenient activities, the nuisance complained of. After several protests to the 1st Defendant, the Residents, who are the plaintiffs, brought this action.

The claim in the amended statement of claim dated 8th July, 1981 reads:-

“(a) an injunction to restrain the Defendants by themselves or by their directors, officers, servants or agents or otherwise whosoever, from using the said plot of land or any other plot of land situated in the Estate for transport business or any other commercial purpose and from causing, permitting or suffering large, long or heavy trailers or any commercial vehicle to be brought into the Estate or be driven through, into or from the Estate.

(b) N10,000.00 being special damages caused to electric and telephone poles and wires, water pipes, culverts, roads, and various other infrastructures in the Estate.

(c) N40,000 damages for loss and damage caused the Plaintiff by nuisance due to noise, vibrations, dust and obstruction of the roads in the Estate”.

After due trial of the claim on the pleadings exchanged by the parties in the High court, the claim against the 2nd Defendant was dismissed by Ayorinde J. The learned trial Judge held the 1st Defendant liable for the tort of nuisance, and awarded N20,000 as general damages. N30,000 was also awarded in respect of special damages. Perpetual injunction was granted restraining the defendants, by themselves or their directors, officers, servants or agents from using the said plots of land in Ire-Akari Housing Estate, Isolo, for transport business or any other industrial purpose. Defendant was also restrained from causing, permitting or suffering large, long or heavy trailers or any such commercial vehicles to be brought into the Estate or to be given into or from the Estate.

In his considered judgment the learned trial Judge found that Plaintiffs are members of the Association known as Ire-Akari Housing Estate Association. The action was instituted on behalf of all the members of the Association residents at Ire-Akari Estate.

Chief E.O. Ashamu was the predecessor-in-title of Ikeja Real Estate Company Ltd. The approved Lay-Out Exhibit “A” was taken over by Ikeja Real Estate Company Ltd. The entire approved Lay-Out as confirmed by PW1 and PW2 is for dwelling houses or residential houses.

The defendant purchased the 3 plots in the approved Lay-Out Exh. A on which it built offices and Workshops where it carries on transport business. Exhibit “K” produced by the Defendant is the plan of the proposed office block and temporary workshop for the Defendant.

The learned Judge construed the provisions of the Town and Country planning Law Cap.133 Laws of Lagos State, Vol. 7, and the definition of the words (a) dwelling house (b) residential building (c) Industrial building and (d) business premises, and held that Exhibit K being inconsistent with Exhibit A is a fraud on the approved Lay-Out, Exhibit A. He therefore rejected Exhibit K. With respect to the tort of nuisance, the learned trial Judge accepted Plaintiffs’ evidence of the movement of long vehicles and trailers at any time of the day or night, and that they made violent disturbing noises. He also accepted the evidence that the vehicles created unbearable volume of dusts and brought undesirable elements into the Estate. The allegation is that the vehicles damaged road, telephone poles, water pipes and made big pot-holes on the untarred roads. He also accepted the evidence that the vehicles made excessive noise and that they cause vibration.

The learned Judge found that the original approval to use the land was for residential or dwelling houses, and this still stands. But he found that the noise and dust created by the activities of the defendants were excessive and beyond the ordinary for mankind in Ire-Akari Estate.

The learned trial Judge found that Ire-Akari Estate is not an Industrial Estate or locality and that it was designed purely for residential purposes, and held that the noise and dust constitute nuisance to the plaintiffs. After recounting the facts, the learned trial Judge found that these acts which are continuous constitute substantial discomfort to the Plaintiffs and other members of the Association.