S. A. Adeyefa & Ors V Bamgboye (2014)

LAWGLOBAL HUB Lead Judgment Report

M.S. MUNTAKA-COOMASSIE, J.S.C.

It is clear that the Appellants were the plaintiffs in the High Court Ile-Ife who instituted the action against the Respondent herein. The plaintiffs now Appellants claimed the following reliefs in paragraph 38 of their statement of claim.

a. N500.000.00 general and aggravated damages for unlawful construction of the road situate, lying between the Nigeria Police Barrack and the defendant’s building off Moore Road, Ile-Ife and thereby denied the plaintiffs their right of way by the erection of a shed, back-house building and construction of a soak away pit and septic tank despite repeated warnings.

b. Court’s order for removal and filling up the soak away pit and septic tank on the private road the shed and the part of the back house that obstructed the road.

c. Injunction restraining the defendant by herself or by her servants or agent or otherwise howsoever from the repetition or continuance of the acts above complained of or of acts similar thereto on the road-in-dispute.

Pleadings were filed and exchanged between the parties. The suit subsequently went to trial by the Ile-Ife High Court of Justice.

BRIEF FACTS AS NARRATED BY THE APPELLANTS

The Appellants were the community resident at Ojaja Quarters of Moore, Ile-Ife, Osun State. The land in dispute is an access road between the Police Barracks and the Respondent’s building to Moore or Ilesa/Ife Major road.

Appellants stated that the access road had been in existence from time immemorial being used as road. First by the farmers farming around DOKUN – DOSA STREAM over sixty years before the respondent’s father purportedly purchased the land in dispute. Buildings began to spring up behind the Police Barracks and other buildings around Dokun – Dosa Stream. The old road was expanded to a motor -road over 30 years ago before trouble started over the access road-in-dispute and was so used by the inhabitants.

Later, the Respondent’s father, called Ganiyu Elusoji, purportedly purchased the adjacent land including the access road-in-dispute unknown to anybody. He embarked sometime in 1970 to develop the land. Thereby encroached on part of the access road in dispute and was challenged. The town planning authority and Ife Local Government Council however intervened and settled the dispute leaving the land in dispute about ten feet wide as access road to the Appellants community. The settlement was accepted by both parties. The small remaining access road was left for the community and the said Elusoji was left to continue his building in the interest of peace on both sides.

The Respondent’s father died and was succeeded by the Respondent’s mother and one Bello Bamgboye her uncle. Later, both blocked the access road by creating thereon a shed and a wall fence. This led to court action.

After hearing evidence the trial court dismissed ail the reliefs claimed by the plaintiffs now Appellants on the ground that:-

a. The Appellants failed to prove their title to the access road-in-dispute on which the nuisance was committed on the basis that the claim before the court was synonymous to Trespass and Injunction. So title to the land must be proved.

b. The Previous judgment in suit 27/83 tendered as Exhibit P1 which declared the land-in-dispute an access road was not binding on the Respondent because issue of title was not considered in the suit since the defendant’s Deed of Conveyance was not the Customary Court and since the issues raised in Exhibit P1 suit No. 27/83 were not on all fours with the issue in the instant case before it, so it cannot be used to raise an issue estoppels against the Defendant; that is, the judgment 27/83 decided cannot be proved of what it decided in the case before the court.