IPADEOLA & ANOR. V. OSHOWOLE

• Pages: 755-770

IPADEOLA & ANOR. V. OSHOWOLE

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755

between the hearing of the case and the delivery of the judgment thereof, would

have blurred the memory of the learned trial Judge and militated against his com-

ing to the right decision.

It was for the above reasons, and those so ably given by my learned brother

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Kawu, J.S.C. that I dismissed the appeal on 3rd March, 1987.

Appeal dismissed.

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IPADEOLA & ANOR. V. OSHOWOLE

A.E. IPADEOLA & ANOR

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APPELLANTS

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V

1.

ABIODUN OSHOWOLE

2.

IBADAN METROPOLITAN

PLANNING AUTHORITY

RESPONDENTS

SUIT NO. SC 182/1985

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SUPREME COURT OF NIGERIA

BELLO,

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C.J.N.

ESO,

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J.S.C.

ANIAGOLU,

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J.S.C.

KAZEEM,

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J.S.C.

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KAWU,

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J.S.C.

29th May, 1987

Tort - Public nuisance - Contravention of Federal Highways (Building Lines)

Regulations, 1971 - Unlawful construction in prohibited set back from trunk

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"A" Road - Plaintiff also obstructed by unlawful construction - Whether

actionable as private nuisance Rule that Attorney-General to sue as relator

for public nuisance - Exceptions - Burden on individual suing for public

nuisance - Easements arising out of statutory regulations and approved plans

- Federal Highways (Building Lines) Regulations, 1971.

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Practice and Procedure - Injunctions - Mandatory and preventive - Powers of

trial Judge - Order of demolition by trial Judge - Such demolition to be

done by certain government fiinctionaries by statute - Whether order exercise

of executive rather than judicial power by trial Judge and therefore null

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Separation of powers - Sections 4, 5, 6 of the 1979 Constitution - Injunctions

- To be granted with caution.

Judgments - Civil cases - Declarations - Containing statement of contravention of

law prescribing penalty - Whether declaration amounts to finding of criminal

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guilt - State of mind of Judge and nature of action determining factor.

Practice and Procedure - Order granted to amend statement of claim after evidence

- Whether proper - Scope of power to amend statement of claim.

50 ISSUES:

1.

Whether a particular act which constitutes a public nuisance can give rise to an

action by an individual for private nuisance.

2.

What are the exceptions to the rule that it is the Attorney-General who can sue

in respect of a public nuisance?

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NIGERIAN SUPREME COURT CASES [1987] 2 N.S.C.C.

3.

What must a private person prove before he can sue for a private nuisance

which also amounts to a public nuisance?

4.

Whether an individual who has lawfully and with approval constructed a building

facing an open space in respect of which there is a statutory prohibition on

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building, acquires thereby an easement or right of access to the open space

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the breach of which entitles him to an actionable remedy.

5.

Whether the fact that a statute or regulation gives power to a specifically

authorised officer to do a particular act precludes a court from exercising its

discretion to order a mandatory or preventive injunction in respect of that act.

6.

Whether an order of a trial Judge enforcing the doing of an executive act

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amounts to a breach of the principle of separation of powers implicit in the

1979 Constitution.

7.

Whether the fact that a declaration granted a party by a court in a civil cause

includes a statement that the defendant has contravened a statutory provision,

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and for which penalties are provided, amounts to a finding of criminal liability

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thereby vitiating the declaration.

8.

Whether it is within the power of a trial Judge to grant an amendment of a

statement of claim which amendment would add to the existing cause of action

or substitute a new cause of action.

FACTS:

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The plaintiff/respondent owned a piece of land along a trunk 'A" road. He made

a building plan, got it approved by the 2nd defendant (2nd respondent in the Su-

preme Court) - the Ibadan Metropolitan Planning Authority and thereafter laid a

foundation for the building of fifteen shops and five office blocks. These buildings

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were meant to face the trunk "A" road. The plan showed a set back of 150 feet from

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the front of the building to the middle of the road as required by the Federal High-

ways (Building Line) Regulations, 1971. The Regulations prohibit the erection of

any building within the building lines and therefore, obstruction of the front of the

plaintiff's building by any structure was prohibited. The 1st defendant also got ap-

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proval from the same authority, the 2nd defendants, some eight months after that

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of the plaintiff to erect a building in the open space between plaintiff's building and

the road, and commenced construction thereby blocking plaintiff's view of the

road.

The plaintiff commenced action in the High Court claiming several reliefs

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against the defendants, including damages for the nuisance created by the 1st de-

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fendant's building under construction and an injunction to restrain him continuing

the construction. He asked for a declaration that the 1st defendant was construct-

ing his building within the set back of the building line of the trunk "A" road through

the active connivance and support of the 2nd defendant in disregard of building

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regulations and a second declaration that the approval of the 1st defendant's build-

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ing plan by the 2nd defendant was irregular and

ultra vires

the 2nd defendant.

After hearing evidence the learned trial Judge found that the 1st defendant was

indeed in breach of the Building Line Regulations based on the evidence of the

licensed surveyor and that the building blocked the access of the plaintiff from his

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building to the Federal Highway and this constituted a nuisance. These findings

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were not challenged at the Court of Appeal. He also held that a set back to a Federal

Highway could constitute a statutory right of way or easement for persons build-

ing adjacent thereto and that such a person, as the plaintiff. could bring an action

either in nuisance or as a violation of his right of way against any person who built

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any structures in front of his house. The learned trial Judge granted the first dec-

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laration sought but refused to declare the approval of 1st defendant's plan irregu-

lar as it was shown from the evidence of the surveyor that the 1st defendant had

deceived the 2nd defendant into granting it. In the event he awarded the sum of

N1,000 damages for the nuisance and granted the injunction to stop a continua-