CASE SUMMARY OF:
De Facto Bakeries & Catering Ltd v. Mrs. A. Ajilore & Anor (1974) - SC
De Facto Bakeries & Catering Ltd
Mrs. A. Ajilore & Anor
(1974) All N.L.R 878;
(1974) 11 S.C. 120;
LEAD JUDGEMENT DELIVERED BY:
G. B. A. COKER, J.S.C.
LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
- Chief F.R.A. Williams;
* FOR THE RESPONDENT
- Mr. B.O. Benson;
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Bank: Zenith Bank.
Name: Branham Paul Chima.
Account No.: 2178756839.
FACT (as relating to the issues)
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 N50,000 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.
HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED WITH N165 (to each respondents; 2nd & 3rd respondent is jointly) COST]
The argument of learned counsel overlooks a great number of matters which chatacterise (sic) 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.
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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 corporeal hereditament, a right which is enjoyed as part of a real property. - Coker, JSC. De Facto Bakeries v. Ajilore (1974)
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. - Coker, JSC. De Facto Bakeries v. Ajilore (1974)
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