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Fajuke vs. Kupoluyi

LASE FAJUKE

( Substituted for Pa . S. A. FAJUKE )

V

O.O. KUPOLUYI

COURT OF APPEAL

( IBADAN DIVISION )

RAPHAEL OLUFEMI ROWLAND JCA ( Presided )

SAKA ADEYEMI IBIYEYE JCA

FRANCIS FEDODE TABAI JCA (Read the Lead Judgment)

CA/I/82/2000

MONDAY, 18TH APRIL, 2005

JUDGMENT AND ORDERS - Mistake in judgment of court -  When will vitiate judgment

JUDGMENT AND ORDERS - Order of court - Proper order of court made upon reliance on wrong or inexistent law - Validity of

PRACTICE AND PROCEDURE - Joinder of parties - Nuisance Joinder of Attorney-General in an action for public nuisance by private individual - When needless

TORT - Nuisance - Meaning of

TORT - Nuisance - Public nuisance -  Action for by private individual -  When needless to join the Attorney-General

TORT - Nuisance - Public nuisance -  Action for by private individual

-  Ingredients of

WORDS AND PHRASES - ‘Nuisance’ - Meaning of

Issues:

1.              Whether the claim in nuisance can be defeated by the finding of the trial court that the offending structure was erected outside the plaintiff’s land.

2.              Whether the principle in Ipadeola vs. Oshowole (1987) 5 SCNJ 200 that a private person can sue in nuisance without reference to or permission of the Attorney-General applied in this case.

3.              Whether the trial Judge’s reference to a “Country and Town Planning Law” instead of the “Town and Country Planning Law” has any vitiating effect on the judgment.

Facts:

The respondent as plaintiff before the High Court of Osun State, Ilesha Judicial Division claimed against the appellant N5,000 (five thousand naira) being general damages suffered by the respondent as a result of the trespass committed by the appellant upon the land of the respondent; N5,000 ( five thousand naira) general damages suffered by the respondent as a result of the appellant’s nuisance which consisted of erecting a building on respondent’s land, blocking his right of way to the land and failure to leave the necessary statutory road setback as well as an injunction to restrain the appellant from further entry on the land and compelling the demolition of the structures on the land.

After pleadings were filed and exchanged and evidence adduced including a visit to the locus in quo, the trial Judge dismissed the claim for trespass and allowed the claim for nuisance. He also awarded damages to the tune of N200 (two hundred naira) and ordered that the appellant remove his structures from the land.

Dissatisfied with the judgment, the appellant appealed to the Court of Appeal.