TAIWO BUCNOR SMART V. THE STATE
August 9, 2025MUSHUD O. BADA V. MRS. H. F. PEREIRA & ORS
August 9, 2025Legalpedia Citation: (1974-11) Legalpedia 90336 (CA)
In the Court of Appeal
Holden At Lagos
Thu Nov 28, 1974
Suit Number: SC 297/1973
CORAM
COKER, JUSTICE SUPREME COURT
WILLIAMS, JUSTICE SUPREME COURT
IBEKWE, JUSTICE SUPREME COURT
PARTIES
DE FACTO BAKERIES & CATERING LTD
APPELLANTS
MRS. A. AJILORE & ANOR
RESPONDENTS
AREA(S) OF LAW
LAND LAW-LEASE-TRESPASS
SUMMARY OF FACTS
The Appellant/Plaintiff and Respondent/1st defendant are both lessees to different piece of lands numbered 16 and 17 accordingly. The Plaintiff violated their building plan and trespassed on the 1st defendant land. The Plaintiff & 1st defendant tried to come to an agreement and negotiate that the 1st defendant draw another building plan that will accommodate the plaintiffs trespass but there was a fall out of negotiations. The defendant then erected a building in accordance with the original building plan, hence obstructing the Plaintiffs window, doors and other outlets.
HELD
It was held that the appeal failed and it was dismissed with costs because there was no grant issued for an easement and the Adoptive bye laws was inconsistent with the Shomolu -Ilupeju Scheme (Approval) Order, so does not apply to the Shomolu- ilupeju Layout.
ISSUES
(1) Whether the plaintiffs were entitled to an easement over the adjoining plot No S.17 which the defendants could not disregard
(2)Whether the buildings of the 1st defendant, pursuant to her amended plan Exhibit R, were in contravention of Section 8 of the building Adoptive Bye-Laws Order 1960 (W.R.L.N. 171 of 1960), and so there should issue a mandatory injunction ordering her to pull down such buildings
RATIONES DECIDENDI
MEANING OF EASEMENT
Easement is a jus 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. – Per G.B.A Coker, JSC
CASES CITED
Not Available
STATUTES REFERRED TO
Section 10 of the Shomolu-Ilupeju Scheme (Approval) Order 1961 (W.N.L.R. No.60 of 1961)
