Filed in Real Estate by on April 4, 2011

Court accedes to Omole residents’ plea to challenge hotel project
Monday, 04 April 2011 00:00 By Emmanuel Badejo Property – Property

FINDING the stance of a Lagos State High Court unmeritorious, a Court of Appeal, Lagos, has held that residents and members of Omole Phase II estate have the legal right to challenge the state government over an approval to erect a guesthouse or a motel within the estate.

This was the conclusion of Justice Clara Bata Ogunbiyi in an appeal by Brig. Gen Fred Bin Chijuka (rtd) and nine others, who approached the court in the capacity of chairman and principal members of the estate for themselves and on behalf of residents and landlords of one of the Government Reserved Area settlements within the metropolis.

They sued one Mr. Kenneth Maduewesi and Lagos State Government, first and second respondents respectively.

Moved to stop the location of a guesthouse within the estate, already approved by the state, the appellants had sought for court’s intervention to basically nullify the said approval.

The claimants had in their statement of claim deposed that the construction of a hotel, motel or guesthouse or the like in the midst of their houses, a purely residential area, would not only breach the purpose of the certificate of occupancy and relevant laws but will subject them to some serious moral and security hazards.

Specifically, they complained that they would be exposed to prostitution and armed robbery, within the vicinity of the estate.

According to the residents, they said their right to safety and security of their families and property would be imminently threatened. They therefore asked the court among others to declare that the first defendant’s action if allowed will amount to a violation of the environmental and physical plans of the estate with grave damage for which no sufficient or adequate remedy will be available and a declaration that the proposed use of Plot 718 Block 27 Omole Phase Layout, Ikeja, by the first defendant as hotels, motels, inn, guest houses, chalets or the likes is illegal, null and void.

But in a preliminary objection, the defendants argued that the residents had no locus standi to initiate the suit in the first instance.  They also filed a counter affidavit.

Ruling, Justice Mufutau Olokoba of Lagos High Court struck out the suit on the ground that the plaintiffs lacked the locus standi to institute the action.

Dissatisfied, the residents appealed the ruling.  Three justices, including Ogunbiyi, Hussein Mukhtar and Mohammed A. Danjuma sat on the appeal.

According to her lead judgment, Ogunbiyi said: “In my view and having regard to some of the paragraphs in the statement of claim and with strict analysis of the reliefs sought for in particular, the main purpose of the appellants’ action was to enforce their fundamental rights and also to prevent the occurrence of likely public nuisance, which may arise as a consequence of the acts of the first respondent. On the question as to who has the responsibility of preventing public nuisance under our law, reference can properly be made to judicial authorities.

After citing an authority, Ogunbiyi said constitution had vested the courts with powers to determine any question as to the civil rights and obligations between government or authority and any person in Nigeria.

“Accordingly, where the determination of the civil rights and obligations of a person is in issue, any law which imposes conditions is therefore inconsistent with the free and unrestrained exercise of that right, and rendering void to the extent of such inconsistency.  Thus the restriction imposed at common law on the right of action in public nuisance is inconsistent with the provisions of section 6(6)(b) of the 1979 Constitution, and to that extent is void.

One Mrs. Quadri who on record did not file any process throughout the proceedings represented the Judge observed further that in the instant case, Lagos State was named as the second defendant.  Also, Ogunbiyi noted that the claimants being landlords, allotees and tenants of the estate had common interest and concern on what happens at the estate.

Deciding the first issue, Ogunbiyi said: “I hold that the action of the appellants was properly constituted and hence they therefore had the necessary legal capacity to institute the action at the High Court, Ikeja.  The first issue is therefore resolved in favor of the appellants.”

On the totality of the appeal, the court had this to say: “Same is disposed of on the first issue wherein the appellants are held to have locus standi to prosecute their claim at the lower court.”

Consequently, the ruling of the trial judge was therefore set aside. While the appellate court did not make any order as to cost, an order directing that the suit proceeds on trial was made with a fiat for the Chief Judge of Lagos to reassign the suit to another judge.


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