FOR the purpose of preserving the crux of a dispute - the development of 14-storey office complex, belonging to a commercial bank - a Court of Appeal, Lagos has ordered that the proposed project should not go beyond second floor, pending the hearing and determination of an appeal of a suit involving a renowned activist, Dr. Tunji Braithwaite and Standard Chartered Bank of Nigeria Limited.'I hereby make an order of interlocutory injunction restraining the respondent, quia timet whether by itself, its agents, proxies or howsoever from continuing to carry on civil engineering and building works beyond the second floor in respect of the building project proposed by the respondent at No. 142 Ahmadu Bello Way, Victoria Island, Lagos'' Justice Adzira Gana Mshelia had held.The injunction order, prompted by Braithwaite came at a time when the civil work was in top gear on the site.Indeed, this case will be an interesting one as Justice Mshelia had in his ruling thrown up some posers: 'Is there any special factor(s) to be considered' I think the trend for indiscriminate use of purely residential areas for commercial and industrial purposes is an interesting issue, which our town planning officers ought to look at and I think this will be an interesting hearing at the court below.'Persons who have been lured to purchase properties meant for their quiet enjoyment and comfort should be able to maintain that status. Should anybody complain about noise pollution around his residence' What about toxic and chemical waste emitted from some of these commercial and industrial concerns embedded in purely residential areas' These and more, I guess will agitate the minds of both counsel and the court when this matter shall be heard at the court below.'Clearly displayed on the site are names of different contractors including Cappa & D'Alberto, main contractor, the architectural firm, FMA Architects Limited; structural engineers, Morgan Omonitan & Abe Limited; electrical services engineers, CA Consultants Limited; quantity surveying firm, Tillyard Nigeria Limited and electrical and mechanical engineers, etco.While Ovena Majesty Plaza is standing right to the site along Ahmadu Bello Way, a property being used by Enterprise Bank is located on the left, and Gallery Art building is directly facing the site to the front, while Braithwaite's house is directly located behind the site.Specifically, the building will have total office space approximately 10,000 square metres. The first phase is a 14-storey tower block and the second phase is the six levels of structured car parking at the rear. In between both phases there will be a migration from the existing head office building to the new tower block after which the existing head office building will be demolished to make place for the car parking facility.According to the design of the project, the ground and first floors will house the reception and retail banking units while the second to 13th floors will house offices, technical rooms and other staff facilities. The 14th floor is the executive floor while the roof houses the balance of the building services. Four lifts and two staircases service the floors. A fifth lift is dedicated to the car park.Just as the N7.2b project was about to take off, Braithwaite, whose spacious white-house on Elias Close, Victoria, directly adjacent to the site, had gone to court asking that his right to easement including air, light and protection against noise pollution and emission of toxic gaseous substances be preserved.According to him, the premises of the bank and respondent in the suit, No 142, Ahmadu Bello Way, Victoria Island, Lagos, was meant for residential purposes only and could not accommodate huge commercial building to the annoyance of its neighbors. And after the lower court visited the property, it made a preservative order.In moving the application, Braithwaite, who appeared in person, contended that the situation in the application was such that an interlocutory injunction should granted.He further argued that the 14-storey building by the bank would destroy the amenity value of his property. According to the applicant, he had prayed the trial court to extend the life span of the preservative order but the court below refused and an appeal was consequently filed. The applicant further said that the bank got a building permit or licence could be a licence to commit nuisance.In response, counsel to the bank, Messrs A. A. Adegbomire, submitted that the court below was right to refuse to extend the preservative order because there was already an appeal before the Court of Appeal, arguing further in considering the application for injunction, the applicant must, apart from the need to preserve the res, showed that he had a right to be protected by the grant of an injunction.According to Adegbomire, the balance of convenience was in favor of the bank because section 43 of the 1999 Constitution of the Federal Republic of Nigeria gave the bank as a corporate citizen of Nigeria the right to acquire and develop immovable property in Nigeria, adding that as long as the respondent obeys the laws of the land, it had the a right to develop its property. 'That since the Lagos State Government has given approval for the respondent to construct the building, the applicant should rather sue the government and not the respondent.'It was further contended that that if the work was stopped, it would lead to structural defect and the building might collapse and kill people.Ruling, their lordships, Adzira Gana Mshelia, John Inyang Okoro, Mohammed Ambi-Usi Danjuma, who agreed that the applicant met the conditions for granting of a preservative order.'The right of the applicant sought to be preserved is, accordingly, right to air, light and protection against noise pollution and emission of toxic gaseous substances. This right to air and light is what is legally termed as right of easement, which means a right annexed or attached to land to utilize or enjoy another land owned by another person in a particular manner and it may sometimes give additional right to or prevent the owner of the dominant tenement from utilizing his own land in a particular manner. This right confers no proprietary or possessory right in the land affected, but merely imposes a definite and limited restrictions upon the proprietary rights of the owner of the land.'The lead Judge further said that there was no doubt that our laws recognised the right to easement and where there was a threat to such right, the law and the courts must protect such rights. 'It is the duty of the court to protect the res from being completely destroyed. Even where there is approval or building permit from government, this does not obliterate the right of easement, which the law confers on the neighbors. No building permit should be interpreted to mean that such a building could completely annihilate the right to air and light of the adjourning property.'And after considering the application on all grounds, the court was persuaded that granting the application was needful. But for the argument that should the civil work be stopped, it could affect the entire construction work, their lordships thus ordered that the project be stopped at the second floor.
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