INJI vs. ISA(2022)LCN/16870 (CA)
ISSUE: EASEMENT-Nature and types of easement; Whether where a party alleges the existence of an oral agreement he is obliged to give credible evidence as to the modalities of such agreement.
PRINCIPLE:
“Section 51 of the Land Use Act of 1978 defines an ‘Easement’ thus:
“Easement’ means a right annexed to land to utilize other land in different holding in a particular manner (not involving the taking of any part of the natural produce of that land or of any part of its soil) or to prevent the holder of the other land from using his land in a particular manner.”
The Supreme Court in Olusanya V. Osinleye (2013) LPELR-20641 (SC) per Allagoa, JSC, also defined ‘easement’ or ‘right of easement’ from Black’s Law Dictionary, 7th Edition, as:
“An interest in land owned by another person, consisting in the right to use or control the land or an area above or below it for a specific limited purpose (such as to cross it for access to a public road). The land benefitting from an easement is called the dominant estate; the land burdened by an easement is called the servient estate. Unlike a lease or license, an easement may last forever but it does not give the holder the right to possess, take from, improve or sell the land. The primary recognized easements are –
(1) a right of way;
(2) a right of entry for any purpose relating to the dominant estate;
(3) a right to the support of land and building;
(4) a right of air and light;
(5) a right to water;
(6) a right to do some act that would otherwise amount to a nuisance; and
(7) a right to place or keep something on the servient estate.” (Emphasis supplied)
His Lordship went further to refer to and rely on an earlier decision of the Supreme Court in the case of Defacto Bakeries & Catering Ltd. V. Ajilore (1974) 1 All NLR (Pt. II) 385, 392; (1974) 11 SC (Reprint) 120. Therein, the Coker, JSC, defined ‘easement’ thus: “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 on 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.” (Emphasis supplied).
Thus, a right of easement such as right of way and/ or a right of access to property, as in this case, to be enjoyed over the property of another person, must be created by an express, implied or presumed grant, or by statute. As stated by the decided authorities, it is not by itself an incorporeal hereditament in the sense that, like other forms of personal property, it could be capable of being purchased or sold by anybody. Rather, it is a right appurtenant/adjunct/ancillary to a corporeal/physical hereditament, a right which is enjoyed as part of a real property. Hence, it is settled law that the right to an easement is inclusive and not exclusive, and does not grant the right to an exclusive and unrestrictive use of a piece of land. It cannot therefore for instance, sustain a claim in trespass. See Shira V. Shira (2020) LPELR-50322 (CA); Umar V. Knupda (2017) LPELR-461 (CA); Udoh V. Akwa Ibom State Govt. (2013) LPELR-21121 (CA); Muniyas (Nig) Ltd. V. Ashafa (2011) 6 NWLR (Pt. 1242) 85, 43-44; Okunzua V. Amosu (1992) 6 NWLR (Pt. 248) 416.
In the instant case, the Appellant whose ownership of her property (the dominant estate), is not in issue, pleaded the existence of the right of easement in respect of the property belonging to the Respondent (the servient estate), which both parties admit and it has been established by evidence to be located in front of her property. Thus, having made the positive affirmation, the onus of proof lay on the Appellant to, not only prove her right of easement, but to also prove the extent or magnitude of the easement (access road) in terms of size. In other words, it was first incumbent on the Appellant to prove that the right of way or access to her property was expressly, impliedly or presumably created by the agreement pleaded, since in the instant case, no law, such as a Prescription Law, enacted by some other States in the country such as Oyo State, was pleaded.
By paragraphs 4-9 of the statement of claim, the Appellant’s case is that the right of easement of five feet from the Respondent’s property was created by the previous owner of the property, Usman Isah (deceased), to allow access to her own property which is located behind the Respondent’s property. Kasimu Usman, PW2, inherited the first house in front of the Appellant’s house (i.e., the house now owned by the Respondent) from his deceased father and he sold it to the Respondent’s father. However, the Respondent’s case was that when he inherited the property from his father, the accessway he found leading to the Appellant’s property located behind his house, was only two feet wide. However, when reconstructing his property, he increased the access road to three and half feet. He denied that at the time he took over the property, the access road was five feet. Both parties adduced oral evidence in proof of their opposing positions.
The learned trial Judge evaluated the evidence of all the witnesses before the Court in his judgment. The Appellant adduced evidence to establish that both houses on the premises previously belonged to Usman Isah (deceased). Before Usman died, he gave his brother, PW1 (Mohammed Usman) the second house located at the front of the property, while upon his death, his son, PW2 (Kasumu Usman) inherited the first house located at the front of the premises. PW2 stated that he later sold the house he inherited to the Respondent’s father (also deceased), while PW1 sold his house, (behind the first house) to the Appellant. At the time of the sale, PW2 claimed that he entered into an agreement with the Respondent’s father in the presence of witnesses, that the right of easement measuring five feet will be provided for use as access/easement to the house behind the Respondent’s property then occupied by his uncle, PW1, but which now belongs to the Appellant. Both PW1 and PW2, as well as PW4, a neighbour (Mohammed Musa Gadam), claimed to have witnessed when the oral the agreement was made with the Respondent’s father.
Upon being cross-examined, both PW1 and PW2 referred to a written sale agreement in respect of the first house/apartment between PW2 and the Respondent’s father, which they both signed. PW2, who sold the property to the Respondent’s father stated categorically under cross-examination that the area of five feet right of easement agreed upon by the parties, to wit: PW2 and the Respondent’s father, in the presence of PW1 and PW4, was not reduced into writing. PW3 (the Appellant) had no personal knowledge of the right of easement, except that which she had been told by PW1 and PW2. Thus, contrary to the finding of the trial Court, there was no contradiction in the evidence adduced by the Appellant on the issue of whether the agreement reached on the right of easement was in writing or not. Thus, the finding therein is misconceived, and since it is not based on the evidence before the trial Court, it is perverse.
Against the Appellant’s case, the Respondent testified as DW2 and called one other witness, DW1. The substance of their evidence is that the Respondent’s father, now deceased, bought the property from PW2. They both contend that the right of easement between the Respondent’s property located in the front of the Appellant’s property had previously been two feet. However, that the Respondent due to his magnanimity, increased it to three and half feet. They denied any knowledge of any agreement reached between PW2 and the Respondent’s father that the right of easement was five feet.
From the authorities cited, for a right of easement such as a right of way or right of access to succeed, it must be one that has been properly created expressly, impliedly or presumably. The evidence from both sides of the divide agree that there is a right of easement. The dispute is simply as to the extent, magnitude or dimension. The learned trial Court, upon the application of the Appellant, moved to the locus in quo for inspection.
After considering the evidence adduced before the trial Court and weighing same, the learned trial Judge found that the Appellant failed to discharge the burden of proof placed on her by Sections 133 & 134 of the Evidence Act, 2011. He pointed out what he referred to as contradictions in the evidence of the prosecution witnesses which detracted from its credibility, in the face of the Respondent’s defence. Consequently, he held that the Appellant did not prove her claim for a declaration that the right of easement through the Respondent’s property was five feet, as opposed to the three and half feet then provided. It is worthy to note that from the evidence of the Appellant as PW3, that the present easement and access to her house is no more than a footpath (referred to as ‘lungu’ in Hausa), which can only be accessed on foot and/or by a motorcycle, but not by a four-wheeled vehicle. This was confirmed by the trial Court on its visit to the locus in quo (page 157 of the record). The question is: whether the finding of the trial Court that the Appellant failed to discharge the burden of proof on her, was borne out by the evidence placed before the trial Court?
The law is trite that in civil cases, the evidential burden of proof is on the party who asserts a fact to prove same. The standard of proof is on a preponderance of evidence and a balance of probabilities. A party must prove his case based on the credible evidence adduced through his witnesses and/or documents. In the instant case, the first duty of proving that the right of easement of five feet on the property by agreement, express, implied or presumed, is on the Appellant. It is only when that has been proved to the standard required by law, that the Respondent would be required to lead evidence in rebuttal or in proof of his opposing position. Therefore, until the onus of proof cast on the Appellant is discharged, the onus does not shift. In other words, it is only after the claimant has proved his assertions of fact, that the burden shifts to the defendant. See Unoh V. Nigerian Prisons Service (2022) LPELR-57251 (CA); Okoye V. Nwankwo (2014) LPELR-23172 (SC); Mbanefo V. Agbu (2014) LPELR-22147 (SC); Ohochukwu V. AG Rivers State (2012) 7849 (SC); Dongtoe V. CSC, Plateau State (2001) LPELR-959 (SC); Daodu V. NNPC (1998) 2 NWLR (Pt. 538) 355.
Upon a close examination of the evidence adduced by the Appellant through her witnesses, I must answer the question in the negative, i.e., that this finding was wrong based on the facts on record. With due respect to the learned trial Judge, after due consideration and review, it is evident that his finding is not in tandem with the evidence of PW1, PW2 and PW4. As I found earlier, the evidence of these witnesses in their written statements on oath which were adopted in Court, was that there was an express agreement for five feet right of easement between PW2 and the Respondent’s father. The evidence of PW2 is that of an eyewitness since (1) he sold the land to the Respondent’s father and (2) the oral agreement was reached between him and the Respondent’s father. Contrary to the contention of the Respondent, there was no mention in the record of appeal of same having been reduced into writing. It was an oral agreement, as was expressly affirmed by PW2 in his evidence under cross-examination.
The reference by PW2 to a written agreement under while being cross-examined was clearly as it relates to the sale transaction/agreement in respect of the sale of the house by PW2 to the Respondent’s father. It is self-evident and therefore correct to say that upon a proper reading, the evidence of PW2 was slightly ambivalent/uncertain on whether or not the agreement reached on the sale of the first house to the Respondent’s father was reduced into writing. This is because PW2 first said the transaction on the sale of the house was not in writing, and then later he stated that it was in writing and was signed by both him and PW1. Since the issue of the title or ownership of the house was never in issue, the question of whether or not the transaction on the sale of the house between PW2 and the Respondent’s father was in writing, is immaterial to the dispute as to the right of easement. The established fact is that the house at the front of the property belongs to the Respondent, having inherited it from his deceased father, who bought same from PW2; while the house at the back of the property belongs to the Appellant, having bought it from PW1, who was gifted same by PW2’s father before his demise.
PW2 was however consistent in maintaining that the five feet right of easement agreed upon between him and the Respondent’s father was not included in the agreement for the sale of the house, and so was not reduced into writing. See pages 123-124 of the record of appeal. For ease of reference, the evidence of PW2 under cross-examination (at pages 123-124 of the record), is captured hereunder:
“It is true that I sold my late father’s house to the late father of the defendant before his death. There is no written agreement in respect of the transaction of my sale of my late father house to the defendant’s father… The agreement I entered into between me and the defendant’s father was reduced into writing… after the agreement was reduced into writing I signed as the seller of the house to the defendant’s father… I know Muhammadu Usman he is my paternal uncle, brother to my father. Muhammadu was around during the sale transaction which was reduced into writing and I signed. Muhammadu Usman my paternal uncle signed the agreement as a witness. The issue of the five feet was not written in the sale agreement and in fact was not reduced generally into writing. It is true that (the) agreement whether written or not it was with the father of the defendant and not with the defendant in this case… I still maintain my ground that based on the agreement five feet is to be left as an exit to the plaintiff. The fault is that of the father to the defendant and not that of the prospect (sic) defendant.”(Emphasis supplied)
PW2 reiterated his position of the five feet right of easement when re-examined. PW1 and PW4 who were present when the agreement on the right of easement was reached, corroborated PW2’s evidence in this regard.
Having established that the agreement on the right of easement was oral and not in writing, the question is: what is the import of an oral agreement in law? Is it effective and does it have legal force to bind the parties to it? The law is that a contract agreement may be in writing, orally or even by the conduct of the parties. This was the view of the Supreme Court in the case of AG Rivers State V. AG Akwa Ibom (2011) 8 NWLR (Pt. 1248) 31, 108, where it was held that an agreement need not be in writing nor signed by the parties. It can be oral or inferred from the conduct of the parties. What matters is that there must be evidence of consensus ad idem between them.
It is therefore trite that for there to be a binding contract or agreement between parties, they must be in consensus ad idem. In law, the existence of oral agreement is still subject to proof by credible evidence, including the modalities for and/or of such oral agreement, and not by mere averments in pleadings, failing which such averments on the oral agreement would remain bare and therefore, unproved and of no consequence. Thus, where a party alleges the existence of an oral agreement, he is obliged to give credible evidence as to the modalities of such agreement. Hence, such a party who alleges the existence of oral agreement is duty bound to prove it – Shitgurum V. Sunvic Invest. Co. Ltd. (2022) LPELR-57790 (CA) 34, A-C; Conoil Plc V. Nwuke (2017) 4 NWLR (Pt. 1555) 294.
On the facts in the instant case, the evidence of PW1, PW2 and PW4 was no doubt credible. Both PW1 and PW2, being family members, acquired their prior interests in the first and second houses on the property from the same source, to wit: PW2’s father. PW2 was categorical is stating that when he sold the house located at the front of the property to the Respondent’s father, they agreed that a right of easement of five feet would be provided as access to the second house behind. From the evidence of the Respondent, DW1, this sale transaction took placed way back in 2004 when DW2 was not in the picture. Under cross-examination, PW2 reiterated this evidence to the effect that, whereas the agreement for the sale of the house to the Respondent’s father was reduced into writing, the agreement in respect of the right of easement was not included therein. PW1 and PW4 who witnessed when this oral agreement was made, confirmed this piece of evidence, the minor discrepancies in the evidence notwithstanding.
On the other side of the scale is the evidence of DW1. He also claimed to have witnessed the sale transaction of the house by PW2 to the Respondent’s father way back in 2004. While not saying anything on the agreement on the right of easement, he said that, as far back as when the house was sold, the right of easement has measured only two feet, and that it was the Respondent, DW2, who increased its dimension to three and half feet. His evidence is no doubt on what exists and not on the oral agreement made with the Respondent’s father. If the father did not implement the oral agreement, it does not detract from the evidence showing that such an agreement was indeed reached. On the other hand, the Respondent, who did not claim to have been present when his father and PW2 agreed on the right of easement, admitted not having first-hand knowledge of the agreement. Hence, his evidence is limited to his awareness that since he inherited the house from his father, the right of easement measured two feet until he increased it to three and half feet. Thus, his main defence to the claim is that, even if there was such an agreement, he was not privy to it and therefore it does not bind him. The Respondent has therefore relied on the doctrine of privity of contract to claim that he was not bound by the contract entered into between his late father and PW2, the Appellant’s predecessor in title.
It is an elementary principle of law that the doctrine of privity of contract is to the effect that a person who intends to enforce a contract/agreement must show, not only that he gave consideration, but that he is a party to the contract. In law, a contract exists only between the parties to it, and of course their privies. A person who is not a party or privy to a contract, cannot sue or be sued on it. By the doctrine of privity of contract, a contract cannot confer rights or impose obligations arising therefrom on any person, except the parties to it. Put simply, a stranger cannot acquire rights or incur obligations arising from a contract to which he is not a party. There are however exceptions to the general rule. For instance, where an agency relationship can be established, where a deed of sale of family land had been executed without the consent of members of the family, where a trust is created for the benefit of a third party, and generally in land matters, are some of the exceptions to the general rule of privity of contract. See Coast Oil Ltd. V. Tuboscope Vetco Int’l Ltd. (2019) LPELR-46450 (CA) 17-18, B-D; The Reg’d Trustees of Masters Vessel Ministries Nig. Incorp. V. Emenike (2017) LPELR-42836 (CA) 14-15, D-B; Reichi V. NBCI (2016) LPELR-40051, 1, 25; Rebold Industries Ltd. V. Magreola (2015) LPELR-24612 (SC) 1, 22-23; Ayilara V. Fed. Ministry of Works & Housing (2013) LPELR-20772 (CA); Makwe V. Nwukor (2001) LPELR-1830 (SC).
Thus, in order to determine whether the doctrine of privity of contract applied to this case based on the facts laid before the trial Court, the Appellant needed to prove that there existed an agreement between PW2 and the Respondent’s father that the right of easement between the two houses (on one property previously owned by one man, PW2’s father), should be five feet. As a result, contrary to the finding of the learned trial Judge, the evidence offered by the Appellant’s witnesses in this regard, was credible and preponderated on the side of the Appellant. Therefore, being an issue which relates to the right of easement/access to the property in question, the Respondent was bound by the oral agreement entered into with his father (his predecessor in title), and so, as privy, is not covered by the doctrine of privity of contract. Consequently, since the fundamental fact of the existence of an agreement was proved on a preponderance of evidence, the Respondent was bound to such agreement, albeit oral. I so hold.
Consequently, it is based on all these findings that I resolve the lone issue for determination in favour of the Appellant
On the whole, I find merit in the appeal. It succeeds and is allowed.
Accordingly, I set aside the judgment of the High Court of Justice, Gombe State, delivered in Suit No. GM/90/2017 on 31st October 2018, Coram: J.A. Awak, J.
In its stead, I enter judgment for the Appellant in terms of paragraphs 12 (a) (b) and (c) of the statement of claim. Parties are ordered to bear their costs.” Per SANKEY, JCA.