IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA
BEFORE HIS LORDSHIP: THE HON. JUSTICE PETER O. AFFEN
FRIDAY, DECEMBER 20, 2019
SUIT NO. FCT/HC/CV/0571/2018
BETWEEN:
MR MAXWELL OPARA … … CLAIMANT
AND
1. MR MOSES AMAJAMA … … DEFENDANTS
2. MR DANJI-DUNJI JIMOH TAKUMA

JUDGMENT
Introduction
1. The Claimant herein [Maxwell Opara, Esq.] is a legal practitioner plying
his trade within the jurisdiction of this court. But this litigation has nothing
to do with his legal practice. Rather, it appertains to the Defendants’
activities at ‘MajorGarden’ adjoining the Claimant’s residence situate at
Plot 3627Cadastral Zone F01, Kubwa District, Abuja, which, in the
Claimant’s estimation, constitute nuisance. The 1st Defendant [Moses
Amajama]is the operator of a restaurant [or Beer Parlour] at Major
Garden, whilst the 2nd Defendant [Danji-Dunji Jimoh Takuma]is a director of
Dutse-Gbayi Cooperative Societyand Dutse-Gbayi G. C. Limited which
are the owner and manager respectively of Major Garden. The
Claimant is irked by goings-on at MajorGarden and has taken out this
present action, claiming against the Defendants, jointly and severally, the
reliefs endorsed in the amended statement of claim dated 30/4/18
[which relates back to 8/1/18 when the original writ of summons and
accompanying statement of claim were filed] as follows:

“a. A DECLARATION of the Hon. Court that Cadastral Zone F01 is by

virtue of the Plaintiff’s instrument of allocation designated a
 residential area and as such the plots of land in Cadastral Zone
F01 must be used for the said purpose only.

b. A DECLARATION of the Hon. Court that the actions of the

Defendants in consistently playing loud music in their Beer
Parlourright behind the Plaintiff’s residence at Plot 3627
Cadastral Zone F01 amounts to nuisance and are condemnable
and wrongful.

c. AN ORDER of this Honourable Court directing the Defendants and

any person claiming through him to abate the nuisance.

d. AN ORDER of perpetual injunction restraining the Defendants

whether acting by himself or through his agents, privies or any
other person from further engaging in playing loud music to the
irritation of the Plaintiff and/or harbouring all manner of hoodlums
who have converted the beer parlourbehind the Plaintiff’s
residence into an Indian hemp smoking centre.

e. AN AWARD of N50,000,000.00 (Fifty Million Naira) as damages

for nuisance.

f. 10% interest on post-judgment sum till final liquidation of same.”

2. The Defendants filed a joint statement of defence dated 17/10/18 by

which they joined issues with the Claimantwho also filed a reply dated
22/10/18. At the plenary trial, the Claimant testified for himself as
PW1 and called no other witness, whilst the 2nd Defendant testified as
DW1 and called no other witness.

Claimant’s evidence
3. Testifying for himself as PW1, the Claimant [Maxwell Opara,
Esq.]adopted his statements on oath dated 30/4/18 and 22/10/18
respectively,and tendered Exhibits P1 – P4A. ExhibitP1is a right of
occupancy dated 22/4/15 and issued in favour of one Zainab Nasir
Kwarraover Plot 3627 Cadastral Zone FO1, Kubwa, Abuja; Exhibit P2is

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 an Irrevocable Power of Attorneydonated by Zainab Nasir Kwarrain
favour ofBarr. Maxwell Opara; Exhibit P3is a letter dated 19/4/16
addressed to the Deputy Inspector-General of Police, Criminal
Investigation Department, Area 10, Garki, Abuja by Messrs.C. S. Nwaogu
& Associates; whilstExhibits P4 and P4Aare photographs and certificate of
compliance dated 18/6/18 respectively.

4. The Claimant deposed in his statement on oath dated 30/4/18 that the
1st Defendant is a businessman who operates an illegal Beer Parlourwithin
Cadastral Zone FO1, FCT, Abuja whilst the 2nd Defendant is the
Chairman/Chief Executive Officer of Dutse Gbayi G.C. LTD [also known
as Dutse Gbayi Garden Co-operative Limited] situate at No. 1 Living
Faith Junction, Major's Garden, Kubwa, Abuja, and who, for the purposes
of this action, rented the space to the 1st Defendant for the Beer Parlour
business; that the 2nd Defendant is a notorious land racketeer who is in the
habit of leasing land not owned by him to unsuspecting members of the
public and encourages them to use same for unapproved purposes; that
he moved into his 5-Bedroom Duplex situate at Plot 3627 Cadastral Zone
FO1, Kubwa District, Abuja sometime in 2016; that the documents of title
show that the Cadastral Zone FO1 is clearly designated as a residential
area and he is entitled to quiet, peaceful and undisturbed enjoyment of
his 5-Bedroom apartment whereat he resides with his family; that he
observed with dissatisfaction the inordinate attitude of owners of Beer
Parlours (inclusive of the 1st Defendant) situate proximate to his residence,
as they played loud music continuously especially between the hours of
6:00 p.m. and 11.00 p.m. when he returns home from work but cannot
rest owing to the Defendants’ loud and irritating music,thereby putting the
land to wrong use; that he confronted the 1st Defendant and warned him
to desist from such by abating the loud playing of music at hours of the
day when he and members of my family are either resting, sleeping, or

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 carrying out serious research in preparation for the next day's matter in
court but to no avail as the Defendants not only intensified their loud
music butalso extended their activities till12 midnight; that because the
Defendants' beer parlour and his residence have a common fence,
theirloud music,which is so close to his hearing and irritation, constitutes
ahigh level of nuisance and serious disturbance to him and members of his
family; that the extent of noise ensuing from the Defendants' place of
business defeats the idea behind designating Cadastral Zone FO1 solely
for residential purposes; that the Defendants have converted the place
into a noisy commercial centre by playing loud music which leaves himin a
restless state; that a visit to the Beer Parlour will show the big
loudspeakers being used by the Defendants and there is no indication
that they are willing to abate the nuisance; that not only has the kind of
music and noise emanating from the Defendants' place of
businessattracted hoodlums who have made it a good meeting point to
perpetrate evil times without number, the Defendants equally use their
place as a rendezvous forcommercial sex workers where young girls
indulge in public exhibition of sexual acts; that hoodlums have converted
the Beer Parlour into a centre for smoking an Indian Hemp, wherefore the
stench of smoke in the atmosphere permeates hispremises thereby making
him and his family members, including children between the ages of 3
and 9 years, secondary smokers without choice and exposing them to
serious health hazards; that it is a notorious fact that second-hand
smoking is more dangerous and damaging to the human health than
actual smoking; that the public display of sexual proclivity by the
Defendants' customers who are mostly prostitutes, his children and other
family members are exposed to all manner of nudity and uncensored
sexual acts; and that despite several attempts to call them to order, the
Defendants have refused and neglected to abate the nuisance.

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5. The Claimant further deposed in his statement on oath dated 22/10/18
that he knew for a fact that the Defendants’ beer parlour and shop are
being used for the smoking of Indian hemp and prostitution, which are
illegal activities; that Bwari Area Council has no power whatsoever
under the law of land administration in the FCT; that the title documents to
Plot 3627 at Cadastral Zone FO1 Kubwa, Abuja show that his plot of
land as well as other adjoining plots were allocated for residential
purposes only; that the Defendants deployed fallacy to hoodwink this
court by claiming that he has a pending matter on declaration of title in
Suit No. CV/127/16 before Hon Justice Kekemeke of the High Court of
FCT whereas the said suit is founded on trespass to land; that the
Defendants’ garden cannot be described as a recreational centre as it is
notorious as a den for prostitutes, playing of loud music and smokers; that
his title documents show clearly that Plot 3627 at Cadastral Zone FO1
Kubwa, Abuja was allocated for residential purposes only, even as there
is an irrevocable power of attorney empowering him in respect of same;
that he knew for a fact that some hoodlums who were smoking illicit drugs
harassed and almost attacked the Bailiff of this Court who went to the
garden to effect service on the 1st Defendant, and court was duly
informed; that the Defendants had been intimidating/harassing the
residents even before he moved into Plot 3627 Cadastral Zone FO1
Kubwa, Abuja; that the 2nd Defendant even attacked him and his workers
with a pump action gun, whilst his thugs chased him and his
workerswhereupon he petitioned the police, through Messrs. C. S. Nwaogu
& Associates and the 2nd Defendant was arrested and the pump action
gun recovered from him; that smoking, playing of loud music, partying
and prostituting are still on the increase and he caused pictures to be
taken of them; that notwithstanding the purpose of the Defendant’s
allocation, they are meant to abstain from nuisance since his allocation is
for residential purpose; and that because there are no toilet facilities in

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 the Defendants’ shop, the prostitutes defecate in the open and pour same
over his fence on daily basis, which was what constrained the Claimant to
invite the Bwari Area Council in tune with law of proper sanitation.

6. Under cross examination by C. E. Okafor, Esq., of counsel for the

Defendants, the Claimant [PW1] rejected the suggestion that the
photographs [Exhibit P4] were taken on 18/6/18 being the date stated
on the certificate of compliance [Exhibit P4A], or that the photographs
were taken even before he engaged the photographer, or that the
photographer took the photos in 2017 but was engaged on 18/6/18 as
shown in the certificate, insisting that the photographs were taken when
the Defendants were having Valentine’s Day Celebration on 14/2/17
which is different from the date of issuance of the certificate [Exhibit P4].
He maintained that other than the certificate of compliance, he does not
have any other document showing that he engaged the photographer;
that the persons shown in the photographsare the prostitutes in that
garden but does not know them by name; that he neither covered the
faces of the three boys directly facing the camera nor did he instruct the
photographer to do soand would not know if that is evidence of
alteration. The Claimant conceded that one of the photographs shows
people that appear to be dancing whilst those in the first and second
photographs appear to be smoking Indian Hemp. He maintained that he
has lodged several complaints withthe Deputy Inspector General of
Police, NDLEA and different police formations which carried out arrests
but the Defendants would ensure their release from detention; and that
he has even lodged complaints against the proprietor. The Claimant
conceded that his house is for residential purposes in F01 Layout, which is
a very large expanse of land but did not know the number of plots in
F01 Layout; that there are schools in F01 Layout which is not a residential
purpose even though there areTeachers’ Quarters; that apart from his

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 title documents, there is no other title document in regard to F01 Layout
before the court; that to the best of his knowledge, the 2nd Defendant’s
property [i.e. Major Garden] is not in F01 Layout; that he does not know
the purpose of allocation of the 2nd Defendant’s land, but it cannot be for
the purpose of committing crime; that the 2nd Defendant’s property is
being used as a park/garden; that the 2nd Defendant tried to oppose
him when his property was under construction; that the 2nd Defendant’s
garden was there before he acquired his plot of land; that he knew
about the Garden/Park before he commenced building, but does not
know how long the garden had existed before he got there; that he knew
that hoodlums patronise the garden because they smoke Indian Hemp,
drink to the point of intoxication into the early hours of the day, play loud
music and make noiseand there is always physical fight among themand
the police was invited on several occasions. He stated that the 2nd
Defendant’s property is a large expanse of land, but what affects him is
the gardenwhich covers about two or three plots of land; that he had a
disagreement with the 2nd Defendant when he came to erect his building;
that the matter pending before Kekemeke, J. is for
trespass/encroachment, not nuisance; that the entrance to his house which
fenceis different from the entrance to the garden, but what separates his
residence from the 2nd Defendant’s garden is his back wall.

Defendants’ evidence
7. The 2ndDefendant,Danji-Dunji Jimoh Takuma [DW1] adopted his
statements on oath dated 18/10/18 and 5/12/18 respectively and
tendered Exhibits D5 – [Link] D5is a Conveyance of Provisional
Approval dated 15/5/2001 in favour of Dutse-Gbayi Cooperative
Society; Exhibit D6is a letter dated 29/8/16 titled “Re: Application for
Search on Plot No. Park 1, Kubwa Extension IIIB Layout and Exhibit

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 D7Aand D7Bare Departmental Receipts dated 25/6/18 and 13/11/18
issued by Bwari Area Council to Major Gardens.

8. The 2nd Defendant [DW1] deposed in his statement on oath dated

18/10/18 that the 1st Defendant is a Shop (restaurant/ beer parlour)
owner at Major Gardens, Kubwa, Abuja which is a recreation/relaxation
Park and Green Area lawfully approved and designated by the
Department of Parks and Recreation, (DPR) Abuja Metropolitan
Management Agency (AMMA) of the Federal Capital Territory
Administration and a tenant of hiscompany, which is the owner of the
Garden, that he is a Directorof both Dutse-Gbayi Cooperative Society
and Dutse-Gbayi G.C. Limited who are the owners and managers
respectively of the Park; that the 1st Defendant’s restaurant and bar shop
is a lawful business and means of livelihood carried on within the
perimeter of a legally approved and designated park; that he does not
engage in land racketeering or any other unlawful trade/business; that
the parcel of land belonging to his company is bounded in the South by
Circular Road and Government Day Secondary School, Dutsen Alhaji, to
the North by Community Cemetery, to the East by Bwari Expressway and
from the various survey plans of the area made available to him, there is
no residential plot that intersect or havecommon boundaries with the said
parcel of land; that title relied upon by the Claimant as the foundation of
his ownership of Plot No. 3627 at Cadastral Zone FO1 Kubwa District
Abuja said to have been transferred to him by one Zainab Nasir Kwarra
is highly questionable and unreliable; that whereas the Claimant claimed
to have purchased the land sometime in 2015 and parked into his house
in 2016, his Company's plot of land was granted in 2001and approval
for the development, management and operation of the Park was
granted by the Department of Parks and Recreation, Abuja Metropolitan
Management Agency of the Federal Capital Territory Administration in

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 July 2007, which is about 8 to 9 years before the Claimant contemplated
coming to the area; that his company's land is situate in Kubwa Extension
111 Layout created and allocated since 1998, whereas the Kubwa FO1
District Layout where the Claimant's purported plot of land is situate
came into existence in 2005; that the Claimant knew about the existence
of Major Gardens as a place of relaxation and recreation long before
he came to live in the area; that since the allocation of the land to his
Company and the subsequent approval and designation as a Park and
Green Area by FCTA’s Department of Park and Recreation, the Park is
used only for the intended purpose and not any unlawful purpose as
alleged; that Major Gardens and every shop therein are governed by
the"Garden Association, Landlord and Management 2012 Ordinance"which
is an agreement reached with the Police in Kubwa District to regulate
activities in the Park and prohibit any form of unlawful or criminal acts;
that the Park is a regulated premises frequently supervised by the Police
and other security agencies as well as public agencies and departments
of Bwari Area Council and the FCT to periodically visit, review, update
and renew the operational licences of tenants or shop owners in the
Garden; that the regular and periodic scrutiny over the years since the
establishment of the Garden would have established any illicit or
unlawful activities being carried on at the Garden as alleged by the
Claimant; that smoking of cannabis (Indian hemp), stealing, fighting,
harbouring of criminals, keeping of dangerous weapons and playing of
loud music are highly prohibited under the Ordinance and attract serious
sanctions including prosecution;that himself as Landlord, the
chairperson/representative of shop owners, the officer-in-charge of Dutse
Alhaji Out Station who oversees the area and others endorsed the
prohibition of the acts for the security of lives and property and general
welfare of operators and patrons of the Garden; that Claimant alleged
allocation for residential purposes cannot take precedence over or

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 supersede his company's allocation for multi-functional use (Park and
Green Area) within Kubwa Extension 111B Layout which was created and
allocated prior to the emergence of the Claimant's Kubwa FO1 Layout
and does not form part of Kubwa FO1 Layout for whatever purposes it
was created or allotted; that people reside next to churches, mosques,
hotels, filling stations, parks, business premises, night clubs, market places,
hospitals, police stations, motor parks, etc., yet they live in peace and
harmony with their neighbours notwithstanding the purposes of each
allocation; that the Claimant is a land grabber looking for all means to
dispossess his company's land; that since the Claimant’s arrival in 2016,
he has continued to foment malice, trouble and disharmony in the hitherto
peaceful and lively neighbourhood and subjected him to all forms of
intimidation, suffering, hardship and outrageous harassmentby instituting
a multiplicity of actions against him including the suit before Kekemeke, J.
for declaration of title to land, another one at Gwagwalada High Court
and this present one; that even after filing these various suits in court, the
Claimant has continued to take laws into his hands by intimidating and
harassing the Defendants and his company's workers through frequent
invites by officials of Abuja Environmental Protection Agencies and other
unknown persons under the guise of abating nuisance; and that the
present suit is frivolous, vexatious, spurious, and gold digging and should
be dismissed with heavy cost for lacking merit.

9. The 2ndDefendant [DW1] deposed in his further witness statement of

5/12/18 that no part of Major Gardens, including the 1st Defendant’s
restaurant/bear parlour, is used for smoking of Indian Hemp or illicit
drugs, playing of loud music or engaging in prostitution which are illegal
acts prohibited under the Ordinance agreed to and signed by all
operators; that the Defendants are responsible married men with family
who do not smoke Indian Hemp or illicit drugs or engage in prostitution

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 and will not condone such unlawful acts to ruin the business from which
they make their living; that the referenceto half-naked girls dancing
and/or people smoking Indian Hemp has no connection whatsoever with
Major Gardens which is not a night club where loud music and club girls
flourish, but a respectable relaxation spot which attracts responsible men
and women and can boast of assorted drinks and wine, good and
delicious foods, pepper soup, fried, cooked or roasted chicken, assorted
fish and meat taken under a cool garden atmosphere, and most times
hosting entertainment programmes or soccer to watch on television; that
allowing the alleged illegal activities would drive away good and
responsible customers from the Garden; that the 2nd Defendant subjoined
a counterclaim for declaration of title to land in the suit hurriedly
instituted by the Claimant which is currently pending before Hon. Justice
Kekemekewhen he learnt that the Zone 3 Zonal Police Command, upon
concluding investigation into his petition, absolved the 2nd Defendant of
any wrongdoing as he is duly licensed to own a pump action gun and the
police were concluding plans to arraign the Claimant in court for unlawful
possession of firearm; and that this action is an attempt by the Claimant
to portray the Defendants in bad light and chase them away from the
lawful business they have been engaged in long before he came to the
neighbourhood.

10. Under cross examination by Chukwuma Ozougwu, Esq. of counsel for the
Claimant, the 2nd Defendant [DW1] maintained that he has an office inthe
Garden but does not live there; that the Garden is about three hectares
but what is stated in his title document is one hectare; that he subdivided
the garden into different business outlets; and that he does not own/
operate any shop in the garden. He could not remember the exact
number of tenants in the garden, but maintained that about eighteen
tenants have left the garden owing to constant harassment; that the 1st

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 Defendant is both his kinsman and tenant but there is no written tenancy
agreement between them; that they have a taskforce that monitors
activities in the garden; and that the 1st Defendant is not operating the
shopas he was only put there to ward off encroachment. When asked
whether the 1st Defendant is not a beer-parlour owner, he stated that the
1st Defendant has a shop in the garden, but not the particular one the
Claimant is complaining about; that he gave the 1st Defendant that
particular shop to operate a Restaurant/Barbut owing to persistent
harassment from Barr. Maxwell Okpara, he is even afraid to go there;
and that the space was initially occupied by Mimido Bar who left because
she was threatened. The 2nd Defendant [DW1] rejected the suggestion
that he does not know what happens in the garden, particularly in
relation to the 1st Defendant given the size of the garden, and the fact
that he does not live there, insisting that the taskforce and security men
give him daily report. He stated that although his request for a Police
Post but was declined, the police patrols the Garden on a daily basis. He
equally rejected the suggestion that the 1st Defendant has been playing
loud music since the space was givento him, insisting that the 1st Defendant
only has a refrigeratorthere and the shop that plays music is right behind
Maxwell Opara’s house; and that he visits the garden at different times,
even 1.00 a.m. or 2.00 a.m. He stated that the 1st Defendant could not
have been entertaining customers because the shop is not operational;
that he is not aware that the previous occupant left because she was told
not to play music; that although other occupants of the Garden play music
to entertain their customers but they are a distance of about 300m away
from the Claimant’s residence; that although only his garden is captured
statutorily, there are other outlets claiming to be gardens; that he knew
all of his tenants and only the 1st Defendant shares fence with the
Claimant; and that the shop beside Maxwell Opara’s house is on his land
and the owner is his tenant, but the shop behindMaxwell Opara’s house is

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 not on his land, and the operator is also not his tenant. The 2nd Defendant
maintained that the garden operates from 4.00 p.m. to 10.00 p.m. daily,
including weekends; that he is a practical person who is always on
ground and visits the garden regularly; and that it is the other outlets that
play loud music and they have even complained to the police.

11. Re-examined by C. E. Okafor, Esq. of counsel for the Defendant, the 2nd
Defendant [DW1] maintained thathe does not quite know the operator of
the shop behind Maxwell Opara’s house, but his name is Samuel and he is
aware that Barr Maxwell Opara suedhim but they later settled.

Final Addresses and Issues for determination

12. At the close of plenary trial, the parties filed and exchanged final
addresses as enjoined by the Rules of this Court. When the matter came
up for adoption of written addresses on 12/9/19,C. E. Okafor, Esq. of
counsel for the Defendants adopted the Defendants’ final address and
reply on points of law dated 8/2/19 and 21/3/19 respectively and
urged the court to dismiss the Claimant’s claim in its entirety. The
Claimantand his counsel were absent, and the Claimant’s final
addressdated 13/3/19 was deemed to have been adopted pursuant to
Order 33 Rule 4 of the High Court of the Federal Capital Territory,
Abuja (Civil Procedure) Rules, 2018.

13. Two (2) issues are formulated on behalf of the Claimant as follows:

a. Whether the Claimant's landed property allocation, as against that

of the Defendants, was granted by the authority which by law in the
Federal Capital Territory is empowered to grant same and whether
the purpose of grant of the Claimant's landed property is for
residential purpose as against the Defendants' grant for public use?

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 b. Whether by the facts and evidence before the court, the Claimant
has made out a case for nuisance and to show that his quiet
enjoyment of his land has been interfered with by the Defendants?

14. On their part, the Defendants also identified two (2) issues for
determination as follows:

1. Whether the Kubwa F01 Layout is the cause of action in this suit to
warrant the Honourable Court making a determination in respect
thereof.

2. Whether the 1st and 2nd Defendants have been unreasonable in the
use of their own properties in any way as to constitute nuisance and
interference to the Claimant's quiet enjoyment of his property.

15. The foregoing are the issues distilled by the parties, which are not
markedly dissimilar. The straightforward question to be resolved is
whether the Claimant is entitled to the reliefs, sought which is a function of
whether he discharged the onus probandi cast upon him by [Link] law is
well settled that anyone who desires the court to give judgment as to any
legal right or liability must prove those facts by credible evidence, which
is nothing but proof legally presented at the trial on an issue. See
AKINTOLA v SOLANO (1986) 4 SC 141. Evidence is the basis of justice
and the rule of evidence is that he who asserts the positive must prove.
See OKAFOR v EZENWA [2003] 47 WRN 1 at 11 (per Uwaifo, JSC),
VULCAN GASES LIMITED v GESELLSCHAFT [2001] 26 WRN 1 at 59,
ABIODUN v ADEHIN (1962) 2 SCNLR 305 and MOROHUNFOLA v
KWARATECH [1990] 4 NWLR (PT. 145) 506. In a civil action such as the
present, the burden of proof rests on the party who would fail if no
evidence were adduced on either side. See NATIONAL BANK OF
NIGERIA LIMITED v U. C. HOLDINGS LIMITED [2004] 13 NWLR (PT. 891)
436 at 454 and UMEOJIAKO v EZENAMUO [1990] 1 NWLR (PT. 126)
253 at [Link] burden of proof rests upon him who asserts the

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 affirmative and not upon him who denies, since by the nature of things he
who denies a fact cannot produce any proof. The relevant Latinism is
‘incumbit probatio qui dicit non qui negat’. See IMANA v ROBINSON
(1974) 6 SC 83, ATTORNEY-GENERAL, BAYELSA STATE v ATTORNEY-
GENERAL, RIVERS STATE [2007] 1 MJSC 48 at 70, KATE ENTERPRISES LTD
v DAEWOO NIG. LTD [1985] 2 NWLR (PT.5) 116, ONYENGE & ORS v
EBERE 18 NSCQR (PT. II) 789 at 802, AROMOLARAN v KUPOLUYI [1994]
2 NWLR (PT. 325) 221, ARASE v ARASE (1981) 5 SC 33 at 37, ELEMO v
OMOLADE (1968) NMLR 259 at 361 and OSAWARU v EZEIRUKA (1978)
6-7 SC 135 at [Link] burden is not static but preponderates: the proof
or rebuttal of issues which arise in the course of proceedings may shift
from the Claimant to the defendant and vice versa as the matter
progresses. See OSAWARU v EZEIRUKA supra and ZUBAIRU v
MOHAMMED (2009) LPELR-5124 (CA). Also, where a party wishes the
court to believe in the existence of any particular fact, the burden of
proving that fact lies on that party. See generally ss.133 - 137 of the
Evidence Act, 2011. Against the backdrop of the foregoing, I will permit
myself to condense the issues distilled by the parties into a single
composite, all-embracing issue as follows:

Whether in the light of the pleadings and the evidence

adduced by the parties, the Claimant has discharged the
onus probandi cast upon him by law so as to be entitled to the
reliefs sought.

16. It is on the basis of the above sole issue that I shall proceed presently to
dispose of this matter, the facts of which are straightforward and by no
means complex or convoluted. As stated hereinbefore, the parties filed
and exchanged written final addresses which were adopted by their
respective counsel, and I will refer to the submissions contained in the said
final addresses as I consider relevant or necessary.

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 Court’s decision
17. The reliefs sought and the evidence adduced by the parties are set out in
extenso hereinbefore. Reliefs (a) and (b) are declaratory in nature;relief
(c) is for an order directing the Defendants to abate nuisance; relief (d)is
injunctive; whilst Reliefs (e) and (f) are monetary claims. A declaration is a
solemn affirmation of a right or status by a court of law; one that seeks
the court’s pronouncement as to the status of a named matter, thing or
situation: ENEKWE v I. M. B. (NIG.) LTD [2007] ALL FWLR (PT. 349) 1053
at 1073]; a relief by which a claimant appeals to the court to pronounce
on an existing state of affairs in law in his favour as may be discernible
from the averments in the statement of claim:AKANDE v ADISA [2012] 15
NWLR (PT. 1324) 538 at 571. It is well ingrained in our adversarial
jurisprudence that declaratory reliefs are not granted as a matter of
cause or routine: it is entirely discretionary and in the exercise of the
court's equitable jurisdiction [see TEMILE & ORS v AWANI [2001] 5 MJSC
32 at 52 and MATANMI v DADA [2013] 7 NWLR (PT. 1353) 319 at 343],
and will only be made when the court is fully assured firstly, as to the
precise nature of the title or status in respect of which a declaration is
sought and secondly, that there is evidence by which the court is satisfied
that a title or status of the nature claimed has been established. See
ATUANYA v ONYEJEKWE (1975) All NLR (Reprint) 60 at 64 (per Ibekwe,
JSC) andOBAWOLE v COKER [1994] 5 NWLR (PT. 345)416(per Onu,
JSC).A declaration ought not to be vague or nebulous about what it
purports to declare: it must be clear and precise, and leave no one in
doubt about the right or status declared. SeeATTORNEY GENERAL,
LAGOS v ATTORNEY GENERAL, FEDERATION & ORS [2003] 7 MJSC 1 at
64. Also, the courts do not make a practice of granting declarations on
the basis of admission by the adversary or the weakness or absence of
the defence without hearing evidence and being satisfied with such
evidence, although the weakness of the defence may serve to strengthen

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 the claim in deserving circumstances. See BELLO v EWEKA (1981) 1 SC
101 at 102, AKANIWO v NSIRIM [2008] 9 NWLR (PT.1093) 439, UMESIE
v ONUAGULUCHI & ORS (1995) 9 NWLR (PT. 421) 515, ONOVO & ORS
v MBA & ORS (2014) 14 NWLR (PT. 1427) 391, OGOLO v OGOLO
[2006] 5 NWLR (PT. 972) 163, OKONKWO & ORS v. OKONKWO & ORS
(2010) 14 NWLR (PT. 1213) 228 andOMISORE v AREGBESOLA [2015]
15 NWLR (PT. 1482) 205 at pp 297-298 amongst a host of other cases.
The fortunes of an injunctive relief sought alongside a declaration are
almost invariably predicated on the success of the declaratory relief
because the grant of an injunction is consequential to a declaration of the
right or status claimed. See EMENIKE v PDP & ORS [2012] 12 NWLR (PT.
1315) 556.

18. The Claimant’s case is that whereas Cadastral Zone FO1, FCT, Kubwa,
Abuja is designated for residential purposes and he is entitled to quiet
and undisturbed enjoyment of his5-bedrom duplex at Plot
3627Cadastral Zone F01, FCT, Kubwa, Abuja where he resides with his
family since 2016, the activities of the Defendants at Major Garden
adjoining his property constitute nuisance and deploying the land for the
wrong use. In specific terms, the Claimant’s grouse is the “inordinate
attitude” of owners of beer parlours [inclusive of the 1st Defendant]
situate proximate to his residence who play loud music continuously
between the hours of 6:00 p.m. and 11:00 p.m. when he returns from
work but is prevented by the Defendants’ loud and irritating music from
having a deserved rest after a hard day’s work. The Claimant further
alleged that the Defendants’ loud and irritating music has attracted into
the neighbourhood hoodlums who have made the Defendant’s garden a
good meeting point for perpetrating evil and smoking of Indian Hemp
which produces stench that permeates the entire atmosphere of his
premises, thereby exposing him and his family members [including

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 children of between 3 and 9 years] who continuously inhale the smoke to
serious health hazards associated with second-hand smoking which is said
to be notoriously more dangerous and damaging to human health than
actual smoking; and that the Defendants have equally started using their
place as a commercial sex centre where young women of easy virtue
indulge in sexual acts and public exhibition of nudity to the discomfiture
of his household, including young children of between 3 and 9 years of
age. It is on the basis of the foregoing that the Claimant have alleged
nuisance on the part of the Defendants and claimed the reliefs set out
hereinbefore.

19. Now,the tort of nuisance is said to "cover a multitude of sins, great and
small". See SOUTHPORT CORP v ESSO PETROLEUM CO. LTD. (1954) 2
Q.B. 18 at 196 –per Denning, L.J. its essence is a condition or activity
which unduly interferes withthe use or enjoyment of land; conduct that
interferes with and/or obstructs the convenience and comfort of another
person in the use and enjoyment of land or a right attached to it.
SeeCHIEF P. U. EJOWHOMU v EDOK-ETER MANDILAS LIMITED (1986)
LPELR-1071(SC), ADEDIRAN v INTERLAND TRANS. LTD (1991) 11-12 SC
203 and Clerk & Lindsell on Torts (15th ed.) paras. 25-110 at p. 1140.
Nuisance entails“an unreasonable use by a man of his land to the detriment
of his neighbour":EHOLOR v IDAHOSA [1992] 2 NWLR (PT. 223) 323; an
act or omissionwhich constitutes an unreasonable interference with,
disturbance of, or annoyance to a person in the exercise or enjoyment of
a right: NWACHUKWU v EGBUCHU [1990] 3 NWLR (PT. 139) 435,
HUNTER v CANARY WHARF LTD (1997) A.C. 655 at 695 and GOLDMAN
v HARGRAVE (1967) 1 A.C. 645 at [Link] [whether public or
private] is an injury which confers on the person affected a right of
action. In certain circumstances, even an injury to the public may also
constitute injury to the individual but the burden lies on the individual to

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 establish his injury. Liability is necessarily a function of the legality or
otherwise of the acts complained of: the lawful act of the owner of
premises may yet constitute nuisance. See ABDULLAH v GOVERNOR OF
LAGOS STATE [1989] 1 NWLR (PT. 97) 356. In a claim for private
nuisance, the Defendant may not be found liable unless his act or conduct
is found to be unreasonable user of his own property, and to the
discomfort, annoyance or inconvenience to the Claimant or the
interference must be proved to be substantial. As Luxmoore, J. put it in
VANDERPART v MAYFAIR HOTEL CO. LTD(1930) 1 Ch. 138:

"Every person is entitled as against his neighbour to the comfortable and

healthy enjoyment of the premises occupied by him, and in deciding
whether, in any particular case, his right has been interfered with and a
nuisance thereby caused, it is necessary to determine, whether the act
complained of is an inconvenience materially interfering with the ordinary
physical discomfort of human existence, not merely according to elegant
or dainty modes and habits of living, but according to plain and sober
and simple notions obtaining among English people."

20. Where the alleged nuisance is a complaint of interference with the

claimant’s comfort or convenience in his use of land, liability is a function
of the degree of interference, and the court determines the
reasonableness vel nonof the defendant's user by undertaking a delicate
balancing of conflicting interests between the [Link] to the fact
that the activities complained of in most cases of private nuisance are
themselves perfectly lawful and only become actionable when
reasonable limits are exceeded, an intimate consideration of the peculiar
facts and circumstances of each case based on the principle of "give and
take, or live and let live"is [Link], discomfort is not measured by
the subjective standards of the claimant but by reference to the
standards of any ordinary person who might occupy the same property,
the law requires some form of corroborating evidence, whether oral or

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 documentary. See REGISTERED TRUSTEES OF THE LIVING BREAD
CHRISTIAN CENTRE v OLUBOBOKUN (2015) LPELR-41821(CA), [2017] 1
NWLR (PT. 1545) 1. Where the claim is laid for loss of amenity, as by
noxious fumes, noise and the like, proof of substantial injury [such as the
sensible diminution of comfort according to the modern notions of
ordinary comfort of existence] is required. See HELlOS TOWER LTD v
BELLO [2017] 3 NWLR (PT. 1551) 93 at 121.

21. The Claimanthas invited this court in relief (a)to declare that Cadastral
Zone F01is designated as a residential area and the plots of land therein
must be used for the said purpose only. But this relief is problematic on
many fronts. First, the point must be made that this isnot an action for
declaration of title to land. Thus, the Claimant’s contention that the
Defendant’s title [which is designated for recreational purposes] is invalid
because the Honourable Minister sub-delegated his powers to the Zonal
Manager at Bwari Area Council who signed the Conveyance of
Provisional Approval in Exhibit D5 designating the same area called
Cadastral Zone FO1 as Kubwa Extension 111B Layout contrary to the
principle of delegatus non protest delegare, citing NNPC v TRINITY MILLS
INS. BROKERS [2003] 9 NWLR (PT. 825) 38,OKORO v DELTA STEEL CO.
LTD [1990] 2 NWLR (PT. 130) 8, HELY-HUTCHINSON v BRAYHEAD LTD &
ANOR (1967) 3 ALL E.R. 98 and MADU v MADU [2008] 6 NWLR (PT.
1083) 296[on the proposition that no one can acquire land in the FCT
without a grant by the Honourable Minister], as well as the Defendants’
insistence that the entirety of F01 Layout [inclusive of the Claimant’s title]
has since been revoked, are outside the scope of these proceedings. The
reference made by the Defendant to a Ministerial Harmonization Report
contained in a Memo to the FCT Minister recommending the revocation of
254 Plots in Kubwa FO1 Layout including the Claimant's Plot 3627 owing
to overlap with Kubwa Extension 111 FCDA Layout [which Report was not

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 produced in evidence] is neither here nor [Link] is hardly necessary to
point out that pleadings occupy a preeminent position and pride of place
in adversarial proceedings commenced by way of writ of summons: the
canvass and/or contours of a civil suit are delimited by the pleadings
filed and exchanged, even as it is well settled that the parties as well as
the court are bound by the pleadings. See OVERSEAS CONSTRUCTION
LIMITED v CREEK ENTERPRISES LIMITED [1985] 3 NWLR (PT. 13) 407 at
419 –per Oputa, JSC) andAMIDA& ORS v OSHOBOJA (1984) 7 SC 68 at
107 –per Aniagolu, JSC.

22. Second, whereas the Claimant both pleaded and deposed that ‘the 1st
Defendant operates within Cadastral Zone FO1, FCT, Abuja an illegal
Beer Parlour leased to him by the 2nd Defendant’, his testimonial evidence
not only negates this assertion but is also at cross purposes withthe
declaration he seeks. The Claimant conceded under cross examination
that the 2nd Defendant’s property [i.e. Major Garden] is not situate within
F01 Layout to the best of his knowledge, and that he did not know the
number plots in F01 Layout. He equally did not produce any other
documents of title in respect of F01 Layout apart from his own title
documents. Although the Claimant insisted that his house is for residential
purposes in FO1 Layout, he nevertheless conceded that F01 Layout is a
large expanse of land comprising of schools, etc. which is not a residential
purpose even though there are teachers’ quarters; and that he did not
know the purpose of allocation of the 2nd Defendant’s land which is a
large expanse of land but he is only concerned with the part being used
as a park/garden comprising of about two or three plots. I reckon that
the Claimant’s concession that the Defendants’ land is not situate within
F01 Layout and that he does not know the purpose for which the land
was granted to the 2nd Defendant negates his assertion that the 2nd
Defendant’s land was being used for an illegal purpose. Exhibit D5 is a

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 conveyance of provisional approval dated 15/5/2001 showing that
Dutse-Gbagi Cooperative Society was granted “Plot No. Park 1 of about
1.0HA sq.m in Kubwa Ext. IIIB Layout” for multi-functional purpose for a
term of 99 years. The Claimant exhibited audacity of hope in seeking a
declaration that F01 layout is designated for residential purposes on the
strength of his title documents alone, but his self-indicting evidence
obviously sounds the death knell on the declaration he seeks. As stated
hereinbefore, a declaration ought not to be vague or nebulous about
what it purports to declare; rather, it must be clear and precise, and
leave no one in doubt about the right or status declared. SeeATTORNEY
GENERAL, LAGOS v ATTORNEY GENERAL, FEDERATION & ORS supra.

23. Relief (b)is for a “declaration of the Honourable Court that the actions of
the Defendants in consistently playing loud music in their Bear Parlour right
behind the Claimant’s residence at Plot 3627 Cadastral Zone FO1 amounts
to nuisance and are condemnable and wrongful”,whilst relief dprays for
“an order of perpetual injunction restraining the Defendants whether acting
by himself or through his agents, privies or any other person from further
engaging in playing loud music to the irritation of the Claimant and/or
harbouring all manner of hoodlums who have converted the beer
parlourbehind the Claimant’s residence into an Indian hemp smoking
centre”.What can be gleaned from the above reliefs isthat the Claimant is
not concerned about the generality of goings-on at Major Garden per se.
Rather, the Claimant’s grouse relates to the beer parlour right behind his
residence. But it does not seem to me that there is any clear cut evidence
before the court showingthat the Defendants are the owners/operators of
thebeer parlour directly behind the Claimant’s residence or that they are
otherwise responsible for the activities complained. Whereas the
Claimant conceded that the Defendants’ land is not situate within F01

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 layout and that he did not know the purpose of allocation of the 2nd
Defendant's land which is being used as a park/garden, the DW1 [2nd
Defendant] was emphatic that he leased the shop beside the Claimant’s
residence to the 1st Defendant who is his kinsman in order to ward off
encroachment and that no music is being played in the said shop by the
1st Defendant who has only a refrigerator there, but the shop behind the
Claimant’s residence which usually plays music is not part of his land and
the operator is also not his tenant. The DW1 was neither discredited nor
shaken under cross examination, and it seems to me, on a balance of
probabilities, that the Claimant did not succeed in showing that the
Defendants on record are responsible for the activities complained of.
This is a major snag which is fatal to the Claimant’s case, for if the
Defendants are neither the owners nor operators of the beer parlour
right behind the Claimant’s residence where loud music is allegedly being
played consistently and/or which hoodlums being allegedly harboured
thereat have converted it to an Indian hemp smoking centre, then the
obvious implication is that proper parties who ought to be sued are not
even before the court; and that takes the wind out of the Claimant’s
sails. The law is well settled that a claimant is bound by the reliefs he
formulated and brought to court and the court is not at liberty to suo motu
amend or alter reliefs sought with a view to granting him remedy at all
costs. SeeOLATUNJI v OWENA BANK OF NIGERIA [2002] 15 NWLR (PT.
790) 272 at 291 and AKPABUYO LOCAL GOVERNMENT v DUKE [2001]
7 NWLR (PT. 713) 557 at 573.

24. What is more, even if it is assumed arguendo that the Claimant succeeded
in demonstrating that the Defendants’ are responsible for playing loud
music to his irritation in the beer parlour right behind his residence for

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 which he seeks the declaration aforesaid, it still does not seem to me that
he has discharged the required onus probandi in a case of this nature. The
point has already been made that in order to establish liability in private
nuisance, it is necessary to determine whether the act complained of is an
inconvenience materially interfering with the ordinary physical discomfort
of human existence but not elegant or dainty modes and habits of living;
and that the determination of the question of discomfort is not measured
by the subjective standards of the claimant, but by reference to the
standards of any ordinary person who might occupy the claimant’s
property, hence the law requires some corroborating evidence other than
the mere ipse dixit of the claimant in order to maintain the required
delicate balance or equilibrium. See REGISTERED TRUSTEES OF THE
LIVING BREAD CHRISTIAN CENTRE v [Link] what
appears in rather bold relief in the case at hand is that no scintilla of
corroborating evidence [whether oral or documentary] was adduced
before me. There is no evidence whatsoever from neighbours,
environmental regulatory bodies [such as AEPB, Bwari Local Government
Council, etc], or even the various formations of the Police and other
security agencies to which the Claimant allegedly complained of the
Defendants’ activities before initiating this action in court.

25. It also cannot escape notice that there is gaping absence of credible
evidence on the level of noise produced by the music being played in the
shop right behind the Claimant’s residence to assist the court make a
determination on the reasonableness vel non of the activities complained
of. Crucially, there is no medical evidence of the health hazards or other
injury suffered by the Claimant and members of his family as a result of
the activities complained of. The point to underscore here is that save for

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 a few torts that are actionable per se [notably libel and trespass to
person/property], proof of injury is essential to a cause of action in tort.
The learned authors of Clerk & Lindsell on Torts (16thed.) opined at p. 64
para. 1-102 that “[i]n nuisance where the claim is laid for loss of amenity,
as by noxious fumes, noise and the like, it is necessary to show substantial
injury, such as the sensible diminution of comfort according to the modern
notions of ordinary comfort of existence”; even as the Court of Appeal
held in HELIOS TOWER LIMITED v MR. ISIAKA BELLO & ANOR [2017] 3
NWLR (PT. 1551) 93 at 123 (per B. M. Ugo, JCA) that injury to health, or
annoyance or discomfort of the claimant and members of his household
must be proved by concrete evidence and cannot be a matter of
speculation. But notwithstanding that the Defendants joined issues with the
Claimant by denying that he suffered or is likely to suffer any such
injuries on account of goings-on in Major Garden, the Claimant [who is a
lawyer and not a medical professional] merely treated this court to his
bare unsubstantiated testimony that the stench of Indian hemp emanating
from the Defendants’ garden has exposed him and his family members to
health risks associated with second hand smoking which is allegedly more
injurious to human health than actual smoking, which falls steeply below
the quality of evidence required to establish a case of nuisance. Okafor,
Esq. of counsel for the Defendants is therefore on firma terra in
contending that the Claimant failed to lead credible evidence to show
what level of noise is permissible in a commercial area such as a garden
as well as how he and his family have suffered substantially from the
nuisance complained of.

26. This case shares marked similarity with the fact pattern in THE
REGISTERED TRUSTEES OF THE LIVING BREAD CHRISTIAN CENTRE v COL.

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 S. T. OLUBOBOKUN (RTD) supra. The appellant's church is situate on a
land contiguous to that of the respondent, and the respondent [qua
Claimant] claimed that noise pollution emanating from the activities of the
Church, including night vigils and night musical practice, interfered with
the quiet enjoyment of his property and constituted nuisance. The central
issue to be resolved was whether the noise generated by the activities of
the church exceeded permissible levels as to interfere with the
respondent's quiet enjoyment of his land. The Court of Appeal reversed
the judgment of the trial court on the ground that respondent failed to
prove that the degree of interference complained of was substantial and
unreasonable.

27. Thus, from whatever perspective this matter is looked at, the conclusion is
inescapable that the Claimant did not succeed in his gallant efforts at
establishing that the Defendants’ activities constitute nuisance for which he
is entitled to judicial remedy against them. His claim fails in its entirety
and the same will be and is hereby dismissed.

28. There shall be no order as to costs.

_________________________________
PETER O. AFFEN
Honourable Judge

Counsel:
Chukwuma Ozougwu, Esq. (with him: Blessing Isaac, Esq.) for the Claimant.
C. E. Okafor, Esq. for the Defendants.

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