Nigeria: Right To Protection Of Property Vs. Right Of Way: A Contest For Priority

Last Updated: 26 January 2017
Article by Perchstone & Graeys

Introduction

Notwithstanding the current global financial meltdown, the Nigerian economy is developing. As with most developing economies, this growth brings along with it an increased, if uneven, level of affluence. This increase in the level of affluence, sadly, appears to have precipitated a rise in the rate of violent crime. In particular, crime in urban areas has reached unsettling levels with a near siege mentality being inflicted on ordinary citizens. It is so endemic that almost everyone can claim to have being a victim or know a victim of a violent crime. Whilst the Police continue to deploy their efforts, a desperate citizenry has had to resort to somewhat novel ideas for the protection of both themselves and their properties. One of such ideas has been the erection of community gates into most residential areas of Lagos State and indeed, in many other urban cities.

The modus operandi is simple enough; the gates operate as a physical control on the entry and exit of all persons into a designated area. Usually, private guards are engaged to man these gates. In most instances, these gates are locked between midnight till about dawn, daily. For the residents, they may be allowed entry or exit only after a protracted identification process. It is obvious that a potential conflict lurks close to the surface in this situation. This is despite the assumed benefit which gates confer. The horrendous traffic snarls in many parts of Lagos is not completely unrelated to the erection of these gates. Additionally, there are numerous anecdotal reports of delayed gate access having cost lives for those who needed to seek urgent medical attention in the middle of the night. This therefore begs the question as to what rights and limitations if any, do persons have to freely use such thoroughfares in view of the desire of others to barricade these routes, thereby restricting ingress and egress?

A Constitutional Perspective

The contest between the right to use such thoroughfares as referred to above and the communal initiatives geared at the protection of lives and property becomes more convoluted when one realises that there is a constitutional flavour to the legitimate exercise of both rights.

Section 33(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter referred to as the Constitution) provides amongst other things that a person is entitled to take lawful steps in defending his property.

On the other hand, section 41 of the Constitution generally provides that every citizen of Nigeria is "entitled to move freely throughout Nigeria".

The due reverence is attached to Chapter IV of the Constitution (on "Fundamental Rights") and for which Eso J.S.C. (as he then was) in Saude v. Abdullahi (1989) 4 NWLR. (Pt. 116) 367 lends credence to, when he stated:

"Fundamental Rights are important and they are not just mere rights. They are fundamental. They belong to the citizen. These rights have always existed even before orderliness prescribed rules for the manner they are to be sought."

So far, it is beyond question that: both rights are equally guaranteed and that a satisfactory answer to the question raised in the introduction may not be obtained merely from a perusal of the Constitution. We therefore propose to turn our attention to other aspects of the law; perhaps therein, shall lie our answer.

Right of Way

It is a given fact that thoroughfares such as highways, streets, roads, footpaths and sidewalks are public rights of way. A right of way or an easement as it is otherwise known, is a Common Law property right which confers a non-possessory interest to use real property in the possession of another person for a stated purpose. Simply put, it is a legal right of passage over another's property. A public right of way is therefore a right granted to the general public to travel on or make use of access ways.

In Nigeria generally, by implication of certain provisions of the Land Use Act, what we have are public roads/highways. Even if one proceeds to contend that a road is a private one, then he has the onerous burden of proving such assertion. In fact, the law as was espoused in Seismograph Service (Nig) Ltd. v. Eyuafe (1976) 1 F.N.L.R. 172 is that where the public has used a road for so long a time and the road has come to be looked upon as belonging to the public with the owner's acquiescence, a Court may regard it as evidence that the owner has offered it to the public.

Further on the issue of gates and barricades, some homeowner's have formed vigilante groups amongst themselves. The street goons too have taken a cue. These two groups have declared the protection of property and the security of the neighbourhood as the chief reason for their actions. In some cases these groups, particularly the latter, have been known to discourteously question and, on occasions; assault such road users who stand up to challenge their actions.

A case of Public Nuisance?

It can be argued that the act of erecting barricades or any type of obstruction to a public accessway constitutes an act of Public Nuisance. Clerk and Lindsell on Torts, 17th Edition describes Public Nuisance to wit:

"....Nuisance is an act or omission which is an interference with, disturbance of or annoyance to, a person in the exercise or enjoyment of (a) a right belonging to him as a member of the public...."

In the case of Obasa v. Savage (1931) 10 NLR 104 the Plaintiff widened an existing narrow road to make it fit for vehicular traffic, he then erected a gate across the entrance to the road to enable him collect tolls. The Defendants broke down the gate and the Plaintiff sued for damage for trespass. Butler Lloyd, J. held that the Plaintiff had neither the right to set up the barricade nor collect tolls on the road; hence, the Defendant had a right to abate the nuisance. It is submitted that where road users are harassed and their usage of roads for ingress and egress hindered, the action constitutes a Public Nuisance. It is further submitted that it is of no moment that the Obasa's case bordered on tolls; the substratum of the judgement was that the Plaintiff had no right whatsoever to obstruct access to a public road. At the expense of repetition, a Nuisance, in this context, is anything that annoys a person, interferes with or disturbs his right to enjoyment of a public right. Surely, when a person is being harassed, queried or irritatingly obstructed for exercising his right on the pretext that the right to security of another is ostensibly at stake, in the present context, the right of the former must take priority and an action in Nuisance may lie.

Criminal Liability

If one is still doubtful as to position of the law on the sanctity attached to the right of any person to move freely, the provision of section 38 of the Criminal Code, CAP C.38, Laws of the Federation of Nigeria, 2004 is instructive. The Code provides inter alia:

"Any person who obstructs any highway, by any erection thereon which renders the highway less commodious to the public than it would otherwise be; or does any act not warranted by law...which act or omission obstructs or causes inconvenience to the public in the exercise of rights common to the public is guilty of a misdemeanor and imprisonment for two years"

Most interestingly, the proviso to section 234 of the Criminal Code goes on to add that it is inconsequential that "the act complained of is convenient to a larger number of the public than it inconveniences", so the residents of the neighbourhood allegedly being protected are not at liberty to put up the defence that in a bid to protect their lives and properties, another's right can be trampled upon.

The scope and extent given to the term "highway" in a state legislation, to wit The Highways (Removal of Obstructions) Law, CAP. H5, Laws of Lagos State of Nigeria, 2003, complements our argument. Section 7(2) of the Law provides:

"highways" includes any street or any roadway, side-road, sideways adjacent to the highway or street to which the public have access or any market place or square or any open space under any bridge in Lagos State or any open space under any bridge in Lagos State..."

In summary the writer's position is that public roads/highways are for the public's passage and re-passage. Therefore, an interference with any part of a public road/highway constitutes nuisance. If this premise is correct, as it does appear to be, then an obstruction of such public roads and highways is actionable by an aggrieved person who can prove damage over and above that suffered by the public.

However at this juncture, the question may be posed: "Is Public Nuisance not actionable only at the instance of the Attorney-General?" Aderemi J.C.A. (as he then was) responds unequivocally in Total (Nig.) Plc v. V.I.I.R.A. (2004) 7 NWLR (pt 873), 465 that:

"any citizen who perceives that his right has been infringed can bring an action against ... anybody deriving some right or benefit from such act of infringement without obtaining the consent of the Attorney-General in order to obtain a redress of the violation of his rights".

Narrowing it down to issues bordering on Public Nuisance, his Lordship went on:

"the government has the fundamental duty to ward off any Public Nuisance. And where the government fails to act and the nuisance affects a citizen...the citizen has a right to bring an action to seek redress and make the Attorney-General, the number one Law Officer of the Government, a party in his suit."

Conclusion

The right of every citizen is sacred. But where one citizen in an unconscionable exercise of his own rights infringes on that of another citizen who is acting rightly within his rights, the latter shall take priority. In a similar vein, where a person's right to use a road freely is unfairly prejudiced by the acts of another, under the guise of exercising their right to protect themselves, the former's right shall take precedence. In fact, relying on the authority of Obasa v. Savage (supra) the person who has being wronged can take reasonable steps to abate the nuisance.

In the book "Law of Trespass to Land and Nuisance" the following statement is made:

"public highways...are deemed as dedicated for the purpose of passage and for other reasonable and usual mode of using it. Such reasonable user includes parking vehicles for a reasonably short period, or sitting by the road side to rest up a while..."

Indubitably, crime is on the increase in Nigeria, with criminals becoming more daring and equipped for their heinous business. Armed with the knowledge of these developments, it is prudent for the citizenry to take adequate steps to beef up the level of security in their neighbourhoods. In doing this however, they must ensure that the rights of others are adequately considered and respected.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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