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14-Storey Bank Sructure Unlawful – Braithwaite

By on March 4, 2013

LAGOS lawyer and politician, Dr. Tunji Braithwaite, has declared as illegal the 14-storey building and five-level car park being constructed close to his residence on Victoria Island by the Standard Chartered Bank of Nigeria Limited.

Braithwaite’s declaration is contained in a 34-paragraph affidavit deposed to on his behalf by Ismaila Shaib Usman and filed before a Lagos High Court, Igbosere.

The affidavit is in support of his amended pleadings, in which he sought the order of court to stop the commercial bank from constructing the building in a residential area.

He averred that the development permit, which the defendant purportedly obtained from the state government authorising a mixed development in the area, was invalid and unlawful.

According to Usman, “the claimant further avers categorically and puts the defendant to the strictest proof otherwise that the building approval/development permit allegedly obtained by it is unlawful, invalid, null and void, having been procured without compliance with the requirements of the law.”

At the trial, he added, he would prove that the underlying processes and relevant procedural preconditions to applying for and obtaining requisite development permit were not met by the defendant. He, therefore, insisted that the purported change of user obtained by the defendant for the purpose of erecting the structure was totally unlawful.

Braithwaite said he would rely on the evidence of building experts, who undertook an environmental impact audit of the building and turned in a damning report.

According to him, “the claimant, sometime in December 2012, commissioned a team of renowned international scholars and experienced architects, physical planners, urban designers, landscape architects, to undertake a thorough Environmental Impact Audit (EIA) of the defendant’s building vis a vis its immediate environment, with particular reference to claimant’s residence.

“The report of the EIA, prepared and submitted by Urbach Tropical Designs (Architects, Physical Planners, Urban Designers, Landscape Architects, consultants), represented by Prof. Olaniyi Samuel Okedele, Dr. Adejumo Tunji and Wilkey Oladipupo, is hereby pleaded and shall be relied upon at the trial, and the evidence to be given by these experts shall also include the use of electronic devices i.e. computer video recording and projector, notice of which is hereby given.”

Also, Prof. Okedele, in his witness’ statement on oath, swore that their findings included, but were not limited to the adverse impacts of the defendant’s multi-level premises on the claimant’s residential property, particularly in the area of solar rights, air quality, noise vibration, wind and weather.

“There are other serious negative environmental impacts in our report, which we shall demonstrate by electronic videos and projector at the trial of this matter,” the statement read.

The trial judge, Doris Okuwobi, had earlier granted the claimant, who had already opened his testimony, leave to amend his pleadings.

The court will now hear the amended applications on April 8. Then led in examination by the defendant’s counsel, Adeniyi Adegbonmire, Braithwaite informed the court that he filed the suit when the defendant was about to commence the proposed building, adding that the defendant had built the structure, which is the subject matter of the suit, up to the 8th floor at present.

Braithwaite is seeking a declaration that the construction of a 14-storey building at No.142, Ahmadu Bello Way, Victoria Island, and a five-level car park at Plot 141 Elias Close, Victoria Island, by the bank is unlawful and damaging to his rights. He is also seeking a perpetual injunction restraining the bank or its agents from using or causing or permitting to be used for any purpose other than residential, the said site.

The claimant is demanding N10 billion as general damages for nuisance caused due to the noise and pollution of the bank’s giant electric generating sets, which led to his great discomfort over the period of 10 years. Besides, he asked for interest at the rate of 21 per cent till final judgment.

In his statement of claim, he averred that the proposed building, if erected, would substantially affect the amenities’ value of his residence in terms of availability of air, as well as create constant noise pollution, thereby breaching the general peace and quiet of the neighbourhood.

The claimant also swore that every plan for development of the various sites suitable for building along the said Elias Close was designed and approved for High Class Residential purposes only. The claimant maintained that the proposed 14-storey building and five-level car park would infringe upon his fundamental right to access to light.

The applicant commenced the action on October 4, 2010, at the Lagos High Court. On November 24, 2010, Justice Adesuyi Olateru-Olagbegi made an order of preservation of status quo until the next date of adjournment, which was December 21, 2010. But before that date, the defendants appealed the decision at the Court of Appeal.

As a result, the applicant filed for an extension of the order but the court dismissed it on account of the pending appeal. Consequently, the claimant filed his own appeal against the dismissal of the extension application at the Court of Appeal.

In its ruling, a panel of justices of the Court of Appeal, Lagos Division, led by John Inyang Okoro, ordered the trial court to transmit the application filed by Dr. Braithwaite seeking to extend the period of the interlocutory injunction, which restrained the bank from continuing with construction at the proposed site to Court of Appeal.

In the judgment, which was unanimously adopted by two other justices, Justice Kumai Akaahs (presiding) and Justice Muhammed Ambu-Usi Danjuma, the appellate court held that the trial court was wrong when it dismissed the application.

In his lead judgment, Justice Okoro held that the proper order to have been made by the lower court was to either strike out the application for lack of jurisdiction or order it to be transmitted to the Court of Appeal.

The court, however, refused the appellant’s request for a preservative order pending the hearing and determination of the suit at the lower court in order to “prevent a chaotic occurrence in the process of hearing the defendant’s appeal, which was still pending at the Appeal Court.

That notwithstanding, the defendant also filed notice of appeal to the Supreme Court against the decision of the Court of Appeal ordering the lower court to transmit the claimant’s restraining application to the Appeal Court.

But the claimant, in seeking to stop further construction on the site, is insisting that it will not serve the interest of justice if the res is being tampered with and completed while the substantial suit subsists and yet to be determined.

However, the bank contended in its defence that the trial court lacks jurisdiction on Braithwaite’s claim because the claimant has failed to fulfill the condition precedent to invoking the action. It also denied that it would constitute any nuisance to the claimant.

It further contended that the action and its further prosecution are frivolous, vexatious and an abuse of the solemn process of the court and, therefore, urged the court to dismiss it.

The bank averred that the Lagos State government reserved the power and authority, acting by itself or through its ministries, parastatals or agencies, to designate/zone all areas within the state as residential, commercial and/or mixed uses.