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Nigeria: Right To Protection Of Property Vs. Right Of Way: A Contest For Priorit - Properties - Nairaland

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Nigeria: Right To Protection Of Property Vs. Right Of Way: A Contest For Priorit by Geomartinsurvey(m): 1:21pm On Jan 24, 2020
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.
(Excerpt from Mondaq article)

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.

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