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ISHMAEL EMEGWARA AND OTHERS
V.
NOAH NWAIMO AND OTHERS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
15TH DAY OF OCTOBER, 1953
2PLR/1953/27 (WACA)
OTHER CITATION(S)
2PLR/1953/27 (WACA)
(1953) XIV WACA PP. 347-349
LEX (1953) – XIV WACA 347-349
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BEFORE THEIR LORDSHIPS:
VERITY, C.J., NIGERIA
COUSSEY, J.A.
JIBOWU, J.
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BETWEEN:
1. ISHMAEL EMEGWARA
2. GABRIEL UGOJI
3. STEPHEN NWAIWU
4. ISAIAH UKAEGBU
5. DAVID UGWUALA
6. DICK WORU OF UMUOVO
ON BEHALF OF THEMSELVES AND AS REPRESENTING THE PEOPLE OF UMUOVO, OWERRINTA – Appellants
AND
1. NOAH NWAIMO
2. UFOMBA AHUNANYA
3. JOHN WABIWE OF UMUOBU
FOR THEMSELVES AND ON BEHALF OF THE CHIEFS AND PEOPLE OF UMUOBU – Respondents
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ORIGINATING COURT(S)
Appeal from the Supreme Court by defendants: W.A.C.A. No. 3679.
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REPRESENTATION
H. O. Davies, with Wachukwu — for Appellants
Udo Udoma — for Respondents
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ISSUE(S) FROM THE CAUSE9S) OF ACTION
REAL ESTATE AND PROPERTY:– Trespass – Claim for injunction – Claim for declaration of title – Title not alleged with precision and no evidence of precise title given – Legal effect
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CASE SUMMARY
The respondents as plaintiffs obtained a declaration of title to an area of land, damages for trespass, and an appropriate injunction, against the appellants as defendants. The evidence left no doubt that the plaintiffs were entitled to exclusive and undisturbed possession and that the defendants entered wrongfully and committed trespass.
As regards the declaration of title, the claim in the writ of summons was for “titular ownership”: the statement of claim hesitated between allegations of original ownership and acquisition of title “several generations ago” by grant
from the defendants’ predecessors in title; such a grant was said by plaintiffs’ counsel in the appeal to be the real basis of their claim. At the trial there was no evidence as to the precise terms of the grant on which a specific claim could be based. The defendants appealed.
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CASE SUMMARY
Held (varying the Judgment of Court below) that:
(1) (on the injunction): As the plaintiffs were entitled to exclusive and undisturbed possession and the defendants had committed trespass, the defendants should, until such time as they established by lawful process that the plaintiffs had forfeited their right of occupation, be restrained from further trespass.
(2) (on the declaration of title): The nature of the right claimed by the plaintiffs was not specified, nor was there any evidence on the precise terms of the grant upon which any such specific claim could be based; it was therefore a mistake to grant the plaintiffs a declaration of title.
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MAIN JUDGMENT
The following Judgment was delivered:
VERITY, C. J., NIGERIA.
This is an appeal from a judgment of the Supreme Court in which the respondents obtained a declaration of title to certain land, £10 damages against each of the six appellants and an injunction restraining the appellants, their servants or agents from any further interference with the land in dispute.
Although there is some difference of view as to the description of the land and its identification by name, there is no doubt upon the evidence that the respondents, who were the plaintiffs in this action, are entitled to exclusive and undisturbed possession of a certain area of land delineated in a plan exhibited in evidence (exhibit “C”) and therein described as “Okpulo”. It is equally beyond doubt that the respondents were so entitled on the date of the alleged trespass and that the appellants wrongfully entered thereupon, removed pillars erected as boundary marks in pursuance of certain arbitration proceedings so long ago as 1928 and committed other acts of trespass.
Unless and until the appellants by lawful process succeed in establishing that the respondents have forfeited their right of occupation it is clear also that the appellants should be restrained from further trespass.
In regard, however to the respondents’ claim for a declaration of title I indicated in the course of the hearing of this appeal that I entertain the gravest doubts as. to whether any declaration should be made having regard to the statement of the respondents’ claim both in the endorsement on the summons and in the statement of claim subsequently filed and having regard also to the nature of the evidence in the case and to the statements made by counsel for the respondents in the course of the hearing of the appeal.
It is as well that it should always be borne in mind that the making of such a declaration is discretionary and in the exercise of the Court’s equitable jurisdiction. A declaration of title will only be made when the Court is fully assured first as to the precise nature of the title in respect of which a declaration is sought and secondly that there is evidence by which the Court is satisfied that a title of the nature claimed has been established.
In my view the case put forward by the respondents both at the trial and before us satisfies neither of these conditions. It is not clear from the pleadings nor from the evidence nor from the argument of counsel what precisely is the nature of the right or title in respect of which a declaration is sought. It is impossible therefore to hold that the evidence establishes any title at all which would justify the Court in making a declaration. The most that can be said is that by the endorsement upon the summons the respondents claimed “titular ownership”, a vague expression which may mean no more than nominal ownership. The statement of claim hesitates between allegations of absolute ownership from “time immemorial” which is, in my view, indistinguishable from original ownership, and the acquisition of title” several generations ago” by grant from the appellants’-predecessors in title, These allegations are inconsistent, but counsel assures us that it is the latter allegation which is the real basis of the respondents’ claim. It is beyond doubt that such grants may take many forms, ranging from an absolute gift to a mere tenancy or right of occupation subject to conditions. Lying between the two extremes there may be a grant of such complete user without payment of tribute or other term or condition that all that is reserved to the grantor is a right to reversion should the grantee abandon his right of occupation or succession to that right fail.
(It is essential before any declaration is made that the party seeking it should state specifically what is the nature of the right he claims and that he should prove that the terms of the grant under which he claims conferred such a right. Unless these two factors are present the Court cannot properly exercise its discretion in his favour and make any declaration.
Nowhere in the present case have I been able to find that the nature of the right is specified, nor have I been able to find evidence as to the precise terms of the grant upon which any such specific claim could be based. I cannot conceive that it is the duty of the Court to endeavour by examination of the evidence to deduce what ought to be or might be the true nature of the claim and then proceed to make a declaration which the plaintiff has not specifically sought and may not in fact desire. It would indeed be improper for the Court so to do unless it were prepared to order an amendment of the pleadings, in which case it would be necessary to give the defendant an opportunity of meeting what would be an entirely different case. Such a course if followed at all would only be followed with great reluctance and upon the clearest possible evidence.
In my view the learned Judge had before him neither a claim nor evidence which would justify him in making the declaration sought and he erred in making it. I would therefore vary the judgment in the Court below by deleting therefrom so much thereof as relates to the respondents’ claim for a declaration of title. I would, however, dismiss the appeal in so far as it relates to the judgment awarding damages for trespass and issuing an injunction restraining the appellants from further trespass. This should make it clear, and I desire to emphasise this, that the failure of the respondents in their claim for a declaration of title affects in no way their present right to exclusive and undisturbed possession of the land delineated in the plan to which I have referred and marked thereon as “Okpulo”. Whatever may be the precise nature of the grant or the terms upon which they are entitled to such occupation, it is clear that unless and until the appellants can by suit show that this right has been extinguished they have no right whatever to enter upon the land in disturbance thereof or at all.
There is one point to which no argument was addressed and which was not made the subject of appeal but in regard to which in my opinion the learned Judge erred in form if not in substance. The claim was against the appellants jointly and severally. For some reason which does not appear judgment was entered against each of the six defendants severally for £10 damages. I see nothing either in the pleadings or the evidence to justify this severance and distribution of the damages and would therefore vary the judgment of the Court below in this regard by substituting therefor a judgment in favour of the plaintiff against the defendants jointly and severally for £60 damages for trespass.
I would therefore direct that judgment in the Court below be entered:-
(a) Dismissing the plaintiffs’ claim for a declaration of title;
(b) in favour of the plaintiffs as against the defendants for £60 damages for trespass;
(c) granting an injunction restraining the defendants in the terms prayed by paragraph (3) of the endorsement upon the summons.
In regard to costs the respondents failed both here and in the Court below in regard to their claim for a declaration. I consider that they should recover no more than two-thirds of their costs in either Court, that is to say £35 in the Court below and £18 18s. 0d. on this appeal.
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COUSSEY, J. A.
I concur.
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JIBOWU, J.
I concur.
Judgment of Court below varied.
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