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MERIOGUN DADSON OGBE
V.
SAM WARRI ESI AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
27TH DAY OF APRIL, 1943
LEX (1943) – WACA PP. 76 – 77
OTHER CITATION(S)
2PLR/1943/48 (WACA)
(1943) IX WACA PP. 76 – 77
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
PAUL, C.J., SIERRA LEONE
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BETWEEN:
MERIOGUN DADSON OGBE — Plaintiff-Respondent
AND
1. SAM WARRI ESI
2. AYIWE — Defendants-Appellants
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REPRESENTATION
J. I. C. Taylor — for Appellants
E. O. Moore — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Trespass to land — Proof of — Relevant considerations — Injunctive reliefs relating to land — When would be deemed inapplicable
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PRACTICE AND PROCEDURE ISSUE(S)
JUDGMENT AND ORDER:- Injunction — Injunction granted though not claimed — Injunction in wide terms.
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CASE SUMMARY
Appellants were sued by respondent in two actions which were consolidated. In one action respondent claimed damages for trespass committed on certain laud, and in the other he claimed damages for another trespass committed on a piece of land forming an enclave in the first land hut not affected by the former acts of trespass, and an injunction to restrain appellants from entering the enclave.
Evidence was given of acts of trespass in the enclave and at two places in the land outside the enclave. The trial Judge gave damages for the trespass in the enclave and for the trespass at one of the places outside it, but considered that the evidence that respondent was in possession of the land at the other place was not strong enough to enable him to maintain trespass. He also gave two injunctions, one to restrain appellants from entering the enclave, and the other to restrain them from entering the whole of the land without the consent of third parties in whom the evidence showed the land outside the enclave was vested.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held:
1. No justification for granting the second injunction; appeal allowed as regards the second injunction, and judgment of trial Court varied by deleting the grant thereof.
(Note.— For the grant of equitable relief which has not been claimed, but the right to which appears incidentally in the proceedings, see Protectorate Courts’ Ordinance, No. 45 of 1933, section 15 (Nigeria). Protectorate Courts’ Rules, No. 5 of 1934, Order X, rule 2 (Nigeria), the Supreme Court of Judicature Act, 1873 (36 & 37 Viet., c. 66) section 24 sub-section (4), the notes in the Annual Practice to section 40 of the Supreme Court of Judicature (Consolidation) Act, 1925 (15 & 16 Geo. 5, c. 49), and Reigh v. Shaw, 5 W.A.C.A. 16.
2. The right to equitable relief was not proved here: Karama v. Aselewi, 4 W.A.C.A. 150.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE
There is no substance in this appeal so for as it concerns the two awards of damages for trespass. Nor do we see any reason for interfering with the first injunction granted, except to make a slight alteration as will appear later.
But the second injunction granted was not asked for by the plaintiff and it is in very wide terms, we see no justification for granting it.
The appeal is dismissed as regards the two awards of damages and the first injunction granted, but it is ordered that for the words, letters and figures therein appearing
“bounded by the points X1, X2, X3 and X4”
there be substituted the words, letters and figures
“bounded on the East by the river and on the North, West and South by straight lines joining the points X2, X1, X3 and X4 “.
The appeal is allowed as regards the second injunction granted and it is ordered that judgment of the Court below be varied by deleting the grant of the second injunction.
The order of the Court below as to costs stands good.
As each party has been partly successful in this Court there will be no order as to costs in this Court.