Chief Yesufu A. Oniru & Anor v. Wahahi A. Gbadamosi (1971)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C

By a writ issued in the High Court of Lagos on 30th May, 1969, the plaintiff now respondent claimed from the defendants now appellants.

(i) The possession of all that piece or parcel of land known as plot No. H.14 at Maroko village, Lagos;

(ii) The sum of 100 as general damages for trespass; and

(iii) An injunction restraining the defendants, their servants or agents from committing any further trespass on the said piece or parcel of land.

Pleadings were ordered on 16th June, 1969, the plaintiff to file his statement of claim within 30 days and the defendants to file their defence within 30 days thereafter. Before the statement of claim had been filed, however, the plaintiff on 24th June, 1969, applied to the court by motion for an order restraining the defendants from continuing any building operation on the plot of land in dispute. He also asked for any other order or orders which the court might deem it fit to make in the circumstances.

The motion was supported by an affidavit, paragraphs two to five of which read:

“(2) That the defendants/respondents have started to erect a building on plot No. H.14 Maroko village which is the property in dispute in this action.

(3) That during the last one week, they have intensified the building operation which has now got to above three feet from the ground level.

(4) That the building that is being erected is not in conformity to my own plans and it will be necessary for me to pull the building down if I am awarded possession in this suit.

(5) That their continuing with their building operations will make it unduly hard on me if I am eventually victorious in this suit.”

The defendants filed no counter-affidavit. Nevertheless, at the hearing of the application on 7th July, 1969, Mr. Phillips for the defendants opposed it on the ground that the plaintiff had not made out a prima facie case for an interlocutory injunction.

The learned trial judge, however, ruled as follows:

“In my view this application should be granted. There is no counter affidavit. I would grant the application and order as follows: