Karama & Anor V. Aselemi & Ors (1938)
LawGlobal Hub Judgment Report – West African Court of Appeal
Consolidated actions seeking Declarations of Title to land and aninjunction—Declarations refused but injunction granted.
Held: Non-suits confirmed and injunction set . aside owing to uncertainty of area to which it applied.
There is no need to set out the facts.
C. TV. Clinton (J. C. Zizer with him) for Appellants. S. B. Rhodes for Respondents.
The following joint judgment was delivered:—
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST ANn WEBB, C.J., SIERRA LEONE.
These two consolidated suits are in respect of the same piece of land. In the first (0/10/1937) the trial Judge non-suited the plaintiffs-appellants. Although numbers 1 and 3 of the grounds of appeal are applicable to the judgment of non-suit, counsel for appellants made it clear, almost from the outset, that he did not ask this Court to set aside the non-suit in suit 0/10/1937.
The plaintiffs-respondents in the second consolidated action (0/11/1937) sought :—
- a declaration of title to a piece of land situate at Emilagan known as Adei Egula, the boundaries of which are given in the writ, and
- an injunction to restrain the defendants their successors, heirs and servants from any further interference with the said land.
The learned trial Judge found that Obudual, Odum Idek, Karama Etum Otu and Osiji Oju, part of the land in dispute, belonged to & anor. the plaintiff but as there was no plan to which a declaration of V. title to these lands could be attached he refused the application Aselemi for a declaration of title. & ors.
Notwithstanding this refusal to grant a declaration of title Kingdon, to the land in dispute or any part of it the trial Judge granted an C•J•, injunction in the terms of the writ to apply only to Obudual, Petri es,
Odum Idik, Edum Otu and Osiji Oju..J.,
and
It has been contended on behalf of the defendants-respondents Webb, C.J. to this action that this injunction was wrongly granted as the same
reasons as were given by the Court for refusing a declaration of title apply to an injunction and it would be impossible to enforce an injunction without a plan to indicate the land in respect of which the injunction could be tied or applied.
In Kerr on Injunction, 6th edition, p. 647, it is stated :—
” The terms of the order granting an injunction should ” be such that it is quite plain what it permits and what it ” prohibits. An order which merely prohibits a man from ” doing what he has no authority to do, without showing him
what are the limits of his authority, and leaves him to find ” out what is forbidden and what is allowed, is irregular.” In Cother v. Midland Railway Co., 41 English Reports Ch. p. 1025, Lord Chancellor Cottenham, in the course of his judgment dissolving an injunction granted by the Vice-Chancellor said ” I think the right should be declared, and ” the injunction founded upon such declaration that the order ” may inform the defendant what the opinion of the Court ” is as to the limits of his rights, and not expose him, in the ” exercise of such right, to the consequences of violating so ” vague an injunction.”
It is clear from the judgment that the trial Judge found it impossible to determine what were the boundaries of Obudual. Odum Idik, Edim Otu and Osiji Oju.
The following passage in his judgment shows this very Elearly :—
” From the stand point of granting to Emilagan a ” declaration of title to these parts of the property they ” claim, a declaration to which in my judgment they are on ” the evidence before me entitled, there arises the difficulty ” that none of these pieces of land is precisely marked on ” either plan. The names are there but no boundaries are ” indicated to show exactly what areas the names apply to.
The fact that formerly the land was the common land of ” the two villages as was stated by Aselemi of Emilagan in
” the 1918 (Exhibit G) and by plaintiff Karama at the present ” trial suggests the possibility that no definite boundaries to ” these various pieces of land have ever existed.”
The trial Judge having found, as apparently he did, that the land in dispute was formerly the common land of the two villages and there being no evidence that this common land had ever been partitioned it is difficult to understand how he could have found that Obudual, Odum Idik, Edim Otu and Osiji belong to the plaintiffs-appellants.
We consider that on the facts found by the learned trial Judge he was right in refusing to grant a declaration of title to any part of the land in dispute, not only because there was no plan to which a declaration of title could be attached or any other means of determining the boundaries of the piece of land in respect of which the plaintiffs claimed a declaration of title, but also because there was no evidence that the plaintiffs had acquired a title to any part thereof.
We think that for these reasons the trial Judge should have refused an injunction.
The judgment for a non-suit in action 0/10/1937 and the judgment for a non-suit in respect of a declaration in suit 0/11/1937 must stand but in respect of that part of the judgment in suit 0/11/1937 which grants an injunction the appeal is allowed, the order for an injunction is set aside and it is ordered that in respect of this claim also a non-suit be entered.
The order in regard to costs in the lower Court is set aside and it is ordered that in the lower Court both sides shall bear their own costs.
The appellant is awarded costs in this Court assessed at forty-five guineas.
