Olusegun Rotimi & Ors. Vs F.o. Macgregor (1970)
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This is a matter in which, owing to its peculiar circumstances, we acceded to the request to dispense with compliance with the rules of this Court and heard the appeal on the papers before us.
These papers were agreed by the parties and they comprise the entire records relevant for the determination of the issues involved. The present appellants were the defendants to an action in which the plaintiff, now respondent before us, had asked for a declaration of title to “that piece or parcel of land situate, lying and being at Anifowoshe Village, Ikeja, Lagos State described in the plan to be filed in this suit”. The writ also contains endorsements for claims for damages in trespass and a perpetual injunction.
Some time after the filing of the writ and before an order for pleadings was made, the respondent applied to the High Court for “an order for an interim injunction restraining the defendants by themselves, their servants and/or agents or otherwise from further acts of trespass on and damage to the piece or parcel of land the subject-matter of this suit”. The application was supported by an affidavit the substantial and relevant sections of which are paragraphs 3, 5, 8 and 15 which read as follows:-
“(3) That my statement of claim with plan of the land forming the subjectmatter of this action has been duly filed and served within the time allowed by the High Court. A copy of the said statement of claim is attached herewith and marked A.
(5) That as a result of the matters referred to in paragraph 4 hereof, the case was listed for mention before the High Court on 19th May and hearing has been fixed for 17th and 19th September, 1970 being the date suggested by the defendants’ counsel, Chief Williams.
(8) That up till now, the defendants has defied the court order with impunity.
(15) That the plaintiff caused to be prepared building plans with a view to erecting a building on the said land after the said building plans were duly approved by the Ikeja Town Planning Authority.”
On the 20th April, 1970, Adefarasin, J. made the order, sought and further restrained the respondent herself “from continuing any further building on the said land”. He then, in the course of the same ruling, made an order for the filing and delivery of pleadings.
The appellants, dissatisfied with this ruling, have appealed to this court and the only point of substance canvassed on their behalf is that the judge was wrong to make the order of interim injunction when the identity of the land concerned was not ascertained or established. In the course of his rather detailed ruling, the learned trial judge undoubtedly directed himself properly concerning the principles governing the granting or refusal of order of interim injunction and before us no attempt has been made to attack his approach to the problem. The learned trial judge briefly directed himself thus:-
“The object of an order for an interlocutory injunction is to keep things in status quo, so that if at the trial the plaintiff obtains a judgement in his favour, the defendant will have been prevented from dealing in the meantime with the property in such a way as to make that judgement ineffectual.”
He then went on to summarise the arguments put forward on behalf of the appellants as follows:-
“The argument put forward by Chief Rotimi Williams on behalf of the defendants were that the plaintiff has failed to show any particulars of prima facie title and that no plans showing the identity of the land has been filed.”
The learned trial judge then proceeded to deal with the submissions of counsel in rather great detail and clearly adverted to the matters for consideration before an order for interim injunction is made as well as the submission that the precise area of dispute is not ascertained. The following passages appear in his ruling:-
“As I have already said, no plan of the land in question has been filed. The plaintiff however has stated on her writ that the land in question is at Anifooshe Village, Ikeja. . . . In the instant case the plaintiff has shown, prima facie, that she was in possession of the piece of land in question at the time the defendants invaded the premises. She has exhibited the photographs exhibits A, B, C, D and E which shows on the land (which she claims to be the one in dispute) a pile of concrete cement blocks, some arranged in an orderly manner and some disarranged and broke, a carpenters table which is damaged, close to a workmen’s shed which is also demolished and damaged completely; and soldiers and an army truck, six of the soldiers standing on the same land, one of them holding what appears to be a gun. Upon the evidence shown by the plaintiff in her affidavit, there can be no doubt that there is a controversy between the plaintiff and the defendants over a piece of land situate at Anifowoshe Village, Ikeja, on which the plaintiff’s workmen had been carrying out building operations which have now been interrupted and that further injury to the plaintiff’s interest in the land are threatened.”
Now, it is argued before us, as apparently it was argued before the learned trial judge, that the precise area encompassed by the order of injunction sought is not ascertained and that the order of injunction should not be made in those circumstances. It will be recalled that when the application for an interim injunction was brought and granted, pleadings had not been ordered or filed. The writ describes the land in dispute as being at Anifowoshe Village, Ikeja and states that a plan of it would be filed later. No such plan had been filed then and the question is whether the averments in the affidavits which we have earlier on in this judgement set out could establish the identity of the area of land on which the order of injunction was sought.
The learned trial judge in the course of his ruling took the view that the photographs exhibited by the respondents to her affidavit as exhibits A, B, C, D and E and the contents of those photographs could identify the land which the respondent has claimed to be the one in dispute. We are not in any doubt that this is a mistaken view of the legal position; and indeed comments such as appear in this matter are themselves suggestive that there was a need in every case to identify precisely the area of land over which an injunction is to operate.
In Oluwi v. Eniola (1967) N.M.L.R. 339, it was decided that an order of injunction was rightly refused inasmuch as the area of land in respect of which it was sought was not precisely defined. We see no reasons why a different and lower degree of identification should be required for purposes of an interim injunction since in both cases compliance consists in withdrawing oneself from the specific area of operation.
In the present case we are in agreement with learned counsel for the appellants that as the precise area of land to be litigated still had to be defined with any degree of precision at the time of the present application, the learned trial judge should not have granted the prayer since the order which was sought can only operate over a well-defined area or parcel of land.
The appeal will therefore be allowed and the ruling of Adefarasin, J. dated the 10th day of April, 1970, in Suit No. LD/192/70, including his order for costs, is set aside. It is ordered that the respondent’s motion dated the 1st April, 1970 be dismissed with costs and this shall be the order of the Court.
The respondent shall pay to the appellants the costs of this appeal fixed at 20 guineas as well as the costs of the appellants in the court below fixed at 5 guineas.
Other Citations: (1970) LPELR-SC.112/1970