3PLR – OLUSHOLA AINA V. P.O. IKUSEDUN
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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OLUSHOLA AINA
V.
P.O. IKUSEDUN
HIGH COURT LAGOS STATE
MARCH 3, 1972
(SUIT LD/482/71)
3PLR/1972/12 (HC)
BEFORE:
Kassim J
REPRESENTATION
Sofola for the plaintiff /applicant.
Lardner for the defendant/ respondent.
MAIN ISSUES
Foreshore land in Lagos Dispute between two adjoining licensees-Restrictions imposed by city authorities on licensees pending settlement of disputes-One licensee erecting structures on piece allotted to another-Objection by adjoining licensee-Action for declaration of title, trespass and injunction and possession -Application for interim injunction under High Court of Lagos Rules, Ord. 21, rr. 1 and 4.
MAIN JUDGMENT
KASSIM J.: This is a motion brought under Order 21, rules 1 and 4 of the High Court of Lagos Rules for an interim injunction against the defendant, his servants, and/or agents from erecting his structure on the portion of foreshore land at the rear of Nos. 6 and 8 Okobaba Street, Ebute Meta, the subject-matter of the substantive action or suit pending its determination.
The claims of the plaintiff against the defendant are for (a) declaration of title to the land in question, (b) £200 damages for trespass, (c) injunction, and (d) possession of the said land.
In support of the application, the plaintiff /applicant deposed in an affidavit, inter alia, that he and the defendant are temporary occupation licensees of the Lagos State Ministry of Works and Planning, Lands Division, that certain dispute has arisen between the licence holders at the foreshore at Ebute Meta which dispute the Permanent Secretary of the Ministry of Works and Planning is yet to settle, that the defendant has started to erect structures on a certain portion of land covered by the licence of the plaintiff /applicant who has spent a large sum of money to develop this portion, and that much hardship and financial loss will be suffered by him if the defendant is not stopped from further acts of trespass.
The defendant/respondent deposed in a counter-affidavit that he has not erected any structures on any land in respect of which the plaintiff has a temporary occupation licence; that the plaintiff does not now hold a temporary occupation licence in respect of any land at the foreshore at the rear of Nos. 6 and 8 Okobaba Street, Ebute-Meta or anywhere else; that the plaintiff’s writ of summons is misconceived on the facts as he has no right, title, and/or interest in respect of any land at the foreshore and that he, the defendant/ respondent, has not erected any structure of any kind at the foreshore since the Ministry of Works and Planning wrote to him and the plaintiff /applicant in March 1971 as follows:
“ Re: Boundary Dispute at Okobaba Foreshore, Ebute Meta. I am directed to refer to the meeting held on Thursday 18th February, 1971 at Okobaba Foreshore, Ebute Meta, regarding the re-alignment of boundaries of the foreshore plots allocated to Mr. Ikusedun, Madam Salako, Dr. Aina and Messrs. Fiedment (Nig) Co. Ltd. respectively, and to say that the subsequent re-alignment exercise undertaken by officials of this Ministry is merely a temporary settlement designed to ease the tension between the disputing licensees. In this regard, all licensees concerned are hereby advised in their own interest not to erect any structures (other than those already in existence) on the land in question until a final settlement has been reached and licences renewed for the current year.
Pending the final settlement, all parties affected by the re-alignment exercise are also hereby warned not to do or suffer to be done any acts which may cause a nuisance or annoyance to adjoining licensees or which may constitute a breach of the peace.”
He also said that he and the applicant were previously adjoining holders of temporary occupation licences in respect of land at the foreshore, but that he, the respondent, is the owner in fee simple of a plot of land facing Okobaba Street, Ebute-Meta, his said temporary occupation licences being in respect of land facing the lagoon at the back of the plot, and that his title to his freehold is registered as Title No. M00284 in the Register of Titles at the Land Registry, Lagos.
The plaintiff /applicant filed a reply to the counter-affidavit of the defendant/respondent and deposed in it, inter alia, that on March 7, 1969, the Ministry wrote a letter enjoining all licensees at Ebute-Metta foreshore to erect wire fences or other continuous boundary structure on their lands in order to prevent encroachment by adjoining occupiers. He said also that he therefore used beacons or concrete pillars to demarcate the boundary between him and the defendant/respondent, as shown in a survey plan which is attached to the affidavit and marked exhibit “ E “; that his temporary occupation licence has not expired, nor has it been revoked or curtailed since he holds a Revenue Collectors receipt No. 534065 of February 18, 1971 (exhibit “ F “) in respect of the land at the rear of Nos. 6 and 8 Okobaba Street, Ebute-Meta, and that exhibit “ G “ is a picture showing the defendant’s preparation to erect structures on the land in dispute.
On September 8, 1971, the defendant/ respondent deposed in a further counter-affidavit, inter alia, that the plaintiff in erecting pillars went beyond his portion of the land and thereby encroached on his own portion; that both the respondent’s surveyor and that of the plaintiff advised the plaintiff to remove his pillars and that the plaintiff obeyed; that the present pillars demarcating the boundary between the applicant and the respondent were erected by the Ministry of Works and Planning; that the receipt exhibit “ F “ attached to the applicant’s reply to the respondent’s counter-affidavit is and can only be in respect of the area at the back of plots 6 and 8 as distinct from the respondent’s portion whose licence has never been revoked or curtailed; that as a result of the dispute between the parties to this action, the Permanent Secretary to the Ministry interviewed them on May 4, 1971, and on May 11, 1971, wrote them the following letter:
“ Re-alignment of boundaries of foreshore plots at Okobaba, Lagos
With reference to a meeting held in this office on Tuesday 4th May, 1971, in connection with the above, I am directed to forward herewith a copy of the sketch plan showing the re-aligned boundaries of your plan verged RED in pencil.
Please endeavour to keep strictly within your boundaries in order to avoid any re-occurrence of over-lapping boundaries.”
and that, in the light of the sketch plan referred to in the letter, the plan marked exhibit “ E “ and attached to the reply of the plaintiff/ applicant to the respondent’s counter-affidavit becomes irrelevant.
Now, section 37 of the State Lands Act (cap. 45), Vol. 2, Laws of Nigeria empowers the Minister (now the Commissioner) to make regulations for, inter alia, “prescribing the period for which and the conditions under which licences for the temporary occupation of State land may be issued.”
By the State Lands (temporary occupation) Regulations licences for the temporary occupation of State lands in the Colony and Southern Provinces of the Protectorate may be issued by the Chief Federal Land Officer or the Resident in charge of Provinces for a period not exceeding 12 months; all such licences shall expire on the date mentioned therein, unless surrendered or sooner determined under Regulation 5 which states the conditions to which licences shall be subject. Regulation 6 states that a licence for the temporary occupation of State land shall be in the form in the Schedule or to the like effect. A perusal of the form shows clearly that none of the parties to this application has produced the temporary occupation licences on which he relies. They have rather placed before me mere official receipts which were issued to them by “ Revenue Collectors” who took money from them for licences which appear never to have been issued.
I agree with Mr. Lardner who submitted, on behalf of the defendant/ respondent, that an applicant for injunction to restrain his adversary from trespassing on land which he claims must, first of all, show the court precisely the identity of the land; and, in this connection, it is important to note that the Schedule to the regulations provides for insertion in the licence of the area or description of the land by referring to plan if such exists, or, if no plan, by giving an identifying description. Moreover, I agree with Mr. Lardner that nothing is edged red in the plan on exhibit “ A “ which was attached by the applicant to his reply to the respondent’s counter-affidavit, and that the dimensions there are 150 ft. by 6 ft. while his exhibit “ E,” by its scale which is 100 ft. to 1 inch, reflects a very much bigger area of land.
An important point to which none of the parties to this application has adverted is that in view of the State Lands Act and the aforementioned regulation, the Chief Federal Land Officer is an interested person and, therefore, ought to have been joined both in the suit and in this application under Order 4 Rule 5 (1) of the High Court of Lagos Rules.
For the reasons which I have stated above, I dismiss the application with costs to the defendant/ respondent assessed at £5 5s.
Application dismissed.
