3PLR – KUFEJI V. KOGBE

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]

 KUFEJI

V.

KOGBE

SUIT NO. LD/6/1961;

[1961] ANLR 122

3PLR/1961/70

 

OTHER CITATIONS

 

 

BEFORE:

COKER, J.

COUNSELS:

Odunjo for Plaintiff.

Coker for Defendant.

 

MAIN ISSUES

LAND LAW/REAL ESTATE: Declaration of title to land –

PRACTICE AND PROCEDURE: Interim injunction with respect to land – Relevant considerations – Application of the principle of id certum est quod certum reddi potest

MAIN JUDGMENT

COKER, J. —

This is an application on behalf of the plaintiff for an Order “for an interim injunction restraining the defendant from continuing the erection of the building on the land the subject matter of this action.” The application is supported by the affidavit of the plaintiff to the effect that he had been m possession of the land in dispute between the parties since 1984 and had erected a shed thereon, but that sometime in October 1960, the defendant entered upon the said land, destroyed the shed and commenced the erection of a building on the land and has since continued with that building in spite of several protests from the plaintiff. No counter—affidavit was filed by or on behalf of the defendant.

At the hearing counsel on behalf of the plaintiff, relying upon the facts in the affidavit, submitted the plaintiff was not interested in the type of building at present being erected by the defendant on the land and that neither of the parties would be prejudiced if things were allowed to remain as they are until the end of the case.

Learned counsel on behalf of the defendant submitted that this application should be dismissed inasmuch as pleadings have not yet been filed in order to ascertain the issues to be tried and also that no plan of the land in dispute is on record. Counsel submitted, relying on the case of Karama, etc., v. Aselemi 4 WA.C.A.150, that it is necessary that the land upon which an injunction is supposed to operate should be properly ascertained and delimited before the order was made.

I am satisfied in this case and at this stage that the identity of the land cannot by itself be a bar to the issue of an injunction by way of interlocutory order; it is correct that pleadings have not yet been filed but it is also clear that an order for pleadings had already been made. The claim of the plaintiff is for a declaration of title “to a piece of land situate, lying and being at AYILARA STREET, SURULERE” and for possession of the land and damages for trespass. The averments in the counter—affidavit are not controverted. In an application for interim relief by way of injunction it is not necessary that a plaintiff or applicant should make out a case as he would do on the merits, it being sufficient that he should establish that there is a substantial issue to be tried at the hearing, see: per Cotton, L.J.; in Preston v. Luck (1884) 27 Ch. D 497 at page 506. The case of Karama, etc., v. Aselemi (1938) 4 WA.C.A. 150 referred to by counsel for the defence refers to a perpetual injunction and not to one by way of interlocutory order. In this case the applicant maintained that he was dispossessed by the defendant, who is indeed proceeding to alter the condition of the land. In the interests of justice and as the applicant has stated that he is not interested in the type of building now being erected on the land by the defendant, I take the view that the present status quo must be maintained until the determination of this case. In the interests of the defendant himself it is advisable that the issue of title be resolved, and that in his favour, before he continues with the expenditure of large amounts of money in developing the land.

 

It is clear from the facts available at present that there is no difficulty about the identity of the land upon which this interim order is supposed to operate. The writ of summons describes the land generally and facts on the affidavit describe the land not only generally but also as the land upon which the defendant is at present erecting a building. The maxim of the law is id certum est quod certum reddi potest and I am satisfied that the defendant knows or ought to know the land to which this order which is now sought must be attached. I will therefore allow this application.

 

I order on this application that pending the determination of this suit neither the plaintiff nor the defendant should erect or continue with the erection of any building, of any type whatsoever, on the said land the subject matter of this action, and on which the defendant is at present building.

 

I order that the defendant do pay the costs of this application which I fix at four guineas.

 

Interim Injunction granted.

 

error: Our Content is protected!! Contact us to get the resources...
Subscribe!