3PLR – IYASERE V. DOGHOR

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

[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]

IYASERE

V.

DOGHOR

FEDERAL SUPREME COURT OF NIGERIA

20TH APRIL, 1959

F.S.C. 196/58

3PLR/1959/64 (SC)

BEFORE THEIR LORDSHIPS

MYLES JOHN ABBOTT, F.J. (Presided)

LIONEL BRETT, F.J.

LOUIS NWACHUKWU MBANEFO, F.J. (Read the Judgment of the Court)

BETWEEN

IYASERE (M) of Umolo (for himself and members of Asabakpor Family)

AND

1. DOGHOR (m) of Otu-Jeremi
2. ODIVBRI (m) of Owode

AND DOGHOR (m) IYASERE(m)

MAIN ISSUES

PRACTICE AND PROCEDURE – EQUITY- Injunction – Grant of – Limitation thereof

PRACTICE AND PROCEDURE – INJUNCTION – Grant of – Limitation.

REPRESENTATION:

Mr. H. A. Lardner – for Appellants.

Mr. Irikefe – for Respondent.

MAIN JUDGMENT

MBANEFO, F.J. (Delivering the Judgment of the Court):

This is an ap­peal against the judgment of Onyeama J. in two suits, W/27/55 and W/85/55, which were consolidated for the purpose of trial. In W/27/55 the Asabakpor family of Umolo represented by Iyasere were the plaintiffs, and the defen­dants were Doghor of Otu-Jeremi and Odivbri of Owode. The claim is for a declaration of title and damages for trespass and injunction to restrain further trespass on a piece of land called “OKU” by the plaintiffs.

In suit W/85/55 Doghor who was the first defendant in suit W/27/55 on behalf of the Omuvwie family of Ogbri Omu sued in a cross action the plain­tiffs in W/27/55 claiming title to a piece of land called “Olumuvwie,” dam­ages for trespass and injunction.

Each family filed a plan and an examination of the two plans shows that they cover substantially the same area of land.

The appellants (the Asabakpor family) are the plaintiffs in W/27/55 and defendants in W/85/55_ The respondents (the Omuvwie family) were their opponents in each case. The respondents in their statement of defence in suit W/27/55 pleaded estoppel per rem judicatam and although the cases had been consolidated by an order of the Court it was agreed that they should begin by establishing their estoppel. This they succeeded in doing and, on the 12th October, 1956, the Judge ruled in their favour and dismissed the ap­pellants’ claim in that suit. Thereafter trial proceeded only in respect of suit W/85/55 and, at the conclusion of the evidence, judgment was given award­ing to the respondents title to Otomuvwie land, as shown on Exhibit 5, £5 damages and injunction. It is against the judgments in the two cases that ap­pellants have appealed.

Altogether four grounds of appeal were filed, two of which (1 and g) were not argued. All the others were questions of fact and as none of them had any substance we did not think it necessary to call upon the respondents on any of the grounds filed.

In awarding the respondents title in suit W/85/55 the Judge relied on the respondent’s plan Exhibit 5. Although the appellants’ plan covers substan­tially the same area the boundaries of the land as shown on the two plans were not identical. It was unfortunate that the appellants’ plan was not superimposed on the respondents’ plan so that the exact boundaries on the east and south of the area on which they joined issues with the respondents could be seen on Exhibit 5.The eastern boundary of the land awarded to the respondents goes through the middle of the appellants’ town of Umolo. There are obviously many houses of the members of appellants’ family within the land awarded to the respondents. It is clear from a perusal of the records and on respondents’ counsel’s admission when questioned by the Court that in granting the injunction the Judge had not considered the rights of the owners of these houses to their respective sites. It seems to us that the injunction granted the respondents should not operate to deprive those members of the appellants’ family who have built within the area in dispute of the use of their houses which they have hitherto enjoyed: The trespass complained of was for entry on the land and planting yams, cassava and other crops and the operation of the injunction should in my view be limited to that. Subject to that variation of the Judge’s order the appeal of the appel­lants should be dismissed with costs assessed at £42.

ABBOTT, F.J.: I concur.

BRETT, F.J.: I concur.

Appeal Dismissed