Godwin Ichu & Anor. V. Chief Nnaemeka Ibezue & Ors. (1998)
LawGlobal-Hub Lead Judgment Report
AKPABIO, J.C.A.
This is an appeal against a ruling or Amaizu, J. of the High Court of Anambra State of Nigeria, holden at Onitsha in suit No.0/608/95 delivered on 26/9/96, wherein he granted an application for an interlocutory injunction restraining the defendants from erecting any building or structure on the land in dispute, pending determination of the substantive suit. There was no order as to costs.
In the substantive suits, the claim of the plaintiff against the 1st – 12th defendants were as follows:-
Claim
- The plaintiff who acquired the traditional title of Onowu of Obosi, is the oldest living member of Umuotiokpili Head of the said Umuotiokpili family.
- The 1st to 10th defendants are members of Umuotiokpili family, while the 11th and 12th defendants are strangers to the said Umuotiokpili family. The 1st to 12th defendants reside at Obosi within the jurisdiction of the court.
- The land, the subject-matter of this action, is situate at Obosi in Idemili Local Government Area, and is variously known and referred to as “Umuru” and/or “Ugbonoene” land. The land is the bonafide property of Umuotiokpili family in Ire village, Obosi.
On or about the month of August 1995, the 1st to 10th defendants without the consent and authority of the plaintiff purported to grant, transfer for consideration portions of Umuotiokpili family land to the 11th and 12th defendants.
Whereof the plaintiff claims against the defendant jointly and severally as follows:-
(1) A declaration that the sale or transfer of portions of Umuotiokpili family land in dispute to the 11th and 12th defendants by the 1st to 10th defendants without the consent, knowledge and authority of the plaintiff is null and void ab initio and of no effect whatsoever.
(2) An order of this court in the alternative setting aside the purported sale/transfer of portions of Umuotiokpili family land to the 11th and 12th defendants.
(3) Perpetual injunction restraining the defendants by themselves, their servants, agents and/or privies from (further) granting, leasing, mortgaging, alienating the said Umuotiokpili family land or any part thereof without the consent, knowledge and authority of the plaintiff.
(4) N50,000.00 (fifty thousand naira) damages for trespass against the defendants.”
Soon after filing the claim on 29/9/95. the plaintiff on the 16/11/95 filed a motion on notice under Order 17 rule 1 of the High Court Rule 1988 fixed for hearing on Monday, 27th November, 1995, for the following interlocutory relief.
“Take notice that this Honourable Court will be moved on Monday the 27th day of November, 1995 at the hour of 9 o clock in the forenoon or so soon thereafter as the plaintiff/applicant m counsel on his behalf can be heard praying the court for an order of Interlocutory Injunction restraining the defendants. their servants, agents and privies from erecting any structure or structures, building or buildings by whatever name called on the land in dispute in this suit known as Umuru or Ugbongene land pending the determination of the substantive suit now pending before the court.
And for such further order or other orders as this honourable court may deem fit to make.”
Affidavit, counter-affidavits and several further affidavits and counter-affidavit were filed for and against the motion, at the end of which the matter was argued before Amaizu. J. On 26th Sept., 1996, the learned trial Judge came out with a 7 – paged reserved ruling in which he found in favour of the plaintiff/applicant and granted the interim injunction sought in the following terms:
“The respondents, their servants, agents and privies are hereby restrained from erecting any structure, or structures, building or buildings by whatever name called on the land in dispute in this suit known as Umuru or Ugbongene land pending the determination of the substantive suit now pending before the court.”
The 11th and 12th defendants were dissatisfied with the above ruling, and so appealed to this court while the 1st to 10 defendants did not appeal. The 11th and 12th defendants med three grounds of appeal from which the following two issues for determination were formulated –
“Issues for determination
The appellants submit the following issues as arising for determination in this appeal:
(1) Was the learned trial Judge right to have made an order for interlocutory injunction in this case when there was no (or sufficient) description of the boundaries or extent of the land over which the said order of interlocutory injunction is to operate’?
(2) In all the facts and circumstances of this case, was the plaintiff/respondent who had made default in filing his pleadings entitled to the order of interlocutory injunction which the learned trial Judge made in his favour?.”?
The 11th and 12th defendants will herein after be referred to as the appellants. The plaintiff in whose favour the ruling was delivered also filed a brief in which two issues were formulated as follows:-
The respondents submit the following issues for determination, all of which are distilled from the grounds of appeal.
“1. Whether or not on the facts of the case the learned trial Judge was right in granting the injunction sought in absence of a plan.
- Whether a default in filing pleadings constitute a contempt of court, or amounts to a reprehensible conduct barring a party from obtaining an order of interlocutory injunction.”
The plaintiff will hereinafter be referred to as the respondent.
Surprisingly the 1st to 10th defendants who did not support the application or the ruling of the learned trial Judge, and so should have been appellants, but did not appeal, turned up in this court and filed a brief which they called ‘2nd -11th respondents’ brief. It is our law that ‘A brief filed by a defendant who did not oppose a ruling at the trial court, and did not also file any appeal, but turned out to complain about the ruling in the Court of Appeal is incompetent and uncalled for as the said defendants were not parties to the appeal the brief should accordingly be struck out”
(see Nwarie v. Amauwa (1991) 8 NWLR (Pt.207) 68 at 81 per Kolawole, J.C.A.)In view of the fact that the defendants were all sued together “jointly and severally”, and the application for interlocutory injunction, was also brought against all of them, jointly and severally, and the order of the learned trial Judge was made against all the 12 defendants, without exception, all the defendants should have been ‘appellants’ in this case and none should have been a respondent.
An appellant is one who opposes the ruling or judgment of a court, whilst a respondent is one who supports it.
In view of the foregoing the brief filed on behalf of the 1st-10th defendants as “2nd – 11th respondents” by Chief (Dr.) F. Ejike O. Ume. SAN is declared to be incompetent, and is hereby struck out. I shall now proceed to consider the merit of this appeal based on the briefs filed by the other parties.
Of the two issues formulated by the parties, I should say that only the 1st one concerning the absence of a plan in an application for interim injunction is pertinent. The other issue concerning non-filing of pleading by a plaintiff within time, was a purely diversionary tactics used by the defendants to obstruct the plaintiff/applicant. The learned trial judge rightly overruled it, and proceeded to hear the application before him. For purely academic interest, I should state that under our law, it is not an act of contempt of court, for a party to fail to file his pleading or other process within the time given by the court or prescribed by the rules. It simply means that the party in default must apply for extension of time within which to do the act complained of. If no such extension of time was applied for and granted it would mean that the act done or process filed would be a nullity and the court will have no jurisdiction to entertain it. It will be liable to be struck out as incompetent.
I now go to the main issue for determination in this appeal namely:-
“Whether the learned trial Judge was right to have made an order for interlocutory injunction in this case when there was no (or sufficient) description of the boundaries or extent of the land over which the said order of interlocutory injunction was to operates”
Arguing this appeal, it was pointed out on behalf of the appellants that in the course of arguing his motion for interlocutory injunction, the plaintiff/respondent found it necessary to file four “further affidavit” in addition to his original affidavit in support of his application. But in none of the said further affidavits did the plaintiff/respondent deem it necessary to exhibit a survey plan of the land over which he sought an injunction or to otherwise describe its boundaries or extent by reference to its features, boundary men or by any other means. Yet it was well known to the learned trial Judge that in such an application, a survey plan should have been filed, because the learned trial Judge himself in his ruling correctly stated the law as follows:-
“…. it is the law that an interlocutory injunction can only be granted when the boundaries of the land in dispute are ascertainable and well known and properly well described. see Alhaji Elias v. Omo Bare (1982) 5 SC 25 at 54.”
The learned counsel for appellants also cited the case of Andrew Nwose & Anor v. E.O. Mbaekwe & anor (1973) 3 ECSLR (Pt.1) 136 in support.It was also pointed out that the plaintiff/respondent in one of his ”further affidavits” exhibited certain photographs of uncompleted houses which he said were being erected on the land in dispute by the appellants. But they the appellants in their further counter-affidavit denied ever erecting such a building or even being able to locate the environment involved. It was then submitted that in a situation such as this a survey plan would have been the ideal means of resolving whether the uncompleted houses were on the land in dispute or not.
Finally it was submitted that the learned trial Judge did not, in any part of his ruling, find that the plaintiff sufficiently described the land over which he sought an injunction to make same easily identifiable. As the ruling now stands the appellants stand exposed to the danger of being committed for contempt of an imprecise order of court. The court was therefore urged to allow this appeal, and set aside the orders of the trial court.
In response to the above the learned Senior Advocate Ezeuku. S.A.N .. referred to a newspaper publication which was exhibited to one of the affidavits of the respondent as Exbt. A, at the court below, to show that the land in dispute was the family land of respondent’s family which was known as and called “Umuru or Ugbongene.”
It was then submitted that the 1st – 10th defendants (alias 2nd – 11th respondents) did not deny making any grant of any part of Umuru or Ugbongene land of Umotiokpili. The order made by the learned trial Judge only commanded them not to build any structure on the land.
Finally, it was submitted that on the facts of this case the land in dispute was very well known to all the parties, and a plan ceases to be a sine qua non. The case of Opara v. Ihejirika (1990) 6 NWLR (Pt.156) 291 at 303, decided by the Court of Appeal, per Kolawole, J .C.A, was cited as authority in support The court was therefore urged to dismiss this appeal.
I have carefully considered all the facts of this case, as well as the legal arguments of learned counsel on both sides and find that even the learned trial Judge by citing the case of Alhaji Elias v. Omo Bare (1982) 5 SC 25 at 54, conceded that “it is the law that an interlocutory injunction can only be granted when the boundaries of the land in dispute are ascertainable and well known and properly well described.”
He however considered that the present case was an exception to the general rule without stating what made it to be so. I have however undertaken to do some research myself, and found as follows:
In Darko v. Agyakwa (IX WACA 163) the West African Court or Appeal found that there was need for a plaintiff in land cases to file a survey plan so as to identify boundaries of land in dispute with certainty. But in Kwadzu v. Adjei x W.A.C.A. 274. the same court held that
“Identity of land in dispute can be established either by a survey plan or by describing the land in dispute in his pleading in such a clear manner that a surveyor could from it draw an accurate survey plan”
The above view has been taken by the Supreme Court of Nigeria, in virtually hundreds of land cases in which there have been claims for injunction.
Perhaps only two illustrations may suffice as follows:-
(1) The case of Nwoke v. Okere (1994) 5 NWLR (Pt. 343) 159, and (2) Anabaronye v. Nelson Nwakoihe (1997) 1 NWLR (Pt.482) 374. In the case of Nwoke v. Okere (supra) where the facts were self-explanatory, the Supreme Court held as follows:-
“On what plaintiff claiming declaration of title to land must show-
It is settled law that it is the duty of a plaintiff who comes to court to seek decree of declaration of title to land and an injunction to show to the court clearly and accurately the area of land to which his or her claim relates and usually (though not always), a plan which must also show clearly the dimensions of the land, the boundaries and other salient features thereof is necessary for the purpose.In the instant case the two plans Exhibits A and B tendered by the respondents and the appellants showed that the identity of the land in dispute was clear and certain. The essential features on the respondents’ plan Exhibit A. were never specifically put in issue on the pleadings by the appellants. The identity and precise boundaries of the land claimed by the respondents were fully established before the trial court. Therefore the Court of Appeal was right when it held that the respondents’ plan, Exhibit A showed a well defined land mass with precise features to which the respondents’ claim may be attached(Elias v. Omo-bare (1982) 5 SC 25, Arabe v. Asanlu (1980) 5-7 SC 78. Etim v. Oyo(1978) 6-7 SC 91 Udofia v. Afia (1940) 6 WACA 216; Agbonifo v. Aiwereoba (1988) 1 NWLR (pt.70) 325; Olusanmi v. Oshasona (1992) 6 NWLR (Pt.245) 22 at 36; Awote v. Owodunni (No.2) (1987) 2 NWLR (pt.57) 366 at 371; Ezeokeke v. Uga (1962) 2 SCNLR 199; Makanjuola v. Balogun (1989) 3 NWLR (pt.108) 192 referred to (p.174, paras. D-H) per BELGORE, J.S.C. at page 173, paras D0H:”
In the second-mentioned case. i.e Aanabaronye v. Nwakaihe (supra) the court also held as follows at p. 381 –
“On need to define the portions of laud trespassed upon –
In an action for trespass, the portion of the land trespassed upon must be clearly defined. Such portion or portions on which the alleged trespass was committed has to be clearly shown on the survey plan, (Elias v. Omo-Bare, (1982) 5 SC 25 referred to).
The sum total of the above is that in any suit in which an injunction is being claimed in a land suit, be it perpetual interlocutory or interim, a survey plan must either be filed, or the boundaries of the land described in such a way that a surveyor could with reasonable certainty draw a plan from it. The necessity for a survey plan or accurate description of the land is necessary, not so much for the commencement of the transaction, but at the end when there is a breach of the injunction. E.g. in the case of Andrew Nwose & anor v. E.O. Mbaekwe 7 anor (1973) 3 ECSLR (Pt.1) 136 cited in appellant brief. Opute J. (as he then was) stated the basis for the necessity of a survey plan as follows:-
“But even where the parties themselves may be in a position to identify the land in dispute, it is also necessary in case there happens to be a breach of the order, that the area should be easily identifiable by the court.”
From the foregoing it will be seen that the existence of a survey plan in any claim for injunction, whether perpetual or interlocutory is not something cosmetic, but an absolute necessity; so that if the event or a breach of the injunction, the offender will be unable to say, as the appellant in this case has been saying already, that the land he entered was different from that which the court restrained him from entering.Since there was no survey plan filed with the application for interlocutory injunction in this case, and there was also no description of the boundaries of the said land, other than giving the names of the place, which were not sufficient, the application of the respondent should have been refused and either struck out or dismissed. It was premature to have filed the application for interlocutory injunction when the survey plan was not yet ready. Incidentally, it appears from the records that on 26/9/96, the very day on which the ruling herein was delivered, another application by the respondent herein was granted for –
“(1) an order extending the time for the plaintiff/applicant to file his statement of claim and plan.
(2) an order deeming the statement of claim and plan hereto attached as properly filed and served, the necessary fees having been paid.
(Italics mine)
The question ‘now arises, if the respondent (who was then the plaintiff) found it necessary to wait and file a survey plan with his statement of claim, why could he not wait and do the same with his application for interlocutory injunction?
A survey plan does the same job in a substantive suit as in an application for interlocutory injunction.
In view of the foregoing, this appeal succeeds and is hereby allowed with costs of N3,000.00 (three thousand naira) in favour of the appellants. The interlocutory injunction granted against the appellants is hereby set aside.
Other Citations: (1998)LCN/0384(CA)
