A. O. Ibenwelu Vs Lawal D.E. (1971)

LawGlobal-Hub Lead Judgment Report

MADARIKAN, J.S.C. 

In suit no. IK/44/64 in the Ikeja High Court, the appellant as plaintiff took out a writ of summons against the defendant (now respondent) claiming:

“(a) 500Pounds as general damages for the defendant’s trespass to the Plaintiff’s land, and

(b) An injunction restraining the defendant, his servants or agents, from further trespass to the said land.

(c) Possession.”

The plaintiff’s case on the pleadings was that in 1960, he bought a piece of land from one Latifu Akanbi Tiamiyu Durojaiye Ajia who executed a deed of conveyance in his favour on the 31st December, 1960 (exhibit A); that the said deed of conveyance was duly registered; that he was in peaceful and undisturbed possession of the land until 1963 when the defendant entered thereon; and that despite protests by the plaintiff, the defendant erected a fence wall and building on a portion of the land.

For his part, the defendant avers in his statement of defence that in 1959 he leased a piece of land from the Oba of Itire paying therefore an annual rent of 31Pounds and that “later when the civil proceedings between the Oba of Itire and the Durojaiye family of Itire ended, and the Durojaiye family won he was forced to purchase part of his leased land from one of the Durojaiye family, namely Latifu Tiamiyu Durojaiye because the court declared it to be Durojaiye family’s.”

At the trial, each party led evidence in support of his case and a composite plan showing clearly the relative positions of the 2 parcels of land each of which is approximately 50′ x 100′ was tendered in evidence and marked as exhibit B. In it, the land claimed by the plaintiff is edged red and abuts on a street parallel to Oyekanmi street; whilst the land claimed by the defendant is edged blue and abuts on Oyekanmi street. It would appear from exhibit B that the northern half of the plaintiff’s land and the southern half of the defendant’s land overlap, and the controversy in this case is in respect of this area which is edged green on exhibit B. It is relevant at this stage to point out that a portion of the building and wall fence erected by the defendant between 1962 and 1963 in the area edged blue on exhibit B falls within the land now in dispute, that is, the area edged green.

In a reserved judgment, the learned trial judge, after carefully considering the competing claims of the parties, came to the conclusion that the plaintiff is the owner of the land in dispute, and that the defendant trespassed on it in 1962 by erecting a building and wall fence. In regard to the claims for an injunction and possession, the learned judge commented as follows:

“What remains is for me to consider the claims for injunction and possession. It is often said that in claims for these reliefs the court must exercise great care. The balance of convenience must be carefully looked into. Also the court must consider whether the ends of justice would be properly met by granting an injunction or by awarding damages in lieu of injunction. The plaintiff has not erected any building on any portion of his land. What he has lost is the chance of erecting a building on the part trespassed upon by the defendant. Only about half of the defendant’s wall fence and building fall on the land in dispute. I am of the view that defendant was encouraged by Durojaiye and Asani to commit the acts which later turned out to be trespass on plaintiff’s land. In my respectful submission terms the plaintiff’s loss or damage can be estimated in terms of money.” and awarded 100 to the plaintiff as “general damages and damages in lieu of injunction and possession”.

In conclusion, the learned judge said: “To order injunction and possession in favour of plaintiff will work great hardship on defendant especially as there was no sufficient evidence of notice of objection to the defendant until 1964 when the acts of trespass by him had already been completed.”

The plaintiff has appealed against that judgment on the ground that: “The learned trial judge erred in law in awarding damages to the appellant in lieu of granting him an injunction and giving him possession since the appellant never claim damages as an alternative to his claim for an injunction and possession, and the decision did not meet the justice of the case.”

Before us, it was contended on behalf of the appellant that in as much as the defendant did not specifically plead any equitable defence, it was not open to the learned trial judge to award damages in lieu of the reliefs of injunction and possession sought by the plaintiff in his writ. Counsel further argued that the learned judge erred in law in making the award, and finally submitted that the award ought to be set aside and replaced by an order for injunction and possession.

In reply, Mr. Masha for the respondent contended that equitable defences were adequately pleaded in paragraph 7 of the statement of defence which reads as follows:

“The defendant will plead at the trial all legal and equitable defences open to him.”

It is trite law that all equitable defences must be pleaded fully and with due particularity. In our view, the defendant has failed to do this in paragraph 7 of the statement of defence, and we are therefore unable to accept Mr. Masha’s submission.

We shall now deal with the other points raised by the appellant’s counsel in this appeal. The golden rule is that where a plaintiff’s legal right has been invaded and there is a continuance or threat of a continuance of such invasion, he is entitled to an injunction. But the court may, in its discretion, award damages either in addition to or in lieu of an injunction whether damages have also been specifically claimed or not. Unless there are exceptional circumstances to justify such a course, this discretionary power ought not to be exercised. Without attempting to lay down any settled rule, it seems to us that there is a justification for the exercise of the discretionary power where the interference with the injury to the legal right is

(1) Small;

(2) Capable of being estimated in money;

(3) Capable of being adequately compensated by a small sum; and

(4) Such that it would be oppressive to the defendant to grant an injunction.

(See per Smith L.J. in Shelfer v. City of London Electric Lighting Company 1895 1 Ch. 287 at p. 322). These conditions must however co-exist otherwise the effect of making an award of damages in lieu of an injunction might be to compel the plaintiff to part with his property for money.

Applying these principles with due regard to the conduct of the parties, we are in no doubt that the learned trial judge was justified on the facts of this case in exercising his discretion in favour of the defendant, but he was clearly in error in that he failed to exercise his discretion in such a way as to prevent the defendant who has done a wrongful act by trespassing on the plaintiff’s land from reaping an undue benefit. In our view, the defendant ought to have been allowed to pay damages for as much land as is necessary to enable him to retain his building and for nothing in excess of that. In order to ascertain the extent of the land so required, we recalled the surveyor (P.W. 2) to testify before us, and requested him to prepare another composite plan (No. SEW/W/404X) which he tendered in evidence and which is marked as Exhibit S.C. 1. In it, an area of some 143 square yards is edged blue and demarcates the portion of the plaintiff’s land which it is necessary for the defendant to keep if he is to retain his building and satisfy the building regulations. We have decided therefore that the justice of this case demands that the order for damages in lieu of an injunction ought to be limited to the area edged blue on exhibit S.C. 1.

In the result, the appeal is hereby allowed and the judgment of Fakayode J. in the Ikeja High Court (suit no. IK/44/64) including the order for costs is hereby set aside, and it is ordered that:

(1) The plaintiff be and is hereby granted possession of the area edged green on Exhibit S.C. 1;

(2) an injunction be and is hereby granted restraining the defendant his servants or agents from further trespassing on the area edged green on Exhibit S.C. 1;

(3) in lieu of an injunction, the plaintiff is hereby awarded 150 damages in respect of the area edged blue on Exhibit S.C. 1; and

(4) The defendant/respondent shall pay to the plaintiff/appellant the costs of the appeal fixed at 89 guineas.

Appeal allowed. Judgment of High Court set aside.

Other Citation: (1971) LCN/1230(SC)