Emmanuel Ekwuno And 18 Ors Vs Ifejika And Anor (1960)

LawGlobal-Hub Lead Judgement Report

HUBBARD, Ag. F.J

The seventeen appellants appeal against a judgment of the High Court of the Eastern Region sitting at Onitsha, by which the two respondents were granted a declaration of title to a piece of land at Onitsha. In the action the two respondents had claimed also damages for trespass, and injunction, and an order for recovery of possession. The declaration was made without the granting of any consequential relief.

The only ground of appeal is that it was improper for the learned Judge to grant a declaration by itself when the respondents’ claim to consequential relief had entirely failed.

The evidence in the action is largely irrelevant on this appeal. The only relevant matters are (1) that none of the seventeen appellants had in fact trespass upon the land, and therefore the respondents were entitled neither to damages, nor to an injunction, nor to an order for recovery of possession; and (2) that by their pleadings the appellants denied the respondents’ averment that they are “Owners in possession of the land in dispute from time immemorial” and alleged that the Obosi people, to which community they, the appellants, belong, are the owners. Mr. Gratiaen, who appeared for the appellants, cited Earl of Dysart v. Hammerton & Co. (1914, 1 Ch. 822 C.A.) in support of his ground of appeal. Mr. Ikpeazu on behalf of the respondents, attempted to distinguish the facts of that case from those which arise on this appeal, but, in my view, unsuccessfully. In Dysart’s case the first plaintiff claimed to be the owner, and the second plaintiff claimed to be the lessee of a franchise ferry. The defendants had recently begun carrying passengers across the river some 500 yards away from the plaintiffs’ ferry. The plaintiffs’ cause of action was that the defendants’ ferry was an illegal interference with their franchise ferry. The defendants denied the interference and also challenged the plaintiffs’ title, i.e. denied that their ferry was an ancient franchise ferry. Warrington, J., at first instance held that the plaintiffs had established their title to a franchise ferry, but that there was no illegal interference by the defendants. He accordingly dismissed the action, but made a declaration that the plaintiffs were entitled to a franchise ferry. On appeal it was held that the defendants’ ferry was an illegal interference and that an injunction ought to be granted, but at the same time it was laid down that if Warrington, J.’s finding that there was no interference had been the correct finding, then no declaration should have been made. This latter proposition was confirmed by the House of Lords (Hammerton v. Dysart, (1916) A.C. 57) per Lord Haldane, at pages 64, 65. Cozens-Hardy, M.R. in the Court of Appeal, said: “If, however, Warrington J.’s view was correct … if … the plaintiffs are held not entitled to any relief against Hammerton, it is really unimportant whether the plaintiffs have or have not an ancient ferry which the defendants have not disturbed. The rule enabling the Court to make a declaratory decree ought not to be applied where a declaration is merely asked as a foundation for substantive relief which fails. The dismissal of the action is not a decision adverse to the plaintiffs’ title to a franchise ferry” (pp.833 and 834). Similarly, on the facts now before this Court it is clear that the dismissal of the plaintiffs’ action claiming a declaration of title is not a decision adverse to the plaintiffs’ title to the land. Buckley, J.J., in the Dysart appeal, said: “Under 0. XXV, R. 5, the Court now has power to make declarations of right whether any consequential relief is or could be claimed or not. The purpose of these last words is not I think, to enable a declaration to be made in a litigation between parties in which the plaintiff could under no circumstances obtain relief against the defendant. It is addressed to cases in which no substantive relief can at present be given, not to cases in which substantive relief could never be given. A declaration can under proper circumstances be made so as to bind future rights. The case here is one in which the learned Judge has found that the plaintiffs could have no relief against the defendants at all.” The last sentence of this passage describes exactly what the learned Judge found in the case before us.

It appears to me that Dysart’s case fully supports the proposition for which Mr. Gratiaen contended. Dysart’s case, however, is not the last word on the matter, nor is it universally true that no declaratory decree can be made where the claim for consequential relief that is to say, relief claimed on the basis of an alleged right of action completely fails. In London Association of Shipowners and Brokers v. London and India Docks Joint Committee 1892, 3 Ch. 242, a declaration was granted, although the claim for consequential relief had failed. In this case the Peninsular and Oriental Steam Navigation Company sought a declaration that a compulsory code of regulations for shipowners using the defendants’ docks was invalid until confirmed as required by statute, and asked for an injunction against the defendants. At first instance, A.L. Smith, J., dismissed the action with costs. At the hearing of the appeal the plaintiffs abandoned their claim for the injunction.

The Court of Appeal dismissed the appeal, but nevertheless made a declaration in favour of the plaintiffs. The relevant facts and the reason for making the declaration are as follows: There were two kinds of berths for ships at the docks, berth appropriated to named companies and unappropriated berths. The plaintiffs, it was found were entitled to complain of the regulations only as regarding the use of unappropriated berths. It was the plaintiffs’ invariable practice, however, to use only appropriated berths for their ships. They had never used, and did not contemplate using, unappropriated berths. Suing as individuals, and not by the Attorney-General as representing the public, they were bound to prove special damages arising from the issue of the regulations, and this they were unable to do. They had, therefore, no cause of action on which they could claim an injunction, and their claim to relief consequential upon the declaration failed altogether.

It was held, however, that although the plaintiffs had not established their right to relief, in the sense of a remedy related to a present or possible future cause of action, they should nevertheless, be granted a declaration in order to give them relief, using that word in a wider sense. This case is considered in Guaranty Trust Company of New York v. Hannay & Co. (1915) 2 K.B. 536, C.A.) in the judgment of Pickford, L.J. (at p. 559), and in the judgment of Banks, L.J., there is a passage explanatory of the meaning of the word “relief’ used in a wider sense in connection with a declaratory decree. “In my opinion the clue to the real meaning of the rule” (0.25, r.4) “is to be found in the opening words. It deals with actions and proceedings. For the present purpose it is only necessary to consider an action. An action is a civil proceeding commenced by a writ (Judicature Act, 1873, s. 100) and in every action there must be a plaintiff who is a person seeking relief (Judicature Act, 1893, s. 100) or, to use the language of Order 16, r. 1, a person in whom a right to relief is alleged to exist. It is the person, therefore, who is seeking relief, or in whom a right to relief is alleged to exist, whose application to the Court is not to be defeated because he applies merely for a declaratory judgment or order, and whose application for a declaration of his right is not to be refused merely because he cannot establish a legal cause of action. It is essential, however, that a person who seeks to take advantage of the rule must be claiming relief. What is meant by this word relief? When once it is established, as I think it is established, that relief is not confined to relief in respect of a cause of action, it seems to follow that the word itself must be given its fullest meaning. ….. I think the rule should receive as liberal a construction as possible” (pp. 571, 572).

Now, in the India Docks case, although the plaintiffs did not intend using unappropriated berths and could not establish special damage, nevertheless they had the right if they wished, to use unappropriated berths, and had they done so they would have been adversely affected by the invalid regulations. Lindley, LJ. said: “It is true that the Peninsular and Oriental Co. always has required docks to be appropriated to its ships, and will in future find it very inconvenient not to have such berths; but the company is entitled to have unappropriated berths unfettered by legal restrictions, and is entitled to exercise its option to have such berths… The Joint Committee has deprived the company of its rights in this respect.  The Joint Committee has rendered it necessary, or, if not necessary, at least expedient, that the rights of the Peninsular and Oriental Co. should be ascertained and declared” (at pp. 258, 259).

On a careful consideration of the India Docks case it appears to me to establish the principle that the Court has a discretion to grant to applicants a declaration where the relief sought is to establish a right which may be adversely affected in the future by something wrongful already done by the defendants at the time the declaration is asked for.

On the facts of the case now before this Court there is indeed no present wrongful act of the defendants which may later affect the title of the plaintiffs to the land in dispute. On the other hand, however, the defendants have alleged that the ownership of the land is in their own community, the Obosi. The Obosi are not a legal entity, they are a large number of natural persons, and the defendants are seventeen of them. The only reason why this action was not brought against the Obosis as a community is that it is impossible under the relevant rules to compel them to be represented by named members of the community. The authority to defend must come from the community and they cannot be compelled to give such authority (Eastern Region High Court Rules, 1955, O. 4, r. 3). The defendants are seventeen of a large number of persons to whom they say the land in dispute belongs. They so pleaded and they called evidence to support this contention. The question of title was litigated as between the seventeen defendants and the plaintiffs, and in view of the allegation of the defendants and of the evidence called in support, there is good reason to anticipate that the Obosis, including the seventeen defendants, may at some future time challenge the plaintiffs’ title. In these circumstances and upon a careful consideration of the authorities, I have come to the conclusion that, as against the seventeen defendants, the plaintiffs are entitled to this relief, that their ownership of the land be established by a declaration of that effect.

I would therefore, dismiss this appeal with forty-two guineas costs to the respondents.

ADEMOLA, CJF

I concur.

ABBOTT, FJ

I concur.

Appeal dismissed.

Other Citation: (1960) LCN/0856(SC)