Ishmael Emegwara & Ors V. Noah Nwaimo & Ors (1953)

LawGlobal Hub Judgment Report – West African Court of Appeal

Real property—Trespass—Claim for injunction—Claim for declaration of title—Title not alleged with precision—No evidence of precise title.

Facts

The respondents as plaintiffs obtained a declaration of title to an area of land, damages for trespass, and an appropriate injunction, against the appellants as defendants. The evidence left no doubt that the plaintiffs were entitled to exclusive and undisturbed possession and that the defendants entered wrongfully and committed trespass.

As regards the declaration of title, the claim in the writ of summons was for
“titular ownership the statement of claim hesitated between allegations of original ownership and acquisition of title “ several generations ago ” by grant from the defendants’ predecessors in title; such a grant was said by plaintiffs’ counsel in the appeal to be the real basis of their claim. At the trial there was no evidence as to the precise terms of the grant on which a specific claim could be based. The defendants appealed.

Held

(1) (on the injunction): As the plaintiffs were entitled to exclusive and undisturbed possession and the defendants had committed trespass, the defendants should, until such time as they established by lawful process that the plaintiffs had forfeited their right of occupation, be restrained from further trespass.

(2) (on the declaration of title): The nature of the right claimed by the plaintiffs was not specified, nor was there any evidence on the precise terms of the grant upon which any such specific claim could be based; it was therefore a mistake to grant the plaintiffs a declaration of title.

Judgment of Court below varied.