SIMPLICIO KUFEJI (PLAINTIFF)
A. KOGBE (DEFENDANT)
(1961) All N.L.R. 122
Division: High Court of Lagos
Date of Judgment: 7th February, 1961
Case Number: Suit No. LD/6/1961
Before: Coker, J.
Practice and Procedure-Injunction-Application by plaintiff for interim order-May be granted before pleadings filed-No Counter-Affidavit filed by defendant-Principles upon which interlocutory order granted as distinct from perpetual order-Karama, etc. v. Aselemi (1938), 5 W.A.C.A.150 distinguished.
Plaintiff prayed for an interim injunction to restrain defendant from continuing the erection of a building on certain lands, the subject matter of the action.
Defendant filed no Counter-Affidavit, but submitted that application should be dismissed inasmuch as pleadings have not yet been filed, and that since no plan of the lands in dispute was on record in the proceedings, said lands were not properly ascertained nor delimited.
(1) In an application for interim relief by way of injunction, it is not necessary that a plaintiff or applicant should make out as complete a case as he would be required to do on the merits; it being sufficient that he establishes that there is a substantive issue to be tried at the hearing.
(2) The principle of Kamara, etc., v. Aselemi (1938) 5 W.A.C.A. 150, refers to an application for a perpetual injunction and is not applicable to an application for an interlocutory order, where an exact description of the lands is not required, provided that they are readily identifiable by the defendants from the plaintiff's general description thereof in his Affidavit.
Interim Injunction granted.
Cases referred to:-
Karama, etc., v. Aselemi (1938) 4 W.A.C.A. 150.
Preston v. Luck (1884) 27 Ch.D. 497 / 33 W.R. 317.
Odunjo for Plaintiff.
Coker for Defendant.
Coker, J.:-This is an application on behalf of the plaintiff for an Order "for an interim injunction restraining the defendant from continuing the erection of the building on the land the subject matter of this action." The application is supported by the Affidavit of the plaintiff to the effect that he had been in possession of the land in dispute between the parties since 1984 and had erected a shed thereon, but that sometime in October 1960, the defendant entered upon the said land, destroyed the shed and commenced the erection of a building on the land and has since continued with that building in spite of several protests from the plaintiff. No Counter-Affidavit was filed by or on behalf of the defendant.
At the hearing Counsel on behalf of the plaintiff, relying upon the facts in the Affidavit, submitted the plaintiff was not interested in the type of building at present being erected by the defendant on the land and that neither of the parties would be prejudiced if things were allowed to remain as they are until the end of the case.
Learned Counsel on behalf of the defendant submitted that this application should be dismissed inasmuch as pleadings have not yet been filed in order to ascertain the issues to be tried and also that no plan of the land in dispute is on record. Counsel submitted, relying on the case of Karama, etc., v. Aselemi 4 W.A.C.A. 150, that it is necessary that the land upon which an injunction is supposed to operate should be properly ascertained and delimited before the order was made.
I am satisfied in this case and at this stage that the identity of the land cannot by itself be a bar to the issue of an injunction by way of interlocutory order; it is correct that pleadings have not yet been filed but it is also clear that an order for pleadings had already been made. The claim of the plaintiff is for a declaration of title "to a piece of land situate, lying and being at Ayilara Street, Surulere" and for possession of the land and damages for trespass. The averments in the Counter-Affidavit are not controverter. In an application for interim relief by way of injunction it is not necessary that a plaintiff or applicant should make out a case as he would do on the merits, it being sufficient that he should establish that there is a substantial issue to be tried at the hearing, see: per Cotton, L.J.; in Preston v. Luck (1884) 27 Ch.D. 497 at506. The case of Karama, etc., v. Aselemi (1938) 4 W.A.C.A. 150 referred to by Counsel for the defence refers to a perpetual injunction and not to one by way of interlocutory order. In this case the applicant maintained that he was dispossessed by the defendant, who is indeed proceeding to alter the condition of the land. In the interests of justice and as the applicant has stated that he is not interested in the type of building now being erected on the land by the defendant, I take the view that the present status quo must be maintained until the determination of this case. In the interests of the defendant himself it is advisable that the issue of title be resolved, and that in his favour, before he continues with the expenditure of large amounts of money in developing the land.
It is clear from the facts available at present that there is no difficulty about the identity of the land upon which this interim order is supposed to operate. The writ of summons describes the land generally and facts on the Affidavit describe the land not only generally but also as the land upon which the defendant is at present erecting a building. The maxim of the law is id certum est quod certum reddi potest and I am satisfied that the defendant knows or ought to know the land to which this order which is now sought must be attached. I will therefore allow this application.
I order on this application that pending the determination of this suit neither the plaintiff nor the defendant should erect or continue with the erection of any building, of any type whatsoever, on the said land the subject matter of this action, and on which the defendant is at present building.
I order that the defendant do pay the costs of this application which I fix at four guineas.
Interim Injunction granted.