Foster-Sutton, P. These proceedings were originated by the respondent filing a summons in the Nsukwa Federal Court by which he claimed against the appellants:- Firstly, an injunction to restrain them, their agents or servants, from trespassing into the respondent’s stream called Iyese and from collecting fees there; and
Secondly, £100 damages for trespass and for fees collected in the stream by the appellants from the years 1948 to 1951.
Judgment was given for the respondent granting the injunction prayed and awarding £50 damages in respect of the trespasses complained of.
The appellants then moved in the Supreme Court, Warri, for an order absolute a writ of certiorari to issue with the object of obtaining an order quashing the proceedings of the Native Court on the ground that the Court had no jurisdiction to entertain the suit brought by the respondent.
The application came before Reece, J., who held that the Nsukwa Federal Court had jurisdiction to grant the injunction, but the claim for damages being in excess of £50 it had no jurisdiction to entertain that part of the claim and he refused the application in respect of the injunction but made the order absolute directing that the proceedings be removed to the Supreme Court for the purpose of quashing that part of the judgment of the Native Court awarding damages for trespass.
The Native Court in question is a “Grade C” Court and its jurisdiction in an action for damages is limited by the Schedule to the Native Courts Ordinance to fifty pounds.
In the Court below and before us, the appellants Counsel conceded that the Nsukwa Federal Court had jurisdiction to grant an injunction, but contended that the main claim was the one for £100 damages for trespass, that the claim for an injunction was ancillary to the main claim and the Native Court having no jurisdiction to entertain the claim for £100 damages for trespass,. It had no power to hear evidence as to trespass and no grant an injunction.
With those contentions I am unable to agree. The respondent was seeking two separate and distinct forms of relief and an injunction may be granted even though no damage has been caused: Jones v. Llanrwst Urban Council (1).
The proceedings before the Nsukwa Federal Court form part of the record on this appeal, and an examination of them, in my opinion, discloses that the main issue the Court was being asked to determine was the question as to which of the parties to the suit had the exclusive right to the user of that portion of the Iseye stream which was in dispute.
The respondent was asking for a perpetual Injunction which is based on a final determination of the rights of the parties, and is intended permanently to prevent infringement of a right, and obviate the necessity of bringing an action after every such infringement. In this case the respondent claim for trespass depended upon his being able to establish his interest and therefore his claim for an injunction and, in my view, was clearly the ancillary relief sought.
For these reasons I am of the opinion that Reece, J., was right in holding that the Nsukwa Federal Court had jurisdiction to grant the injunction. I would, therefore, dismiss this appeal with costs.
Verity, C.J. I concur. Coussey, J.A. I concur.
Appeal dismissed.