MERIOGUN DADSON OGBE
V.
SAM WARRI ESI & ANOR

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Injunction-injunction granted though not claimed -Injunction in wide terms. Appellants were sued by respondent in two actions which were consolidated. In one action respondent claimed damages for trespass committed on certain land, and in the other he claimed damages for another trespass committed on a piece of land forming an enclave in the first land but not affected by the former acts of trespass, and an injunction to restrain appellants from entering the enclave.

Evidence was given of acts of trespass in the enclave and at two places in the land outside the enclave. The trial Judge gave damages for the trespass in the enclave and for the trespass at one of the places outside it, but considered that the evidence that respondent was in possession of the land at the other place was not strong enough to enable him to maintain trespass. He also gave two injunctions, one to restrain appellants from entering the enclave, and the other to restrain them from entering the whole of the land without the consent of third parties in whom the evidence showed the land outside the enclave was vested.

Held: No justification for granting the second injunction; appeal allowed as regards the second injunction, and judgment of trial Court varied by deleting the grant thereof.

(Note,-For the grant of equitable relief which has not been claimed, but the right to which appears incidentally in the proceedings, see Protectorate Courts’ Ordinance, No. 45 of 1933, section 15 (Nigeria), Protectorate Courts’ Rules, No. 5 of 1934, Order X, rule 2 (Nigeria), the Supreme Court of Judicature Act, 1873 (36 ,t. 37 Viet., c. 66) section 24, sub-section (4), the notes in the Annual Practice to section 40 of the Supreme Court of Judicature (Consolidation) Act, 1925 (15 and 16 Geo. 5, c. 49), and Beigh v. Shaw, 5 W.A.C.A. 16.

The right to equitable relief was not proved here; Karama v. Aselewi, 4 W.A.C.A. 150.

J. 1. C. Taylor for Appellants. E. O. Moore for Respondent.

The following joint judgment was delivered :- KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE. There is no substance in this appeal so far as it concerns the two awards of damages for trespass. Nor do we see any reason for interfering with the first injunction granted, except to make a slight alteration as will appear later.

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But the second injunction granted was not asked for by the plaintiff and it is in very wide terms, we see no justification for granting it.

The appeal is dismissed as regards the two awards of damages and the first injunction granted, but it is ordered that for the words, letters and figures therein appearing “bounded by the points Xl X2 X3 and X4” there be substituted the words, letters and figures “bounded on the East by the river and on the North, “ West and South by straight lines joining the points “ X2, Xl, X3 and X4 “.

The appeal is allowed as regards the second injunction granted and it is ordered that judgment of the Court below be varied by deleting the grant of the second injunction. The order of the Court below as to costs stands good. As each party has been partly successful in this Court there will be no order as to costs in this Court.