Ibeneweka v Egbuna
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1964 |
| Date | 1964 |
| Court | Privy Council |
Practice - Declaratory judgment - Title to land - Declaration of right - Notwithstanding refusal of consequential reliefs -
By Order 25, r. 5, of the English Rules of the Supreme Court (made applicable in the Eastern Region of Nigeria by sections 14 and 15 of the
The respondents, on behalf of themselves and in a representative capacity on behalf of the Ukwa family, Onitsha, claimed, inter alia, a declaration of title to an area of land and consequential reliefs, but the appellants, who by their defence, inter alia, set up the title of the Obosi people to the disputed land, denied that they were the persons to represent the Obosi people. The trial judge was of opinion that although the suit was against the appellants in their personal capacity in substance it was the Obosi community who were standing behind the appellants. He held that there was no proof of trespass or of being in possession by any of the appellants who were sued in a personal capacity, and that an injunction would not lie against unlawful interference by them and they could not be evicted, but as they raised in their defence the title of the Obosi people to the land in dispute, and had failed to substantiate it, the respondents, who had proved their title, were entitled to a declaration against the appellants:—
Held, that the power under R.S.C., Ord. 25, r. 5, was in wide and general terms and what was conferred was a discretion to be exercised according to the facts of each individual case. Beyond the fact that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there were circumstances that called for their making, there was no legal restriction on the award of a declaration (post, pp. 224, 225).
There had never been any unqualified rule of practice that forbade the making of a declaration even when some of the persons interested in the subject of the declaration were not before the court. Where, as here, the appellants had decided to make themselves the champions of the rights of those not represented — the Obosi people — and had fought the case on that basis, and where, as here, the trial judge took the view that the interested parties not represented were in reality fighting the suit, so to say, from behind the hedge, there was no principle of law which disentitled the judge from making a declaration of title in the respondents' favour (post, p. 226).
APPEAL (No. 42 of 1961) from a judgment and order of the Federal Supreme Court of Nigeria (Ademola F.C.J., Abbott F.J. and Hubbard Ag.F.J.) (June 24, 1960) dismissing an appeal from a judgment of the High Court of the Eastern Region of the Federation of Nigeria (Onitsha Judicial Division) (Betuel Ag.J.) (May 16, 1958) whereby a declaration of title to certain land in Onitsha was made in favour of the present respondents (plaintiffs).
The question on this appeal was whether the courts below were right in holding that the respondents were entitled to a declaration of title to the land in question notwithstanding that their claims to other relief, namely, damages for trespass, and injunction and recovery of possession, were dismissed.
The facts appear from the judgment of the Judicial Committee.
1963. December 16, 17. E. F. N. Gratiaen Q.C. and R. K. Handoo for the appellants.
Alun T. Davies Q.C. and Ralph Millner for the respondents.
The following cases, in addition to those referred to in the judgment, were cited in argument: Kodilinye v. AnatoguF1; Adegbite v. LawalF2; De Lisle v. Union Bank of ScotlandF3; Earl of Dysart v. Hammerton & Co.F4; Venables v. Baring Brothers & Co.F5; Nana Ofori Atta II v. Nana Abu Bonsra IIF6; Dyson v. Attorney-General.F7
1964. January 23. The judgment of their Lordships was delivered by VISCOUNT RADCLIFFE. This is an appeal from an order of the Federal Supreme Court of Nigeria dated June 24, 1960, dismissing an appeal from an order of the High Court, Eastern Region, dated May 16, 1958. The only question raised by the appeal is as to the propriety of the course taken by the trial judge, Betuel, Ag.J., in making a declaration of title in favour of the respondents at the conclusion of his hearing of the suit. It is not argued for the appellants that he had no jurisdiction to make such an order, even though, as happened here, he decided that the respondents were not entitled to any other form of relief. It is admitted that he had a discretion...
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Table of Cases
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