Jurisdiction-Native Court-Claim for trespass-Claim for injunction within jurisdiction-Claim for damages of amount beyond jurisdiction.

   The respondent as plaintiff in the Native Court sued claiming (1) an injunction to restrain trespass on a stream, and (2) £100 as damages for trespass; and the Court granted him the injunction and £50 as damages.

   The claim of £100 as damages was beyond the Court's jurisdiction; it was limited to £50. The Court had jurisdiction to grant the injunction.

   The defendants applied by certiorari to quash the proceedings; the Judge refused the application in respect of the injunction and only quashed that part of the judgment which awarded damages. The defendants appealed, and their argument was that the main claim was for damages for trespass, that the claim for an injunction was ancillary, and as the Native Court had no jurisdiction to hear a claim for £100 damages, it had no power to hear evidence as to trespass and grant an injunction.

   Held: There were distinct and separate claims, and an injunction could be granted though no damage had been caused. The main issue at the trial was as to which party had the exclusive right to user of the portion of the stream in dispute, and the claim for damages depended on plaintiff's establishing his right and therefore his claim for an injunction: the damages were claimed as an ancillary relief.

 Case cited:-

(1) Jones v. Llanrwst Urban Council (1911) 1 Ch. 393.

      Appeal by appellants in certiorari proceedings, originally defendants in Native

Court: No. 3761

    H. U. Kaine for Appellants.

    M. O. BalonwlI for Respondent.

The following judgment was delivered:

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 for 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 [pg 187] 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 jurisdiction to 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: ] ones 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's claim for damages 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.]. I concur.

Coussey, J.A. I concur.

Appeal dismissed.

[pg 188]