Benjamin Oladipo Kupoluyi & Anor V. Chief E.o. Phillips & Anor (1994)
LawGlobal-Hub Lead Judgment Report
ALOMA MARIAM MUKHTAR, J.C.A.
A motion on notice seeking three prayers was moved by Chief A.O. Fadugba. of Counsel for the appellant. The prayers are for –
1. Leave to amend the notice and grounds of appeal.
2. Interlocutory injunction restraining the defendants/respondents jointly and severally, their agents, privies, servants and any other person that may derive title from them from entering, alienating or dealing with the area of land excised marked ‘Blue’ on the appellants/applicants Survey Plan Exhibit ‘A’ until the final determination of the appeal to this court.
3. Stay of execution of the costs awarded by Mr. Justice Kolawole in his judgment dated 14th October 1993 in favour of the defendants/respondents until the final determination of the appeal before this court.
The applicants in this motion as plaintiffs in the Ilesa High Court instituted an action against the respondents for a declaration of title to a parcel of land which they claimed belonged to Baatisan family, which they represent. The parcel of land measuring 60.65 acres situate at Oke-Ope near Ilesa G.R.A. had been sold by the Ogboni family, who claimed the land was the Ogboni Chieftaincy family land. The learned trial Judge in his judgment granted the declaration that the Baatisin Chieftaincy family was entitled to a grant of statutory right of occupancy to the piece of land with the exception of a proportion of it, to put it in the words of the learned Judge, “which is more particularly shown and delineated on Survey Plan No. PFY.1026 of 13th May, 1991 prepared by P.F.O. Ogunleye licensed Surveyor but less the area verged blue on that plan.” The plaintiffs were dissatisfied with the exclusion of the said portion from the land they were claiming by the Judge and so have appealed to this court, and also sought the above prayers pending the determination of the appeal.
The application is supported by an affidavit, to which the respondents filed a counter-affidavit.
Learned counsel for the applicants in arguing his motion has submitted that they have legal right to the area verged ‘blue’ in respect of which they were refused title. He referred to paragraphs (14) and (15) of their affidavit to establish that they have legal right to the land and the case of Union Beverages Ltd. v. Pepsi Cola Ltd. (1994) 3 NWLR (Pt.330) P.1 at page 11. Counsel also referred to Exh. ‘F’ which dealt with the same land and contended that the boundaries in Exh. ‘F’ is the same as the boundaries in Exhibit ‘B’. Learned Counsel for the respondents in his reply submitted that the applicants have no root of title, and as to the boundaries no plans were filed in the proceeding leading to Exh. ‘F’. I will reproduce the paragraphs of the affidavit referred to above and (16) hereunder:-
14. That the land in dispute belongs to my chieftaincy family from time immemorial.
15. That it was my case in the court below that the farmland in dispute was granted to my family by Owa Atakumosa original owner of the land and it was the first respondent’s case that it was his ancestor in his office who granted the land to one Yeye Duki the mother of first Baatisin during Owa Atakumosa’s reign and after her death the land devolved on her children the Baatisin Chieftaincy family.
16. That whatever may be the case the land was granted to the first holder of the Baatisin Chieftaincy title our ancestor and we have since been in possession using the land for farming purposes.
The respondents in their counter-affidavit challenged the above depositions as follows:-
5. That it is not true that the land in dispute verged blue on Exhibit A belongs to the Baatisin chieftaincy family. The land in dispute was and is at all material times owned by Ogboni chieftaincy family.
6. That it is not true that the land in dispute was granted to Baatisin Chieftaincy family by Owa Atakunmosa.
7. That the Owa Atakunmosa had no right to make such alienation as the land was originally owned and has from time immemorial belonged to and has been in the exclusive and undisturbed possession of the Ogboni chieftaincy under native law and custom.
There are conflicts in the above depositions which ordinarily may have necessitated oral evidence to resolve where it is so desirable, but to me for the purpose of this exercise doing so will be tantamount to rehearing the case. Likewise, reading the judgment and making a detailed analysis of whose affidavit evidence is correct will be tantamount to pronouncing on the appeal, which is not the duty of this court at this stage of the proceeding. That brings me to the question, who has legal right in the property over which the applicants are seeking an injunction? To my mind the answer to that question is, it is not the persons who as plaintiffs were refused the relief sought, but in this case the person who has and is still in possession of the portion of land that is presently the crux of the appeal. In order to determine this one has to carefully read the paragraphs of the affidavits reproduced above. Paragraphs 14-16 of the applicants supporting affidavit has not made a distinction between the whole land that was the subject of dispute in the lower court and the portion of it to which the applicants are now seeking an injunction, they talked about the “land in dispute.” It is however, to be found in the respondents’ Counter -affidavit that they specifically referred to the land verged Blue on Exhibit ‘A’. In this respect I will say that their affidavit having started with the categorical averment that the land in dispute is the one verged blue on Exh. ‘A’, in paragraph (5) it will be correct to say that all the averments that followed referred to the said land verged blue. With this in mind I tend to believe that paragraph (8) of the Counter-affidavit refers to the portion of the land for which the applicants’ prayer is sought, not the whole land for which the supporting affidavit refers and for which anyone is wont to believe. The said paragraph reads:-
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8. That the plaintiffs/appellants/applicants or their servants, agents or privies could not have planted anything nor put tenants on the land in dispute without my knowledge or that of my predecessors in office, being the person or persons at all times in control and exclusive possession of the land at Oke-Opo and have always exercised various acts of ownership over the same.
With the above deposition and the judgment of the lower court on the land verged blue in Exh. ‘A’ can one really say that the applicants have a right to support or protect? Perhaps a thorough understanding of the words of Adio, J.S.C. in the case of Union Beverages Ltd. (supra) relied upon by Chief Fadugba will be of assistance. In writing the lead judgment the learned Justice on the requirements for an application of interlocutory application said –
“The application will not be granted if it is not shown that the alleged act of the defendant constitutes an infringement of a legal enforceable right of the plaintiff. See Day v. Bownrigg (1878) 10 CH.D 294; and Akapo v. Hakeem Habeeb (1992) 6 NWLR (Pt.247) page 266. It is a fundamental rule of law that the court will grant an injunction only to support or protect a legal right. If the applicant has no legal right recognized by law there is no power to grant an injunction. See Braigle v. Adoki (1931) 10 WLR 15; and Morohunfola v. Kwara College of Technology (1990) 4 NWLR (Pt.145) page 506.”
The requirements are very clear and my own view is that the applicant has no legal right to protect or support as at now.
On the substance of the pending appeal learned counsel for the applicants has submitted that there is a serious point of law to be tried during the hearing of the appeal, and referred to the grounds of appeal. He further submitted that if the application is not granted the appeal will be rendered nugatory if the appellant succeeds. He relied on the cases of Igwe v. Kalu (1993) 4 NWLR (Pt.285) page 1 and Ajomale v. Yaduat (No.2) (1991) 5 NWLR (Pt.191) page 266. Learned Counsel for the respondents has replied that the grounds of appeal are not substantial, they are merely superficial. It is the requirement of the law that such an application will be granted when the grounds of appeal disclose substantial and arguable points of law, in addition to the other requirements. See Kufeji v. Kogbe (1961) 1 All NLR 113 and S.G.B. (Nigeria) Ltd. v. Awaye Motors (1992) 4 NWLR (Pt.234) page 231. I have examined the grounds of appeal and I am not satisfied that this court should exercise its discretion in favour of the applicants on this score. The courts do not deprive a party of the fruits of his judgment, unless where it is clear that the judgment is glaringly erroneous that refusing the application for stay of execution or injunction will be unjust and cause hardship to the applicant. See Okafor v. Nnaife (1987) 4 NWLR (Pt.64) 129; Kotoye v. C.B.N. (1989) 1 NWLR (Pt.98) page 419. In this case I cannot see how such can be said of the applicant since the 2nd respondent has been in peaceful occupation since the 1st respondent sold the land to him in 1968. See paragraphs 15 and 6 of the Counter-affidavit. Having been physically on the land for this length of time without any warning or molestation by the applicants coupled with the fact that the 2nd respondent has been adjudged to be the owner of the land, I am of the opinion that the status quo should be maintained pending the determination of the appeal. The Courts as much as it is feasibly possible are always inclined to maintain the status quo of a litigation, where doing so will not affect or endanger the subject matter of the litigation. It is important that the balance of convenience must be considered, as the position ante should be disturbed very reluctantly. See The Military Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt.18) 621; and Sotuminu v. Ocean Steamship (Nig.) Ltd. (1992) 5 NWLR (Pt.239) page 1.
Learned Counsel for the respondents has objected to paragraph 26 of the supporting affidavit saying it has no evidential value. He placed reliance on the case of Ladunni v. Kukoyi (1972) 1 ANLR page (Pt.1) 133. The said paragraph 26 reads:-
26. That a land agent called Fawowe at Ilesa told me which I believed that members of the public who purchased part of the land sold by the second defendant were over one hundred and fifty and they have lodged their respective building plans with Ilesa Local Government Town Planning Authority for approval with a view to embark on developing their respective plots of the land purchased anytime from now.
The deposition was denied by the respondents in paragraph 20 of their counter-affidavit. I fail to see that the action mentioned in the said paragraph (26) supra (assuming it is true) will jeopardize the chances or position of the appellants in the appeal if they succeed. Once they are adjudged the rightful owners of the land by the Appeal Court, the land irrespective of what is thereon automatically becomes theirs. The rule quic quid plantatur solo solo cedit applies. See Ekpen v. Chief Uyo (1986) 3 NWLR (Pt.26) page 63. I cannot therefore conceive why the applicants should entertain any fear in respect of whatever actions purchasers of the land have taken or are about to take.
At this juncture I will refer to paragraph (19) of the counter affidavit which I think is worthy of comment. It reads:-
19. That the applicants having realized that as plaintiffs, they cannot successfully bring an application for an order of stay of execution of the judgment of the lower court, they have adroitly and cleverly resorted to this application for an order of interlocutory injunction.
Indeed, the correct order to have applied for is that of a stay of execution, not an interlocutory injunction, the facts and background of the case put together and considered. Be that as it may they have come the way they think convenient and suitable to them and the court has listened and dealt with the application the way it deems fit. In the light of the reasoning applied this prayer cannot succeed.
On prayer (3) in the application learned counsel for the respondents has argued that it is misconceived. He referred to order 53 R.3 of the High Court Civil Procedure Rules of Oyo State 1988 which gives the court power to order parties to pay costs. The order states:-
“In every suit the costs of the whole suit, and of each particular proceedings therein and the costs of every proceeding in the court, shall be in the discretion of the court as regards the person by whom they are to be paid.”
There is no gainsaying that this provision vests discretionary powers of the assessment of costs on the court, and in my view this court will not do anything about the exercise of that discretion unless it is absolutely necessary. Learned Counsel for the applicants has not shown the court why it should stay the execution of the order as to costs made by the lower court. Besides, the applicants have not appealed against costs.
The first prayer for amendment of notice of appeal was not opposed by learned counsel for the respondent. It is therefore ordered as prayed. The second and third prayers are refused for all the reasons above. On the whole the application succeeds in part and is hereby dismissed in part to the extent of the second and third prayers. I assess costs at N300 in favour of the respondents.
Other Citations: (1994)LCN/0181(CA)
