Cyprian Ekwomchi & Ors V. Chief S.n. Ukwu & Ors (2001)
LawGlobal-Hub Lead Judgment Report
M.D. MUHAMMAD, J.C.A.
This appeal challenges the lower court’s exercise of its discretionary powers. The appeal is an interlocutory one against the decision of E.C. Ahanonu, J. of the Enugu High Court delivered on 15th July, 1999. Let me restate the brief facts of the case that brought about the appeal.
The respondents before us as plaintiffs filed a suit on 21/11/98 at the lower court against the appellants who then were defendants claiming the following reliefs:-
(i) A declaration that all that parcel of land particularly bounded by the Ayo River, Nyaba River the old Awgu Road and the Federal Science Equipment School Federal Grains Board at Akegbe Ugwu is the subject matter of the appellate court’s judgment of 10/3/52 as delivered by the Assistant District Officer, Udi Division.
(ii) A declaration that the plaintiffs are entitled to the right of occupancy of all that parcel of land stated in prayer 1 herein above.
(iii) An order directing the parties herein to comply with the judgment stated herein above.
(iv) An order of perpetual injunction restraining the defendants from entering the parcel of land stated in prayer 1 of the reliefs herein.
(v) 5 million naira damages against the defendants.
The respondents at the time of filing their suit also sought an ex parte interim order of injunction against appellant in respect of the same piece of land. The respondent were obliged pending the determination of a motion on notice for interlocutory injunction in the same terms as canvassed by the respondents’ ex parte application.
On 30/6/99, the court took arguments in respondent’s application for interlocutory injunction which was earlier filed on 27/11/98 and thereafter in a thirteen page considered ruling, granted the respondents the order so sought. The appellants being dissatisfied have instituted the present appeal.
Parties to this appeal have filed briefs of arguments wherein they formulated issues to determine the appeal.
The appellants’ two issues are:
(i) Whether on the materials placed before the court, the injunction so ordered can be justified?
(ii) Was the trial court’s assessment of the balance of convenience as between the parties done in the proper exercise of the court’s discretion?
On the part of the respondents, quite apart from their two issues also, notice of preliminary objection as to the competence of the very appeal had been imbedded and argued in their briefs. The three understated issues had thus been presented by the respondents for the determination of appeal. The issues are:-
(i) Are the grounds of appeal competent?
(ii) Whether the appellate court can validly disturb the decision complained against? and
(iii) Whether the trial court’s assessment of the balance of convenience as between the parties occasioned a misdirection in the decision that compensation will be adequate should the appellants prove to be owners of the disputed land?
Mr. Akputa has abandoned the preliminary objection to the hearing of this appeal and, in our view, that was the correct step to take.
Learned counsel for the appellants has forcefully stated the position of the law. It is true that this is an interlocutory appeal against the injunctive order of the lower court. By s.241(1)(f)(ii) of the 1999 Constitution where the appeal is against the grant or refusal of an injunctive order, once it is within the time allowed by s.25(2)(a) of the Court of Appeal Act, the appeal would be one lodged as of right. In the instant case, the decision being appealed against was given On 15/7/99. The notice and grounds of appeal was filed on 28/7/99. The appeal was filed within time and does not require leave of this court for its competence, see Elobisi v. Onyeonwu (1989) 5 NWLR (Pt. 120) 224 CA; Eguamwense v. Amaghizemwen (1986) 5 NWLR (Pt.41) 282.
The appellants had asked if the materials before the court justified the exercise of the discretionary powers of the court in favour of the respondents. This forms the appellants’ first issue for the determination of this appeal and in fact encompasses the second issue as well. Learned counsel for the appellants answered the question in the negative and made several submissions both in their brief and orally when the appeal was heard.
Learned counsel argued that pleadings had not been filed by parties when the court took arguments in respondents’ application for injunction and granted same. In essence the injunctive order was granted simply on the basis of the motion paper and the affidavits for and against the application, counsel admitted however, that the respondent had annexed Exh. ‘I’, the sketch indicating the area claimed, to his application. It was also argued that respondent had, as indicated at p.19-22 of the record, applied and had their writ amended. By this amendment respondent not only abandoned totally the relief for an injunction but distorted the description of the area regarding which the interlocutory injunctive order was sought. This brought about serious conflict in the affidavits of the parties, the resolution of which required oral testimony. Failure of the court to resolve the conflict was fatal. So was respondents’ failure to ascertain the boundaries of the land in respect of which they asked for the court’s order. Counsel relied on FSB International Bank Ltd. v. Imano Nig. Ltd. (2000) 11 NWLR (Pt. 679) 620; 7 SCNJ 2000; and Daniel Idehen v. Osemwenkhae (1997) 10 NWLR (Pt. 525) 358; (1997)7 SCNJ 581 at 590 and Umesie v. Onuaguluchi (1995) 9 NWLR (Pt. 421) 515; (1995)12 SCNJ 120 respectively for these two submissions.
Under this first issue, learned counsel finally argued that respondent was unable to clearly state their interest to the court and at what point in time the interest was interfered with by the appellants this was necessary for the court to determine in the exercise of equitable powers that respondents had not been guilty of delay. The combined effect of all these lapses submitted counsel is that the court’s discretionary relief had wrongly been obtained.
Under the 2nd issue, it was argued that the lower court’s findings at 58 line 26 that both parties laid claims to the disputed land made it all the more inappropriate for the respondents to secure the injunctive order simply on the basis of the undertaking for damages they offered. In its consideration of the balance of convenience, the court only considered the convenience of the respondents alone to the detriment of the appellants. Learned counsel submitted that respondents had not been in occupation of the land in disputes. Appellants were. The balance of convenience should have been viewed more from the perspective of the appellants rather than that of the respondents. This failure was fundamental and on the authority of the case of Ilechukwu v. Iwugo (1989)2 NWLR (Pt. 101)99, counsel submitted, the injunctive order was wrongly granted.
On the whole, learned counsel rounded up his arguments by submitting that where the description of the land in dispute is uncertain, the interest of the respondents undefined in addition to the difficulty in ascertaining in whose favour the balance of convenience really was, at best the lower court could have ordered accelerated hearing and declined the grant of the injunctive order. This position is all the more justifiable when by their affidavit the respondents had alleged that appellants were already occupying the trespassed land. Injunctions, counsel submitted are never granted against a completed act. It would also not be granted where the same relief had not been asked in the substantive suit. The lower court’s order having been acquired on the basis of insufficient materials the exercise of the court’s discretion was resultantly wrong. Counsel asked that the appeal be allowed.
In arguing the appeal, respondents’ counsel rather than gearing his submissions to the issues they formulated, chose to tackle the submissions and arguments proffered by appellants’ counsel. This was done in a disorganized manner. Learned counsel argued that the assertion that the boundaries of the land claimed by the respondents had not been clearly demarcated cannot be correct. The respondents’ affidavit in paragraphs 3, 4, and 6, paragraph 3 of the further affidavit and Exh, ‘I’ the sketch accompanying the respondents’ supporting affidavit clearly described the area in dispute. These clear boundaries of the land had been known and agreed to by both parties such that none could be heard to deny its limits, or demand a survey plan to indicate same. The judgment of 1952 in respect of the land in dispute and para. 7 of the appellants’ counter affidavit along with all such other facts supplied by the respondents had fully defined the boundaries. The court was correct in accepting the description without necessarily asking for a survey plan. Counsel relies on Etiko v. Aroyewuni (1959) SCNLR 308; (1959) FSC. 129.
Learned respondents’ counsel submitted further that respondents had shown they had an arguable case. It is not the law that respondents must make a case on the merits to be able to secure the order sought. Once a substantial case had been made out by an applicant, and respondents had made out such a case, he became entitled to the relief he got. Counsel referred to the following cases: Obeya Memorial Hospital v. A.G .Federation (1987) 3 NWLR (Pt. 60) 325 at 340; Globe Fishing Ind. Ltd. v. Coker (1990) 7 NWLR (Pt.162) 265 at 281. The Judge rightly declined going into matter which only trial of the substantive matters would have resolved. The position taken at this interlocutory stage was proper. Counsel relies on Akapo v. Hakeem-Habeeb (1992) 6 NWLR (Pt. 247) 266, 287.
On the issue of delay, learned counsel submitted that since the issue was not made by the appellant at the lower court, the issue cannot be raised now since leave had not been obtained. In any event, by respondents’ averments in paragraph 21, 22, 23, 24 and 25 of the further affidavits and Exh. 3, 4, and 5A to 75 annexed thereto, respondents were in possession of the land in dispute from 1982 through 1998 before the commencement of the suit and the eventual prayer for the order they were granted. The complaint against the activities of the appellants therefore related to the period just before the suit instituted by the respondents. Delay cannot therefore be ascribed to the conduct of the respondents as at the time the injunctive order was granted.
Learned respondents’ counsel argued that by virtue of paragraphs 7, 8,9 of their affidavit and paragraphs 21, 22, 23, 24 and 25 of the further affidavit and Exh. 3-75 viewed against the background of paragraph 14 of the appellants’ counter-affidavit, respondents had shown clearly that they were in occupation of the land. They built on the land and allowed their tenants to develop same. The appellants on the other hand only asserted that they were farming on the land in dispute without more. Respondents from available facts before the court stood to suffer more if the application was refused. The court was right to have exercised its discretion to such a party. The order has preserved the status quo and that was what such orders were aimed at achieving. Learned counsel in buttressing his point cited Ayorinde v. A.G., Oyo (1996) 3 NWLR (Pt.434) 20; (1996) 35 LRCN 257 and Nigeria Cement Co. v. NRC (1992)1 NWLR (Pt.220) 747, 759.
Finally, learned counsel argued that although there was a motion for the amendment of their writ same had not been argued and determined. It thus cannot be true that respondents had amended their writ.
On the whole, counsel submitted there was enough materials before the court to justify the order it granted. He asked that we dismiss the appeal.
It must be pointed out straight away that arguments proffered by appellants’ counsel had shown a complete misapprehension of the very many judicial authorities governing the grant or otherwise of interim injunctive orders and what the attitude of an appellate court would be in regarding appeals from such decisions.
Firstly, I must state what my examination of the record of appeal has revealed. It must be conceded to the respondents that it is not true that they had effected amendment in their writ thereby abandoning the prayer for the injunctive relief in the substantive case. The record of appeal speaks for itself and binds us all.
The point has vigorously been canvassed by the appellant’s counsel that there was conflict in the affidavit evidence as to the boundaries of the land in dispute which made the calling of oral evidence necessary for the resolution of the conflict. Learned appellants’ counsel must be reminded that the lower court needed not to go to the extra extent he wanted it to once inspite of any conflict in the affidavits of parties the boundaries of the land sought to be protected by acquiring the injunctive order had been otherwise fully described. Happily, here, apart from the description of the land in dispute in the writ, the ex-parte and motion on notice in respect of the injunctive order, Exh. ‘I’ a sketch regarding the area had equally been annexed to the respondents’ motion. From the copious averments of parties it has become clear too that parties were fully aware and certain about the extent of the land in respect of which the injunction was granted. Thus in this case, there was no difficulty about the identity of the land upon which the injunctive order was tied. The court was right to have exercised its discretion in respect of such land the identity of which from materials before it had been shown to be precise. It is also instructive to note that in Kufeji v. Kogbe (1961) 1 All NLR (Pt.1) 113, it has been held that where the identity of the land is known to the defendant the non placement of the exact description of the land before the court would not be fatal to the grant of an injunctive order.
Furthermore, since the case of American Cyanamid Co. v. Ethicon Ltd (1975) AC 396 which was adopted by the Supreme Court in Obeya Memorial Hospital v. A.G. Federation (1987) 3 NWLR (Pt. 60) 325 at 337, it has become trite that it is not part of the court’s functions to resolve conflicts in affidavit evidence as to facts on which contending parties base their claim or objection to the grant of an injunctive relief. Such an exercise must be reserved for the full trial. Infact, all that the applicant needed to do, and here that can be seen and said to have been done, is to show that there was a serious question between the parties to be tried at the hearing to entitle him to the relief he got. See Onyesoh v. Nze Christopher Nnebedun & Ors (1992) 3 NWLR (Pt. 229) 315; and Kotoye v. CBN (1989) 1 NWLR (Pt.9 8) 419 and (1993) 1 NWLR (Pt. 270) 462.
It is evident from the record that the lower court was fully appreciative of its duties when it held at p.56 as follows:
“Indeed, this court is not required at this stage to decide the conflicts in the affidavits of the parties. It seems to me at this stage that what is required to be considered is whether the applicants have disclosed a right capable of being protected by injunction and serious question capable of invoking the jurisdiction of this court at this stage.”
Having found that applicant had disclosed sufficient interest to warrant the court’s protection, the court then considered the twin requirement of balance of convenience. The court’s finding spanning Pp 57-59 reproduced hereunder is unassailable.
Firstly, he asked the following important questions:
“who then is likely to suffer more inconvenience if the application is not granted? To answer this question fully we must also ask the complementary question, having regard to the facts outlined above, would the applicants be adequately compensated by an award of damages for the loss they would sustain should the respondents be left to continue encroaching on the land and building between now and end of the hearing should applicants succeed ultimately?
Another question is complementary to these and that is, although applicants have undertaken to pay damages should the application be found to be frivolous, would such damages be adequate compensation to respondents for the loss they would suffer for being prevented from going into the land between now and final determination of the suit?”
The court thereafter reviewed the evidence before it and concluded thus:-
“I am satisfied that this application comes within equitable jurisdiction of this court. The applicants have disclosed a serious question to be tried and a right which stands the risk of violation unless protected.
It does not matter at this stage whether or not the applicants will succeed in the end. What is important is that his alleged right is not jeopardized before they are heard.
In other words, the res should be maintained. In this case, both parties claim rights over the land in dispute but I am satisfied that the applicants have adduced superior reasons to warrant this court exercising its discretion in their favour.”
With the foregoing, it must be pointed that with the sufficient materials at the disposal of the lower court, the court in the use of same had remarkably complied with all those requirements on the basis of which by many judicial authorities injunctive reliefs are granted.
Appellants have neither sustained the allegation of perversity made against the exercise by the lower court of its discretionary powers, nor shown what injustice the grant of the order had caused them. In consequence, their appeal must fail. It is accordingly decided that it has.
The respondents are entitled to cost of N3,000.00 which appellants should pay.
Other Citations: (2001)LCN/1013(CA)
