Emmanuel Mmaju & Ors. V. Osita Dinma Egbuchunam (1997)

LawGlobal-Hub Lead Judgment Report

EJIWUNMI, J.C.A.

This appeal is against the refusal of the lower Court to make an order of interlocutory order of injunction in their favour. Before the Onitsha High Court within the Onitsha Division of the Anambra State High Court, the plaintiffs commenced this action in Suit No. 0/172/85 against the defendant. The plaintiffs by their writ of Summons are claiming declaratory reliefs for the Customary Right of Occupancy in respect of Mmaju land lying, situate and being at Ogidi Ana Etiti Ogidi, N1,000,000 (One million Naira) being general damages for trespass, perpetual injunction.

The plaintiffs thereafter filed a motion on notice dated 23rd March, 1995 for an interlocutory order of injunction restraining the defendant/respondent, his servants, agents, privies and workers from further committing acts of trespass on their land described above in Suit No. 0/172/95. But before that motion could be heard the plaintiffs moved the court by an exparte motion dated 30th March 1995, obtaining an interim order of injunction against the defendant on the 31st March 1995. Following that order, the earlier motion on Notice for an order of Interlocutory injunction was heard by the learned trial Judge, Amaizu J. Having heard the addresses of learned counsel appearing for the parties, delivered a considered ruling, wherein the earlier order of interim injunction made in favour of the plaintiffs was discharged. The order of interlocutory injunction sought for by application made in that regard was refused.

Being dissatisfied with that order of the lower court, the plaintiffs have appealed to this Court. Pursuant thereto, three grounds of appeal were filed. In accordance with the Rules of this court the parties filed and exchanged Briefs of Arguments. At the hearing before us, learned counsel who appeared for the parties, namely, S.O.P. Okeke Esq., for the plaintiffs now appellants, and Chief O. Ugolo, for defendant, now respondent, adopted their respective briefs. Before then, the learned counsel to the respondent had filed a notice of preliminary objection. The ground of his objection being that the 2nd & 3rd grounds of appeal are incompetent and should be struck out. The learned counsel to the appellants readily agreed with the grounds of objection raised. He therefore conceded that they are incompetent.

The Court then struck out the 2nd and 3rd grounds of the appeal. The argument canvassed in their favour was also struck out from the appellants’ brier. The argument advanced in respect of them in the respondent’s brief was similarly struck out.

The resulting effect of the preliminary objection is that the appellants are left with only one issue for the determination of their appeal. It is whether the lower court acted correctly in not considering the factors necessary for granting or refusing an interlocutory injunction before it refused the application of the appellants. The learned counsel to the appellants for that purpose referred to several of the leading authorities dealing with the principles that should guide a court when considering whether to grant or not to grant an Order of interlocutory injunction. Those authorities would be considered as deemed fit later.

The other submission made for the appellants is that the learned trial Judge failed to give due consideration to the facts deposed to in the affidavit filed in support of their application. For that reason their case that the land in dispute being family land cannot be properly sold without the consent of the head of their family, of which the 1st appellant is. Furthermore their denial that they had not sold the land in the circumstances claimed by the respondent. Furthermore, those who claimed to have sold the land to the respondent did not possess such rights. Indeed, they contend that if their reply to the counter-affidavit filed by one Ifeanyi Mmaju had been properly considered, the claim set up by the said Ifeanyi Mmaju would have been seen as false.

The respondent, by his learned counsel contends that the order of interlocutory injunction was properly refused by the lower court. He therefore urges that the order be not reversed.

It is convenient at this point to re-state, what are now settled as the guiding principles that a court should bear in mind in the consideration of an application for interlocutory injunction.

(1) The plaintiff must show an existence of a right which needs to be protected in the interim and the court should be satisfied that there is a real question to be tried in the substantive case.

(2) The court then considers whether if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant’s continuing to do what was sought to be enjoined between the time of the application and the time of the trial.

(3) If damages in the measure recoverable at law would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted however strong the plaintiff’s claim may appear to be at that stage.

(4) If otherwise damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the court should then consider whether in case the defendant were to succeed at the trial in establishing his right to do that which was sought to be enjoined, he would be adequately compensated under the plaintiff’s undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial.

(5) If damages would be an adequate remedy and the plaintiff would be in a financial position to pay, there would be no reason in this regard to refuse an interlocutory injunction.

(6) It has long been established that where any doubt exists as to the plaintiffs right or if his right is not disputed but its violation is denied, in determining whether an interlocutory injunction should be granted the court takes into consideration the balance of convenience to the parties and the nature of the injury which the defendant, on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right, and that which the plaintiff, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right. See Sweat v. Shaw (1839)8 LJ Ch 216 at 218; Ladunni v. Kukoyi & Ors (1972) 1 All NLR 133 at 136 (Part 1) per Coker JSC.

(7) A further point to be made is that the extent to which the disadvantages to each party would be incapable of being compensated in damages in the event of his succeeding at the trial is always a significant factor in assessing where the balance of convenience lies. It is, however, where there is doubt in any event as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises: See American Cyanamid v. Ethicon Ltd (1975) I All ER 504 per Lord Diplock; Egbe v. Onogun (1972) 1 All NLR (Pt.1) 95 at 98; Obeya Memorial Hospital V. Attorney- General of the Federation & Anor (1987) 3 NWLR (Part 60) 325 at 338.

It is interesting to also note that as long ago as 1961, Madarikan J., (as he then was) had when sitting at the Akure High Court in Akinlose & Ors v. A.I.T. Limited and Ors (1961) WNLR 116 at 117 had stated succinctly the principles that ought to be applied in the resolution of the issue of balance of convenience, thus:-

“In deciding whether to grant an interlocutory injunction in this case, I ought to take into consideration the balance of convenience to the parties and the nature of the injury which the defendants, on the one hand, would suffer it the injunction was granted and the case is subsequently decided in their favour, and that which the plaintiffs, on the other hand, might sustain if the injunction was refused and they should ultimately obtain judgment in their favour.”

These principles formidable as they appear are not intended to deter, but to encourage the court to look critically and carefully at what, in most cases would be the conflicting claims of the parties in respect of an application for the order of interlocutory injunction. It follows therefore that before the order is made the court must be satisfied that the applicant has a triable issue, and that having regard to the principles enunciated above the justice of the case would be met by the order of injunction being made in favour of the plaintiff who applied for the order. Being an exercise of the discretionary power of the court, the court is called upon in addition to exercise that discretion judiciously and judicially.

Reverting to the case in hand, the question that the court had to resolve fell into a rather simple compass. The question being whether it is satisfied that the appellants, upon the affidavit evidence are entitled to the prayer for the order or interlocutory injunction. It is the case of the appellants that the land in dispute is part or a huge area of family land and that they are the only persons entitled to sell the land. That in that capacity no portion of the land in dispute had been sold by them to anyone including the respondent. The alleged sale of a portion of it to the respondent is denied as being family land, and which has not been partitioned from when they inherited it, no one can sell validly any portion of same. The respondent’s case obviously depends on the validity of the sale of the land to him, having regard to the affidavit evidence filed by him and the Deed of Conveyance allegedly conveying the portion of the appellant’s land sold to him.

The learned trial Judge had those facts before him, and it seems to me with due respect, that if the principles adumbrated above had been considered in the light of that evidence, his conclusion might have been different. It is my view therefore that the lower court ought to have made an order of interlocutory injunction in favour of the appellant). Bearing in mind also the contention of the respondents, I think also that the appellants should also be ordered to give an undertaking.

In the result, the ruling and orders of the lower Court are set aside. In its place, an order of interlocutory injunction is made against the respondent, his agents, privies and servants restraining them from entering the land in dispute until the determination of the substantive case. The appellants are hereby also ordered to enter into an undertaking in the sum of N 100,000.00. The appellant is awarded cost in the sum of N1, 000.00 only.

Other Citations: (1997)LCN/0303(CA)