Eyo Okon Eyo V. Chief Akinwunmi Ricketts (2003)

LawGlobal-Hub Lead Judgment Report

RAPHAEL OLUFEMI ROWLAND, J.C.A.

This is an appeal against the Ruling of Eneji, J. of the Cross River High Court sitting in Calabar Judicial Division delivered on 9th day of August, 2001. The Court granted an interlocutory order of injunction restraining the Appellants from trespassing or continuing to trespass and to stop committing any other acts of trespass in any other form on the land pending the determination of the suit.

The facts of the case as borne by the records run thus:

The 1st Appellant applied for a plot of land from 2nd Appellant in 1992. The 2nd Appellant after processing the 1st Appellant’s application offered him a lease of the land in dispute on the 17th September, 1993, the offer was accepted by the 1st Appellant by making payment.

On the part of the Respondent, he also claimed to have been given a provisional offer of lease of the same plot by the 2nd Appellant in 1997 four years after the 1st Appellant claimed that he was allocated the plot. The 2nd Appellant stated that the plot was provisionally offered to the Respondent in error.

The Respondent then applied for interlocutory injunction restraining the Appellants from trespassing into the Land. The learned trial Judge granted the application in toto. The 1st Appellant and the respondent derive their title from the 2nd Appellant but the 2nd Appellant stated that it made the offer to the Respondent in error and that the 1st Appellant had been in an undisturbed possession. The 1st Appellant is said to have built a three building on the land. The Respondent also claimed to have built a fence on the land. As I have adumbrated above the Court below granted an interlocutory injunction in favour of the respondent. Dissatisfied with the decision of the lower court the appellants have brought this appeal to this Court on a number of grounds of appeal.

From the grounds of appeal the appellants raised three issues for determination.
They read:
“1. Whether the learned trial Judge in his ruling did not decide the main issue in the substantive suit without hearing and said the status quo be maintained.
2. Whether the learned trial Judge was right in holding that monetary compensation will not be adequate and then grant interlocutory injunction when pecuniary damages is claimed in the main suit.
3. Whether the learned trial Judge judiciously and judicially exercised his discretion in holding that the balance of convenience this in favour of the respondent and also failing to undertake to pay damages.”

The respondent formulated one lone issue for determination as follows:
“1. Whether the learned trial Judge upon the evidence before him exercised his discretion judicially and judiciously based on the relevant principles and considerations for the grant or refusal of interlocutory injunction.”

On the 1st issue for determination, the learned Counsel for the appellants in their counter affidavit stated that the 1st appellant has been in undisturbed possession of the land in dispute from 1993 as evidenced in his allocation letter. According to Counsel for the 1st appellant the 1st appellant built the fence and he is therefore not a trespasser. It was contended that the ruling of the learned trial Judge has decided the issue in the substantive suit without any clear cut evidence.

Learned Counsel for the appellant also submitted that the prayer for the interlocutory order is similar to the one in the substantive suit. That is the more reason why the court ought not to have granted the application rather should have ordered accelerated hearing as requested by the appellants it was submitted.

It is the contention of the appellants that the respondent in his affidavit admitted that the appellant was in possession of the land and building on the land. It was contended that in spite of this clear admission of fact the learned trial Judge still restrained the appellants in order that the status quo ante be preserved.

The respondent’s brief did not answer issue No.1 in the appellant’s brief. The only issue formulated by the respondent is akin to issue No.3 in the appellants’ brief. I have read carefully the ruling of the learned trial Judge and I am convinced that the said ruling has decided the issue in the substantive suit without any clear cut evidence. The ruling adjudged the appellants trespassers and found that the respondent is the owner of the land in dispute without clear cut evidence before him. It seems to me therefore that the decision of the lower court was not judicious. See the case of Okpokiri v. Okpokiri (2000) 3 N.W.L.R. (pt 649) 461 at 472 per Edozie J.C.A. (as he then was).

He said:
“A court should be wary not to decide the main question or issue in the substantive suit while dealing with an interlocutory application for injunction or any other interlocutory application otherwise the court would be acting in violation of the right of fair hearing, that is, audi alterem pert em principle of natural justice. In the instant case, the substantive issue between the parties is the ownership of the property in dispute and this issue calls for determination only after due trial.

The learned trial Judge in his ruling on the respondent’s application for injunction however held that the respondent was the owner of the property in dispute. In the circumstances, the trial Judge had determined the main issue in the suit without a hearing and in breach of Appellant’s fundamental and constitutional right to fair hearing and the entire proceedings including the ruling of the trial Judge is a nullity.” See Nigerian Civil Service Union v. Essien (1985) 3 N.W.L.R. (pt 12) 306.

It seems to me that it is immaterial that the prayer for the interlocutory Order is similar to the one in the substantive suit that is the more reason why the Court ought not to have granted the application rather should have ordered accelerated hearing as requested by the appellants. See Ogbonnaya v. Adapalm (Nig) Ltd. (1993) 5 N.WL.R. (pt 292) 147; F.A.T.B. v. Ezegbu (1993) 6 N.WL.R. (Pt 297) 1; Onwuegbu v. Ibrahim (1997) 3 N.W.L.R. (pt 491) 110.

In Okpokiri v. Okpokiri (supra) Edozie J.C.A. (as he then was) said further:
“If a motion seeks an Interlocutory Relief which is substantially the same as the relief in the substantive matter, the best course for the trial court is to adjourn the Interlocutory application and accelerate the hearing of the substantive suit.”

The Respondent in his Affidavit admitted that the Appellant was in possession of the land and building on the land. In spite of this clear admission of fact the learned trial Judge still restrained the appellants in order that the status quo ante is preserved.

I am of the view that maintaining the status quo means keeping the situation of things as they were as at the time. The 1st Appellant embarked upon the activities sought to be restrained. Further, the granting of an interlocutory injunction as a result of which possession would be transferred from the 1st appellant to the respondent will be contrary to the principles of maintaining status quo in the case until the determination of the suit. See Queen v. Adaroh (1999) 1 N.WL.R. (pt. 586) 330; Oduntan v. General Oil Ltd. (1995) 4 N.W.L.R. (pt 387) 1; Ayorinde v. Attorney-General Oyo State (1996) 3 N.W.L.R. (pt 434) 20.

In the case in hand the overland of the respondent and the 1st Appellant confirmed the possession status of the 1st appellant and yet the learned trial Judge ordered that status quo ante be preserved and restrained the 1st appellant who has been in possession of the land for four years before the respondent claimed that the land had been allotted to him.

I now move on to the second issue for determination. The learned Counsel for the appellants said that the respondent in his submission to the lower court claimed that he will suffer irreparable damage if the order of interlocutory injunction is not given and that monetary compensation will be inadequate. This in spite of a claim for pecuniary damage of N50, 000,00 (Fifty Million Naira).

It was submitted for the appellants that where pecuniary damage is claimed in the main, interlocutory order of injunction should not be granted. It was submitted that the reason for this is that one of the main conditions for the grant or refusal of interlocutory injunction is that damages cannot be adequate compensation for the damages or injury if he succeeds at the end of the day.

I must point out that the respondent did not formulate any issue in the respondent’s brief akin to issue NO.2 in the appellant’s brief. I must say that it is manifest from the records that in the case in hand the respondent made a whooping claim of special and general damages of Fifty Million Naira (N50, 000,000.00). In the circumstances, the lower court to my mind, ought not to have granted the respondent the interlocutory order of injunction as this matter is a clear case where damages is claimed which invariably means damages can compensate the respondent if the need arises.

The last issue for consideration in this case is issue No.3, which is, whether the learned trial Judge judiciously and judicially exercised his discretion in holding that the balance of convenience is in favour of the respondent and also failing to undertake to pay damages.

It was submitted that the 1st appellant in his counter affidavit, statement of defence and the respondent in his affidavit and statement of claim all state that the 1st appellant has put up a structure on the land and therefore in the circumstances of this case an interlocutory injunction will work hardship on the 1st appellant.

As I have said above, the respondent in his brief framed only one issue for determination in this appeal. It is whether the learned trial Judge upon the evidence before him exercised his discretion judicially and judiciously based on the relevant principles and considerations for the grant or refusal of interlocutory injunction. This issue of the respondent is one and the something with issue NO.3 in the appellants’ brief. The respondent contends that the trial Court weighed the competing interest of the appellants and the respondent and in time with the relevant principles for the grant of interlocutory injunction found as a fact that this case is one deserving of the grant of an order of interlocutory injunction. It was submitted for the respondent that an appellate court cannot interfere with the exercise of the right of discretion of a trial court except when it is perverse.

It was contended that the principles upon which the trial Court granted the application for the injunction are well settled in the following cases: Obeya Memorial Hospital v. A.G. Federation (1987) 3 N.W.L.R. (pt 60) 325; Saraki v. Kotoye (1990) 4 N.W.L.R. (pt 143) page 44, Ita v. Nyong (1994) 1 N.W.L.R. page 318. It seems to me that under the modern practice it suffices to say that there are only three questions, which the Court can ask in a matter of interlocutory injunction.

These are:
(1) Is there a serious question to be tried?
(2) If so, will damages be adequate compensation for the temporary inconvenience?
(3) If damages will be inadequate compensation, in whose favour is the balance of convenience?
See American Cynamid Co. v. Ethicon Ltd. (1975) A.C. 396; Obeya Memorial Hospital v. A.G. Federation (1987) 3 N.W.L.R. (pt 60) 325 at 337; Kotoye v. Central Bank of Nigeria (1989) 1 N.W.L.R. (pt 98) 419 at 441.

As I have said above, I have no doubt in my mind that the ruling has decided the issue in the substantive suit before him without any clear cut evidence, this is because he has adjudged the appellants trespassers and found that the respondent is the owner of the land as clearly shown in his ruling restraining the appellants from “continuing further acts of trespassing on the plaintiff’s piece or parcel of land.”

See also the case of Okpokiri v. Okpokiri (supra). It must be said also that a ruling on an interlocutory matter should not render nugatory the substantive suit. See Egbe v. Onogun (1972) 1 All N.I.R. 95 at 98 or (1972) 2 S.C. 146.

I also do not agree with the learned trial Judge in his holding that monetary compensation will not be adequate and then granted interlocutory injunction when pecuniary damages is claimed in the main suit. See pages 37-38 of the records. Although the matter before the lower court has to do with exercise of discretion but this court can interfere if the discretion was not judiciously and judicially exercised. It is manifest from the records that the learned trial Judge did not judiciously and judicially exercise his discretion in holding that the balance of convenience is in favour of the respondent and also failing to undertake to pay damages.

It must be mentioned also that an Appeal Court will normally not disturb findings of facts of a trial court unless such findings are shown to be perverse; See Incar Nigeria Ltd. v. Adegboye (1985) 2 N.W.L.R. (pt 8) 453; M. O. Obasanya v. Ebenezer Nwoko & Anor (1974) 1 All N.L.R. (pt 1) 420 at 428.

From all that I have said hereinbefore in this judgment, it is my conclusion that this appeal is meritorious and it is therefore allowed. I set aside the order of interim injunction restraining the appellants from trespassing on the land which is the subject matter of this appeal. For the avoidance of doubt, I set aside the ruling of Eneji, J. of the Cross River State High Court sitting in Calabar Judicial Division delivered on the 9th day of August, 2001.
I award N5, 000.00 costs in favour of the Appellants against the Respondent.

Other Citations: (2003)LCN/1441(CA)