Francis Morgan Udo V. Incorporated Trustees of Christian Methodist Episcopal Church (2008)
LawGlobal-Hub Lead Judgment Report
THERESA NGOLIKA ORJI-ABADUA, J.C.A.
The Appellant was the Defendant/Respondent in the Motion on Notice filed by the Plaintiffs, now the Respondents, in Suit No. HU/315/2001 at the Akwa Ibom State High Court, sitting at Uyo seeking for an order of interlocutory injunction restraining the Defendant/Respondent whether acting by himself or through any agency, privy or representative, howsoever from further trespassing and or interfering with the Plaintiffs/Applicants’ right, possession and ownership of the piece or parcel of land situated at, and known and called Plot 1, Johnson Street Uyo. The said Motion was supported by the averments contained in the ten paragraph affidavit deposed to by one Mr. Iyakke Ukpong together with Exhibits A-E attached thereto.
The Appellant for his part, at the lower Court, filed a 15 paragraph counter affidavit together with Exhibits A-D attached to it.
The aforestated application was initially moved by the learned Plaintiff’s Counsel, Andem Eyo Esq. in 2002, but, hearing in the motion was not concluded until the 12th August, 2004 whence it was adjourned to 30/11/04 for ruling. However, for some reasons, the ruling was not delivered until the 19th January, 2005. In the ruling, the lower Court then granted the order of interlocutory injunction restraining the defendant, his agents, privy or representatives from further interfering with the land situated at and known as Plot 1 Johnson Street, Uyo, until the determination of the substantive action when the right of both parties will be determined.
Being dissatisfied with the ruling, the Defendant, now the Appellant, filed this appeal which is founded on four grounds and from which five issues were distilled for the determination of this court. They are:
“(1) Whether it was right for the Court below to order interlocutory injunction against the Defendant/Appellant when he has been at all times in possession of the land in dispute since 1978.
(2) Whether the Court below was right when it held that the balance of convenience was on the side of the Plaintiff/Respondent even though it did not controvert the averment of the Defendant/Appellant concerning the intervention by the third party interest before filing the suit.
(3) Whether it was proper in law for the Court below to order interlocutory injunction against the Defendant/Appellant considering the fact that the alleged act of trespass complained of had already taken place before the filing and service of the motion for interlocutory injunction on the Defendant/Appellant.
(4) Whether considering the totality of the affidavit evidence of the parties, was the trial Court right in ordering interlocutory injunction against the Defendant/Appellant when most of his averments were not controverted.”
In turn, the Respondents, in their Brief of Argument, formulated only one issue for determination. It is stated thus:
“Whether having regards to the character of interlocutory injunction as a discretionary remedy, as well as the principles upon which such discretion could be exercised, the learned trial Judge properly considered those principles and judiciously applied them to the facts and circumstances of the dispute between the parties in granting the interlocutory injunction to restrain the Appellant?
Arguing in favour of allowing the appeal, learned Counsel for the Appellant, Patrick Usen Esq., in the Appellant’s Brief of Argument, submitted in respect of issues 1 and 3 that it is against the known principles guiding the Courts in the exercise of their discretion in applications for order of interlocutory injunction, for a party who has been in possession of a land, years before the Applicant purportedly acquired any personal interest whatsoever thereon, and, exercised all acts of possession and ownership which have not been refuted by the Plaintiff, to have an order of interlocutory injunction slammed on his face. He referred to paragraph 13 of the counter affidavit filed by the Appellant at the Court below and stated that the Plaintiffs/Respondents had never been in possession of the land in dispute and the trial Court failed to consider all the principles enumerated in Kotoye v. CBN (2001) FWLR (Part 49) p. 1567 at 1575 ratio 14. Egwuatu v. Egwuatu (1992) 4 NWLR (Part 237) 594. 596. H.3. A-G.; Anambra State v. Okafor (1992) (Part 224) 396. 403 ration 6. Perepimode V. Miekoro (1992) 2 NWLR (Part 224) 483. 485 ratio 3 (Part 143) 144. 149 ratio 12; Akapo V. Hakeem Habeen (1992) 6 NWLR (Part 247) 266. Governor of Lagos State V. Ojukwu (2001) FWLR Part 50 1779. 1788 R.11. 12. 13 & 14.
He further cited the cases of Unibiz Nig. Ltd V. Commercial (Credit Lioness) Bank (2008) ALL FWLR Part 267. 1378. 138 R2. Tunde V. Sampson Roger (Nig.) Ltd (2000) FWLR Part 16. 2782 at 2784 R4. Akapo V. Hakeen Habeem (supra) and Governor of Lagos State V. Ojukwu (supra) Falomo V. Banige (1998) 60 LRCN 4166 at 4172 R5 Sotuminu V. Oceanic Steamship (Nig.) Ltd (1992) 5 NWLR Part 239 p. 11 ration 3. C.B.N. V. Ahmed (2001) FWLR Part 56 p. 670 at 677 ratio 13 and Kadiya V. Kadiya (2001) RWLR Part 70 p. 1585 and urged the Court to set aside the ruling.
On issue No.2, learned Counsel contended that the learned trial Judge did not take into consideration the deposition of the Appellant that he had rented the mechanic workshop on the land in dispute to some other people who were not parties to the suit. He referred to the authority of Ochoma V. Ideozu (2001) FWLR Part 51 1875 at 1878 Ratio 4 where it was stated that the Courts ought to take into consideration third parties interest in their consideration of where lies the balance of convenience. He submitted that the interlocutory injunction granted is capable of disrupting the business of those mechanics who had been renting the land before the institution of the action; therefore, it was not proper for the Court below to have granted the application.
Regarding issue No.4, learned Counsel, submitted that the trial Judge failed to recognize that most of the material averments of the Appellant at paragraphs 4, 6, 7, 8, 9, 10, 11 and 12 were never controverted by the Respondents and that she failed to apply the principle laid down in Orient Bank Nig. Plc V. Bilante Int’l. Ltd (1996) 5 NWLR Part 447 p. 166 at 173 ratio 9 that where such facts were not rebutted or challenged, they ought to have been deemed as admitted. It was also his contention that the learned trial Judge did not take into account the principle of order of ranking competing interests of the parties both in law and equity, i.e, who is earlier in time is stronger in law, as was stated in Labode V. Otubu (2001) FWLR Part 43 p. 2007 at 245 ratio 14. He therefore urged that the appeal be allowed and the ruling of the lower Court be set aside.
Learned Counsel for the Respondent, Chief Anselem Eyo, in the Respondent’s Brief, referred to the provision of Order 33 Rules 1(1) and (2) and 2(1) of the Akwa Ibom State High Court (Civil Procedure) Rules and submitted that an interlocutory injunction can be granted to any party to an action for the preservation of any property which is the subject matter of the action or as to which any question may arise thereon or for the inspection of any such property in the possession of a party to the action. He submitted that the learned trial Judge properly exercised his discretion in applying the law to the facts and was hence justified in granting the interlocutory injunction. Learned Counsel cited the cases of C.G.C. Nig. Ltd V. Alhaji Hassan Baba (2005) All FWLR Part 242 p. 515 at 530 paragraphs B-H, Obeya Memorial Hospital V. A.G Federation (2003)3 NWLR Part 60 p. 325, (wrong citation I presume), the book on INJUNCTIONS AND ENFORCEMENT OF ORDERS BY AFE BABLOLA, SAN, p. 55 of the 2003 Reprint of the 1st Edition, Onyesoh V. Nnebedum (1992) 3 NWLR Part 229 p. 315 at p. 337 paragraph A, Webber George Egbe V. Peter C.A. Onogun (1972) All NLR p. 99, Missini V. Balogun (1968) All NRL 310 Ratio 4 at p. 311 and VEE GEE (Nig) Ltd V. Contact (Overseas) Ltd (1992) 9 NWLR Part 266 p. 502 at p. 515 paragraphs F-G, Kotoye V. CBN (1989) All NLR p. 76, Fadina & Ors V. VEEPEE Industries Ltd (2005) 5 WRN p. 131 and Obeya Memorial Specialist Hospital V. A.G Federation (supra) and submitted that the learned trial Judge considered among other factors:
“(i) the serious issues to be tried in the main action between the parties;
(ii) the legal right or interest which the applicant has in the subject matter and which warranted being protected by the grant of the said interlocutory injunction;
(iii) the irreparable damages that would occur if the actions of the Appellant was not restrained by the said interlocutory injunction and that such damages could not be adequately compensated in monetary terms if the Respondent subsequently succeeded at the end of the trial;
(iv) that the balance of convenience was on the Respondent’s side and that there would be more justice in granting the interlocutory injunction than to refuse it,
(v) that the Respondent undertook as to damages”.
He stressed that at this stage what this Court has to decide is whether the decision of the Judge was right and not whether his reasons were, and, that if the trial court could not be faulted in any way on the score of fairness, the appeal must fail. He then urged that the appeal be dismissed.
Learned Counsel for the Appellant also filed a reply in which he raised various points, which had been noted by this court.
The Respondents, in the said affidavit in support of the said motion narrated how they negotiated allocation of the said piece of land in dispute to them in 1995 with the Uyo Capital City Development and how in 1997 it was allocated to them by the said Authority.
However, in his Counter-affidavit filed at the lower Court, the Appellant categorically stated that the land in dispute did not belong to Uyo Capital City Development Authority, and, that the land was never acquired by Uyo Capital City Development Authority or Governor of Akwa Ibom State, and that no compensation was paid to him.
At paragraph 6, he emphatically stated that he purchased the said land in dispute on or about the 23rd February, 1978 from one Ime Ene Okon of Nung Ukana in Aka Offot, Uyo which was particularly delineated in the survey plan No. ESA/AK/2366. The sale of land agreement executed between him and the said Ime Ene Okon on 23/2/78 and the survey plan were attached to the counter-affidavit as Exhibits A and A1 respectively. He alleged that he had developed part of the land by building mechanic workshops thereon and rented them to other people.
He equally attached as Exhibits Band C respectively, the agreement evidencing his purchase of the adjoining land from one Bassey Etim Ene and the building plan approved for him by Uyo Capital City Development Authority. Equally attached as Exhibit D was the permit dated 26/3/01 granted him by the said Authority to erect fence round the said plot clearly shown in plan No. ESAIAK/2366. The permit was granted after a thorough inspection. He said he had been in possession of the said land since 1978 he purchased it and had been exercising all forms of rights of ownership without any hindrance. He planted food crops such as cassava, plantain, coconut, oil palm trees, etc, and they are still on the land. It was after he had completed his fencing of the land, he was served with the Writ of Summons and Motion on Notion filed by the Plaintiff.
Then, in her ruling, the learned trial Judge after considering all the facts presented via the affidavits, posed the question, “In view of the competing interests of the parties, would it be just to grant or refuse the application for the reason that the defendant/respondent had completed building a fence round the property? As a result, the learned trial Judge held that it will be more just to grant the application than to refuse it until the rights of the parties had been determined. She also stated that the Applicant had a legal right that was threatened. She further held that “the Court is not bound to apply or consider all the factors or principles guiding the grant of an interlocutory injunction but shall apply only those applicable to the case at hand and no more as any two cases are the same”.
It must be emphasized that an application for interlocutory injunction raises the issue of exercise of discretion by the trial Court. The discretion conferred on the Court is not absolute as it is subject to its being exercised judicially and judiciously. The primary duty and objective of the Court in the exercise of its judicial discretion must be to attain substantial justice. The interests of both parties must be considered along with peculiar facts and circumstances of the case in order to arrive at a just and fair decision. It is then the Court can truly be said to have exercised its discretion both judicially and judiciously in accordance with established principles of law. See United Spinners V. Chartered Bank Ltd (2001) 14 NWLR (Part 732) 195; Akilu V. Fawehinmi (No. 2) (1989) 2 NWLR (Part 102) 122; Eronimi V. Iheuko (1989) 2 NWLR (Part 101) 46 referred to pp. 431-432. paras H-A.
Unless it is shown that the trial Court exercised its discretion wrongfully, arbitrarily, and illegally or mala fide, the exercise of the discretion shall not be interfered with by the appellate Court. It is immaterial that the appellate Court would have exercised the discretion differently. See University of Lagos V. Aigoro (1985) 1 NWLR (Part 1) 143: Ceekay Traders Ltd V. General Motors Co. Ltd (1992) 2 NWLR (Pt 222) 132 referred to (P. 434. paras F-H1. Therefore, an appellate court would not interfere with an exercise of discretion by a trial court on the ground that it might have exercised it differently if it were in a position to do so. However, the appellate court is entitled to interfere with an exercise of discretion by a trial court if it is satisfied that it is in the interest of justice to do so. Apart from the rules and principles for the grant of the discretion sought, the court is also required to consider the doing of justice and equity to both parties under the circumstances of the case. Interlocutory injunction is concerned principally with the protection of the res and maintaining the status quo. It is only where the subject matter will be permanently destroyed and cannot be recovered or replaced or be completely distorted or defaced that an order of interlocutory injunction will be appropriate to maintain the status quo until the final determination of the substantive suit. The status quo to be maintained by the grant of an order of interlocutory injunction is the status quo ante bellum i.e., the state of affairs before the beginning of hostilities and not the status quo ante litem, which is, the state of affairs before the parties began to litigate.
In Adewale V. Gov. Ekiti State (2007) 2 NWLR Part 1019 p. 634, it was held inter alia, that where litigation immediately follows peaceable or peaceful state of affairs or status, the status quo to be maintained by an order of interlocutory injunction is that peaceable or peaceful state or status before the litigation. But where such state has been disturbed or interfered with, resulting in a law suit, the status quo is not the unlawfully created one immediately preceding the suit, but, the original peaceable or peaceful state or status before it was apparently unlawfully altered.
It is imperative to appreciate that the onus of proof is on the applicant to establish that on the affidavit evidence presented by him, it is in the interest of justice in his case and it is desirable in all the circumstances of the case that the interlocutory injunction being sought by him to issue.
In Buhari V. Obasanjo (2003) 17 NWLR Part 850 p. 587, Niki Tobi JSC held as follows:
“In order to enable the court exercise its equitable jurisdiction, the applicant must present convincing facts which in themselves vindicate the well laid principles for granting the injunction as decided in Kotoye V. CBN (1989) 1 NWLR (Part 98) 419 and the group cases. The injunction is not granted as a matter of grace, routine or course. On the contrary, the injunction is granted only in deserving cases, based on hard law and facts.”
It is also instructive to note that a person can only sue for injunction for trespass only if he is in possession. Possession of property or parcel of land means the occupation or physical control of the property or parcel of land either personally or through tenants, an agent or servant of the claimant. See Enunwa V. Obianakor (2005) 11 NWLR Part 935 p. 100 where Nitel Plc V. Rockonoh Prop. Co. Ltd (1995) 2 NWLR Part 378 p. 473 was referred to. So once a plaintiff has established that he is in possession of the land in dispute, an order of injunction would naturally flow to protect his possession unless the defendant proves a better title. See Cobham V. Duke (2004) 2 NWLR Part 856 p. 150.
It follows, therefore, that at the interlocutory stage there must be some evidence of possession which the court accepts before an order of interlocutory injunction can be made, and the proof of possession need not be conclusive at interlocutory stage. It is on the evidence of possession and trespass that the Court can hang an order of interlocutory injunction if the case is an appropriate one for the order. If an applicant for interlocutory injunction in a case for trespass to land does not depose to the fact that he was in possession of the land, then he has not made out a case that he has legal right that is being threatened and therefore has not got over the first hurdle. See Agba V. B. H. Holdings Ltd (1998) 1 NWLR Part 535 p. 696 at 708.
In the instant case, since the issue as to who has a better title can only be established at the trial, the trial court ought not to have granted an interlocutory injunction in favour of the Respondents who were never shown to have been in possession of the land.
The right of an applicant for injunction which would be protected by the grant of the order is the rights existing with regard to the state of things prevailing before the acts complained of by the applicant. The right of the Respondent in the present case had not even accrued as at the time the Appellant’s interest to the land matured.
It is, also, an established principle of law that the granting of an interlocutory injunction as a result of which possession would be transferred from the party in possession to the opposite party will be contrary to the principle in maintaining status quo in the case until the determination of the suit. Kotoye V. C.B.N (supra), Queen V. Adaroh (1999) 1 NWLR Part 586 p. 330 at 338, Registered Trustees of the Peoples Club Of Nigeria V. The Registered Trustees of Ansar-Ud-deen Society (2000) 5 NWLR Part 657 p. 368.With regard to what the learned trial Judge stated was the correct approach in considering the factors, i.e., that the courts are not bound to consider all the long aged principles enunciated in the Supreme Court cases of Obeya Memorial Specialist Hospital V. A.G. Federation (1987) 3 NWLR Part 60 p. 325 and Kotoye V. Central Bank of Nigeria (1989) 1 NWLR Part 98 p. 419, I must state that the Supreme Court had, in a plethora of cases, held that in hearing an application for interlocutory injunction, the Court must consider the following factors in order to decide whether to grant or refuse the application. They are:
“1. There must be a subsisting action. The subsisting action must clearly donate a legal right which the applicant must protect;
2. The applicant must show that there is a serious question to be tried, i.e., that the applicant has a real possibility, not a probability of success at the trial, notwithstanding the defendant’s technical defence (if any);
3. The applicant must show that the balance of convenience is on his side, that is, that more justice will result in granting the application than in refusing it;
4. The applicant must show that damages cannot be adequate compensation for the injury he wants the court to protect, if he succeeds at the end of the day;
5. The applicant must show that there was no delay on his part in bringing the application;
6. The applicant must make an undertaking to pay damages in the event of wrongful exercise of the court’s discretion in granting the injunction. So, no order for an interlocutory injunction should be made on notice unless the applicant gives a satisfactory undertaking as to damages save in recognized exceptions. Where the court of first instance fails to extract an undertaking as to damages; an appellate court ought normally to discharge the order of injunction on appeal”.
See Akinpelu V. Adegbore (2008) 10 NWLR Part 1096 p. 531, Buhari V. Obasanjo (2003) 17 NWLR Part 850 p. 587, Obeya Memorial Specialist Hospital V. A.G Federation (1987) 3 NWLR Part 60 p. 325, Kotoye V. C.B.N (1989) 1 NWLR Part 98 p. 419, e.t.c.
Having restated the principles, it is wise at this juncture to examine the ruling of the learned trial Judge to ascertain whether the discretion she exercised was in accordance with the laid down principles.
I must, however, mention, that it is desirable that all the factors be considered by the court of first instance because an applicant may succeed on the question of serious triable issue, on the existence of a legal right or the balance of convenience, but, may fail on the issue of delay or that his conduct may be so reprehensible that it may be unjust to allow him to get away with an order of interlocutory injunction. And, as was stated in Akinpelu V. Adegbore (supra) if the court of first instance did not extract an undertaking as to damages, the appellate court may discharge the order made on notice.
It is indisputable from the available facts before the lower court that after the alleged purchase of the land in dispute and the one adjoining it, by the Appellant on the 22nd February, 1978 and 30th February, 1978 from Ime Ene Okon and Bassey Etim Ene respectively, the Appellant went into immediate possession of the lands. He had erected some mechanic workshops thereon and had the same rented out to third parties. He had also been cultivating on the land without any let or hindrance.
On the other hand, the Plaintiffs averred that the said land was allocated to them only in 1997, that is to say, after about 19 years; the Appellant had presumably been in possession of the land, and, with the existence of third parties thereon. It is also curious that it was the same Uyo Capital City Development Authority which allegedly allotted the said piece of land to the Plaintiffs that granted the Appellant permission to erect a fence round the same land in 2001.
Be that as it may, it is instructive to note that the Respondents, at no paragraph of the affidavit in support of their Motion on Notice for the interlocutory injunction, mentioned that they took immediate possession of the said land after it was allocated to them. They merely averred that they made further payment to the authority to secure the land and erect fence thereon.
It was in the face of these facts that the learned trial Judge on the issue of balance of convenience, held that it will be more just to grant the application than to refuse it until the rights of the parties are determined.
The principle governing determination of balance of convenience is that if the position is such that the applicant will suffer inconvenience more than the respondent if the order for interlocutory injunction is refused then the court will make the order. But if the applicant will not suffer any inconveniences or if the respondent to the application will suffer more inconvenience than the applicant if the order is made, then in such a case the order will not be made, See Peter V. Okoye (2002) 3 NWLR Part 755 p.529.
It is a well established principle of law that hardship to the Defendant is a relevant consideration in the cases of injunctions. It is particularly of more insignificance and weight in cases of interlocutory injunctions than in those of final or permanent injunctions. Where hardship will be caused to the Defendant or indeed to third parties or to members of the public by the grant of the relief, this consideration will be taken into account by the court in determining whether it is just and convenient that an interlocutory injunction should issue and court of equity will not ordinarily and without special necessity interfere by injunction where this will have the effect of very materially injuring the rights of third persons not before the court. So even if there is no hardship to the defendant, an injunction may be refused if it would prejudice an innocent third party. See the case of Hartlepool Gas and Water Co. V. West Hartleoool Harbour and Railway Co. 1865 12 67 p. 366 at 368.
Now, in the instant case, if the facts of the existence of third parties’ interests on the land in dispute were clearly displayed by the defendant in his counter-affidavit as were stated and which were never debunked by the Applicants, the question is; where then laid the justice in granting an interlocutory injunction against the interests of these human beings (mechanics) who had taken up those workshops on rent from the defendant?
As I earlier observed, the Respondents never stated that they went into possession of the said property after the alleged allocation of it to them by the said Authority. So, if it were, as clear as crystal, before the lower Court, that the Defendant had since 1978 been in possession of the land, had exercised several acts of possession, by erecting some stores thereon and renting the same to third parties, the next question is, on what premise did the trial court conclude that the balance of convenience tilted in favour of awarding the order of interlocutory injunction than in refusing it?
The Respondents sought for an order restraining the Appellant through his agents, privies or representative from further trespassing and or interference with the Plaintiffs right, possession and ownership of the said piece or parcel of land.
The facts laid before the lower court point irresistibly to the situation that long before the Respondents approached the said Uyo Capital City Development Authority for allocation of the said land to them, or even before their rights came into existence or materialized the Appellant had already purchased the lands from two different vendors and entered the same and taken possession of them. So, how could the Defendant/Respondent have been restrained from further trespassing on the land he had taken possession of before the said land was allegedly allocated to the Respondent by Uyo Capital City Development Authority?
It seemed clear that the acts, in respect of which the Plaintiffs/Respondents had sought for the said order of interlocutory injunction, had in fact taken place ever before the existence of the alleged trespass over the property. That being the case, it follows that the only thing remained for the trial court to do in the circumstances of the case was to have waited to declare the concluded acts of entry into the land and erection of the fence and mechanic workshops null and void, if the Plaintiffs succeeded in their claims.
It is the law that when a court is asked to restrain a party from doing an act pending the decision in a matter before it, but the act has been done, no order to restrain will be made. This is so because what is sought to be prevented had happened. In other words an interlocutory injunction is not a remedy of an act which has already been carried out, and will not be granted where the act complained of is irregular. For instance in Ideozu V. Ochoma (2006) 4 NWLR Part 970 p. 364 where the action was commenced on 7/11/91, and it was shown that the 1st Respondent was conferred with the title of Nyi-nwe-ele of Ahoada since 1981 and had continued to act in that capacity pursuant to Ekpeye native law and customs, the Supreme Court held that the trial Court was therefore wrong to have granted an interlocutory injunction in the circumstances of the case.
Furthermore, it was not shown in the affidavit in support of the Motion on Notice at the lower Court the date the alleged trespass took place or was observed, so as to ascertain if the Respondents were guilty of delay in the application as not to be entitled to the order sought.
It is, therefore, clear to me that the learned trial Judge had not applied the correct principles which would have enabled her to come to the right decision whether the Appellant would have suffered more hardship than the Respondent who has never been in possession of the land. This led to the serious error of her not realizing that the cause of justice will be better served by leaving the parties in status quo ante bellum and refusing the motion for interlocutory injunction, due, also, to the interest of the third parties on the land.
Curiously, the order granted actually amounted to putting the Respondents who were never in possession of the land into possession. That is certainly against the principles of law in considering an application for an interlocutory injunction.
It is in the light of the above, I am of the firm conclusion, that there is sufficient evidence from the affidavit before the lower court to show that the balance of convenience was not in favour of granting the application, that it titled in favour of the defendant.
In the circumstance, this appeal therefore succeeds. The Ruling of Philomena Etim J, of the High Court of Akwa Ibom State, delivered on the 19th January, 2005 is hereby set aside. In its place the Motion on Notice for an order of interlocutory injunction is hereby refused.
There will be no order as to costs.
Other Citations: (2008)LCN/2993(CA)
