George Okechukwu Enwezor V. Withech Industries Limited & Ors (2008)

LawGlobal-Hub Lead Judgment Report

MOHAMMED LADAN TSAMIYA, J.C.A.

This is an appeal against the ruling of Anambra State High Court sitting in Onitsha Judicial Division, delivered on 29/9/2005. Proceedings culminating in this appeal commenced with suit No. 0/623/2004 filed in Anambra State High Court (here in this judgment referred to as the trial Court) on 30/11/2004 whereby the plaintiff therein sought against the defendant, reliefs adumbrated in paragraph 18 of the statement of claim to the following effect:

“18. WHEREFORE the plaintiff claims as follows:

(a) A declaration that the purported Deed of Assignment executed between the 1st and 2nd defendants with respect to No.12 D Bright Street, Onitsha is null and void and of no effect.

(b) Possession of the said ground floor and 1st floor of No.12D Bright Street, Onitsha.

(c) An order Compelling the 3rd – 9th defendants and all the tenants in the premises to pay rent to the Plaintiff from 30th October 2004.

(d) N16 Million Naira damages from the 1st and 2nd defendants for breach of covenant.

In reaction to the above claim the 3rd – 9th defendants filed what they titled a Notice of Admission, stating therein that they have no answer to the statement of claim filed by the plaintiff. The 1st and 2nd defendants did not file a statement of defence yet. Before the hearing of the suit, the plaintiff, on 30/11/2004 filed a motion on notice for interlocutory injunction, formulated in the followings:

(1) An order of Court restraining the 1st defendant either by themselves, their agents, privies and assigns howsoever called from demanding rent or any type of gratification whatsoever from the 3rd-9th defendants and all the tenants of NO.12D Bright Street Onitsha pending the hearing and determination of this suit.

(2) For such further or other orders as this Honourable Court shall deem fit to make in the circumstance.

In support of the motion, the plaintiff swore to an affidavit of 18 paragraphs in line with the essential facts pleaded in the statement of claim. The more pertinent paragraphs of the supporting affidavit read as follows:

I, GEORGE OKOCHUKWU ENWEZOR, Christian and Nigerian Citizen of No. 12D Bright Street, Onitsha, do hereby make Oath and state as follows:

(4)That without our knowledge and consent and in a flagrant breach of both the specified and implied covenants the 2nd Defendant assigned her interest in the property to the 1st Defendant. (A copy of the Deed Executed by them is hereto annexed as Exhibit 2).

(5)That the said Deed made at the back of the plaintiff/Applicant does not state a commencement date and does not state the consideration all in the bid to hide the transaction from the plaintiff.

(6)That suddenly by letter dated 18th October, 2004 Solicitor to the 2nd Defendant addressed a letter to tenants in the premises represented by the 3rd to 9th Defendants/Respondents to effect that the 2nd Defendant has transferred her interest in NO.12D Bright Street to the 1st Defendant. (A copy of the letter is hereto annexed as Exhibit 3.

(7) That by another letter dated 25th October, 2004 written by CHIDO BUSINESS VENTURES a firm owned by MR. CHIDOZIE NWANKWO, the Managing Director of the 1st Defendant the tenants in the premises were asked to come and pay 2 months arrears. (A copy of the letter is hereto annexed as Exhibit 4.

(8) That by letter dated 29th October, 2004 addressed to the Managing Director of the 1st Defendant and copied to all the tenants in the premises including the 3rd to 9th Defendants the plaintiff warned the 1st Defendant he had purchased nothing but a law Suit. (A copy of the letter is hereto annexed as Exhibit.5).

(10) That if the tenants pay rent to either the 1st or 2nd defendant it will be impossible for me to be compensated at the end of the Case.

(11) That the 2nd Defendant has no interest in the premises any more as she has collected money from the 1st Defendant (sic)left the scene.

(13) That this property, houses the plaintiff and his family at the top Floor and also the family of the plaintiffs late senior brother ERIC IFEANYI ENWEZOR.

(14) That all the arrears of the 2nd Defendant obligations have not been paid to the plaintiff who has reversion to the property.

(15) That I under take to pay any damages that will occasion to the Defendants if the order for interlocutory injunction is made and it later turns out, it(sic) not have been made.

(16) That the 1st and 2nd Defendants have nothing to lose if this Application is granted.

In Opposition to the motion, the 1st defendant through her Managing Director (Mr. Chidozie Nwankwo of NO.2 Sokoto Road Onitsha) swore to 13 paragraph affidavit vehemently opposing the said motion on notice. The material paragraphs of the Counter-affidavit read as follows:-

(4) Paragraphs 4, 5, 9, 10, 11, 12, 13, 14, 16, 17 and 18 of the affidavit in support of the motion are denied.

(5) Hope Ogugua Ozor Esq Counsel to the 2nd defendant/Respondent informed me and I verily believed him as follows: i.e. that

(a) The 2nd defendant/Respondent had a lease agreement in 1972 for a term of sixty (60) years with Messrs Eric Ifeanyi Enwezor and George Okechukwu Enwezor for the erection of a three floor story building (Ground floor and 1st and 2nd floors at No. 12D Bright Street Onisha.

(b) The 2nd defendant/Respondent then erected a three floor story building as described above at NO.12D Bright Street Onitsha.

(c) Messrs Eric Ifeanyi Enwezor and George Okechukwu Enwezor were given the last floor and one shop on the ground floor by the 2nd defendant/Respondent while the 2nd defendant retained for its use and benefit 1st floor and the ground floor except one shop. See Exhibit “1” attached to the Applicants affidavit in support of motion dated 30th day of November 2004.

(d) The 2nd defendant/Respondent was paying its annual rent regularly to the plaintiff/Applicant who issued receipt to 2nd defendant up to the year 2002 -2003.

(e) The 2nd defendant paid the annual rent for the year 2004 to the plaintiff who promised to issue receipt to the 2nd defendant but failed to issue the receipt and instituted this suit against the 2nd defendant and other defendants.

(f) The 2nd defendant also paid its property rates regularly to Onitsha North Local Government. Copies of the receipts for the payment of property rates for the years up to 2004.

(g) The 2nd defendant informed the plaintiff/Applicant who gave his consent of its intention to assign its unexpired residue to the 1st defendant despite the fact that the lease agreement does not contain a clause to that effect.

6. The 2nd defendant/Respondent then introduced me to the plaintiff and he gave his consent for the assignment to us. We also gave the plaintiff the sum of N50,000.00 (Fifty Thousand Naira), two cartons of wine and kolanuts and the plaintiff (GEORGE OKECHUKWU ENWEZOR) voluntarily accepted them happily as consideration for the assignment.
7. The plaintiff who has no means of Livelihood then developed the habit of borrowing money frequently from me almost on weekly basis, N30,000.00, N50,000.00 etc.
8. It was when I refused to grant further money as loan to the plaintiff after the N75,000.00 loan which is the only one covered by agreement that he rushed and filed the instant suit. Copy of the loan agreement for N75,000 is hereby annexed and marked as Exhibit “A”.

10.I am informed by our Counsel and I verily believed him as follows:-

(a) The plaintiff/Applicant has no legal right in the property to be protected until the expiration of the lease agreement.

(b) There is no genuine dispute between the parties to be determined before the Honourable Court.

(c) The balance of convenience is not in the favour of granting this application.

(d) The 1st defendant/Respondent would be prejudiced if the order sought by the applicant is granted.

(e) Monetary damages would be an adequate compensation to the plaintiff in the event of this suit succeeding.

(f) The plaintiff who has no means of livelihood would not be able to compensate the respondents in the event of this suit not succeeding.

(g) It is not in the interest of justice to restrain the 1st defendant from collecting rents from the 3rd-9th defendants and those they are representing as they were all our tenants, paying rents to the 2nd defendant/respondent before the assignment of the unexpired residue of the lease to the 1st defendant/respondent.

(h) The question of whether there was violation of the plaintiffs right to be consulted before assigning the unexpired residue of the 2nd defendant cannot be determined at this stage but at the substantive suit.

(i) The relief in the instant application has the same substratum with the relief in the substantive suit.

(k) The 1st defendant is not a trespassers to the property and was legitimately assigned the unexpired residue of the 2nd defendant’s interest in the said property.

12. It is not in the interest of justice to grant this application.

The 3rd defendant on behalf of the 4th – 9th defendants, also in support of the motion, swore to 7 paragraph affidavit. The material paragraphs of the Affidavit read as follows:

I, JOSEPH OWOH, Christian, trader and Nigerian Citizen of No.12D Bright Street Onitsha, do hereby make Oath and state as follows:

(2) …

(4) That it is proper for the court to grant the Application so that at the end of the day who ever wins the case out of the plaintiff and the 1st and 2nd Defendants will be paid by us.

(5) That unless the court intervenes now, we may pay rent to the wrong person which may never be recovered so my counsel Emeka Nwite Esg told me and I verily believed.

(6)That we shall suffer incalculable damage unless the order for interlocutory injunction is granted.

In reply to the 1st and 2nd defendants’ Counter-affidavit, Further-Affidavit of 9 paragraphs was filed on behalf of the plaintiff/appellant. The material paragraphs are contained on pages 39-40:

1. That I am a Law Secretary in the Chambers of IKENNA EGBUNA ESQ, the Solicitor to the Plaintiff in the above case.
2. That by virtue of my position, I am conversant with the facts of this case.
3. That the Plaintiff told me and I verily believe him that paragraphs 5 (d) to (g), 6 to 10 of the Counter – Affidavit of the 1st Defendant are false and only made to mislead the Court.
4. That the 2nd Defendant abdicated in trust in the property and first attempted to sale to Chief Mike Arch which the Plaintiff resisted and they undertook not to enter into any such transaction again so the plaintiff told me and I verily believe him.
5. That the Plaintiff told me and I verily believe him that he did not receive any sum of N50, 000.00 (Fifty Thousand Naira only) two cartons of wine and Cola nuts or any other gift from the 1st Defendant as consent fee.
6. The plaintiff told me and I verily believe him that he never became friends with the Managing Director of the 1st Defendant who is younger than his eldest child and never blessed him for attempting to snatch his property from him.
7. That Plaintiff told me and I verily believe him that he is 76 years. He returned from active service at 60 years and is now dependent on his children and rent from his property and is not in the habit of borrowing weekly either from the Managing Director of the first Defendant or any other person.
8. The Plaintiff told me and I verily believe him that he took a loan of N75, 000.00 from the 1st Defendant who was occupying a shop in his premises before the purported transaction between the 1st and 2nd Defendants. When the Plaintiff went to pay back the money the 1st Defendant Managing Director refused to accept. i (sic) Little did the Plaintiff know he was laying a foundation to reap where he did not sow.
9. That I make this further affidavit in good faith believing the contents to be true and correct in accordance with the Oath Law.

From the plaintiffs claim, as well as the plaintiffs affidavit and further affidavit as well the 3rd – 9th defendants’ deposition in supporting the motion and counter-affidavit opposing motion on notice as adumbrated above, it is manifest that the bone of contention between the parties is the right of possession of property in dispute and the right to rents collectable from the tenants in No.12D Bright Street Onitsha. Each party asserts the said claims thereof and claimed to be the right person to collect the rents payable by the 3rd-9th defendants and other tenants.

It appears that the parties submitted their respective written addresses which each party subsequently adopted. Thereafter the trial court on 29/9/2005 delivered its ruling on the motion on notice for interlocutory injunction and from the record the trial court dismissed the motion for lack of merit.

It is this order dismissing the motion for interlocutory injunction that is the subject matter of this appeal to which four grounds of appeal were filed on 30/9/2005.

The plaintiff and the defendants will hereinafter be referred to as the appellant and respondents respectively.

In pursuance of the appeal, parties by their respective counsel filed and exchanged briefs of argument which they adopted and relied upon at the hearing of the appeal. For the appellant, an appellant’s brief, having been granted extension of time by this court was deemed as duly filed and served with effect from 4/7/2006. The 1st and 2nd respondents’ briefs were deemed as duly filed and served with effect from 12/12/2006 respectively, after obtaining extension of time to file same out of time. The 1st respondent’s brief, however, was withdrawn and struck out on 17/3/2008. The 3rd – 9th respondents filed their joint brief of argument on 6/2/2007 which was out of time, but with the leave of this court their brief was deemed as properly filed and served having obtained an extension of time to file it.

In the appellant’s brief of argument, 3 issues were formulated for determination as follows:-

1. Whether it is right for the learned trial judge to raise the issue of the registration of the Deed of lease suo-motu and upon which he relied in refusing the application for interlocutory injunction without hearing argument from the parties.
2. Whether the learned trial judge was right in making finding of fact from conflicting affidavit without calling for oral evidence.
3. Whether on the facts before the trial Court it properly exercised its discretion in refusing the appellant’s application for interlocutory injunction.

In the 2nd respondent’s brief of argument, however, 2 issues were raised for determination in this appeal.

These are:-

1. Whether an applicant who deposed to and exhibited a document in support of his affidavit can object to the trial Court’s consideration of the document in the determination of the application.
2. Whether the court exercises its discretion judicially and judiciously in the determination of the application for interlocutory injunction.

The last but not the least is the 3rd – 9th respondents’, brief of argument in which two issues for the determination were distilled as follows:-

1. Whether failure of the learned trial judge to evaluate the Counter-affidavit, written address and admission of 3rd-9th respondents amounts to breach of fair hearing to the 3rd-9th respondents.
2. Whether the trial Court exercised its discretion judicially and judiciously in the determination of the application for interlocutory injunction.

Looking at the issues as formulated by both counsel in this appeal, it is very clear that appellant’s issue NO.1 is the same as issue NO.1 of the 2nd and 3rd respondent’s issues respectively. Both issues are identical. The question therein is whether there is breach of fair hearing. Appellant’s issue NO.3 is the same as issue NO.2 of both the 2nd and 3rd-9th respondents’ issue respectively. Both also are identical in which the question arose is whether the learned trial judge was right to have dismissed the appellant’s application for interlocutory injunction in the circumstance of this case. I shall treat the 1st issue in both brief together as well as Appellant’s issue NO.3 and issue NO.2 of the 2nd and 3rd – 9th respondents in view of their identical nature. I shall thereafter deal with the appellant’s NO.2 issue separately.

ISSUE No. 1 of both appellant and respondents

Under this issue, the appellant contended that on no account should a court raise a point suo-motu, no matter how clear it may appear to be and then proceed to resolve it one way or the other without inviting the parties to address it on such a point, other wise it will be a flagrant breach of the parties right to fair hearing. In support of his contention the following cases were cited and relied upon:

1. Iwuorie Iheanacho & 6 Ors. V. Mathias Chigere & 3 Ors (2004) 17 NWLR (Pt.901) 130 at 150 par. H.
2. The State V. Moshood Oladimeji (2003) 14 NWLR (Pt.839) 57 at 74-75 pars. F – G.

The appellant finally on this issue gave, as an exception to his above contention. The given exception is the issue of jurisdiction when arises.

In response the 2nd respondent submitted that in law a party or an applicant who deposed to and exhibited a document in his affidavit in support of an application filed by him, cannot subsequently on appeal complain or object to the trial Court’s consideration of the document in the determination of the said application. He refers us in support of his submission to the cases of

1. Kamoru Aiye Tijani V. Samsideen-Akinwunmi (1990) 1 NWLR (PT. 125) 237 at 249 paras D-E.
2. Ezeokeke & Ors V. Ugo & Ors (1962) All NLR (2nd Edition on) 477 at 480.

It was further submitted that, it is the law that the Court has the power to look at the document in its file which is even not tendered as an Exhibit, and the cases of Chief M.O.A. Agbaisi & Ors V. E. Ebinorefe (1997) 4 NWLR (Pt.502) 630 at 648 paras ‘D’ – ‘E’; and Baker Marine (Nig) Ltd. Vs. Chevron (Nig) Ltd. (2000) 12 NWLR (Pt.681) 393 at 402 paras. ‘G- H’; were relied upon to buttress his submission. He submitted that the trial Court did not use the issue of registration of Exhs ‘1’ and ‘2’ thereof inconsideration and determination of the said application and did not make it an issue. That the appellant therefore, has failed to show how his right to fair hearing pursuant to section 36 of the 1999 constitution was infringed upon by the trial Court.

On the part of 3rd – 9th respondents, their joint brief does not seem to be a response from the respondent but an argument as cross-appellants. Since no cross-appeal, their submission on this issue is discountenanced.

From the record of this appeal, it is in evidence that the appellant in paragraphs 3 and 4 of the affidavit in support of his motion in question, deposed to the existence of Exhs. ‘1’ and ‘2’. Therefore, it was he who raised the issue or the existence of the said Exhibits and as such, the trial court in this circumstance has the power to look at the said documents (i.e. Exhs. ‘1’ and ‘2’) in its file more particularly when such a document is tendered as an Exhibit. See Agbais & Ors V. Ebikorefe (supra) and Baker Marine Nig. Ltd V. Chevron Nig. Ltd (supra).

With this, therefore, the appellant, in my view, cannot deny the trial court an opportunity to look/Examine the document before it and which was produced by the same party in adumbration of his case. To deny that opportunity of course will amount to speaking from both sides of the mouth and therefore blowing hot and cold at the same time. See pages 10, 12-20 and 42 and 43 of the record of appeal where the appellant exhibited Exhs ‘1’ and ‘2’ and also referred to the said exhibits ‘1’ and ‘2’ in his argument. The trial court only pronounced its observation on what it saw on the face of the said documents in the process of writing ruling.

It is inappropriate under this circumstance of this case for the appellant to say that the trial court raised the issue suo-motu without calling on the parties to address it on the issue of registration.

I have examined the record of this appeal particularly the ruling of the trial Court and there is no evidence to show that the trial Court used/relied on the issue of registration of Exhs. ‘1’ and ‘2’ in consideration and determination of the said application and did not in fact make it an issue.

Having said the above, this issue NO.1 is resolved against the appellant, for the simple reason that the appellant failed to prove that the learned trial judge in fact raised the issue of the registration of Deed of lease suo-motu and upon which she relied in dismissing the application in dispute without hearing the parties.

APPELLANT’S ISSUE NO.2

In his brief of argument, the appellant contended that there was irreconcilable conflict between the affidavit in support of the motion on notice and the Counter-affidavit deposed to in opposition, the further -affidavit of the appellant and he refers to paragraph 4 of the affidavit and paragraph 6 of the Counter-affidavit as well as paragraph 5 of the further affidavit to show the conflict. It was also his contention that where the affidavit and the counter-affidavit are irreconcilably in conflict, the trial court should first call for and hear oral evidence for the deponents or other witnesses as the parties may call in order to resolve the conflict. He further contended that it is not the function of the court to back or give selective support to one of the parties as that will reduce the judge’s role to that of a participant in the proceedings and weaken the onus of proof on one of the parties. In support of this point he cited and relied on the following cases:

10. Eimskip Ltd V. Exquisite Industries (Nig) Ltd (2003) 4 NWLR (Pt.809) 88 at 121-122,
11. Alhaji Garba Isyaku & 7 Ors V. Ibrahim Master & 4 Ors (2003) 5 NWLR (Pt.814) 443 at 466 – 467 paras. E-A.
12. General and Aviation Services Ltd V. Captain Paul M. Thahal (2004) 10 NWLR (Pt.880) 50 at 90 paras. B-E.
13. Alhaji Kabiru V. Alhaji Sani Ibrahim (2004) 2 NWLR (Pt.857) 326 at 348 paras A-G.

The 2nd respondent in its response submitted that the appellant’s facts deposed in his affidavit are self contradictory and if they are presumed to be true and taken together are not sufficient to sustain the prayers in the application for interlocutory injunction. That the trial Court did not make any finding of fact from conflicting affidavits evidence to necessitate the calling of oral evidence. What the trial Court, according to the 2nd respondent, was merely to review the facts and the case as presented by the parties before going into the determination of the merits of the application and this could be seen on page 68 of the record of appeal.

The 3rd – 9th respondents did not make any submission on this issue. There is no doubt that it is the law that when court is faced with affidavits which are in conflict, the judge hearing the case, in order to resolve the conflict properly, should first hear the oral evidence from the deponents or such other witnesses as the parties may be advised to call us.

Akunsate V. Akudutere (1966) 1 All NWLR 147 at 148. Eboh & Ors. V. Oki & Ors (1974) 1 S.C. 179 at 189; and Falobi V. Falobi (1976) 9-10 S.C. 1. But it is equal to the law that it is not only by calling oral evidence that such a conflict in affidavits evidence can be resolved. Such a conflict can be resolved by authentic documentary evidence support one of the affidavit in conflict with another. Where the court has enough documentary evidence at its disposal it can suo-motu resolve the conflicting affidavit evidence by resorting to the documentary evidence. See: Ezegbu V. First African Trust Bank Ltd. & Anor. (1992) 1 NWLR (Pt.220) 699 at 720.

I have carefully examined paragraph 4 of the appellant’s affidavit, paragraph 6 of the 2nd respondent’s affidavit as well as paragraph 5 of a further-affidavit of the appellant, and observed that the conflict in affidavit evidence in my view, is not on fundamental issue the balance of convenience to the matter in controversy to necessitate the calling of oral evidence as contended by the appellant. The conflicts in the affidavit will and does not touch the material substance of the matter the balance of convenience before the trial Court, and under that situation a decision may be taken as the trial Court did in this case, based on the evidence in those affidavits and there will be no need to resort to oral evidence to resolve such immaterial facts. See Okupe V. F.B.L.R. (1994) All NLR (reprint) 284 and Garba V. University of Maiduguri (1996) 1 NWLR (Pt.18) 550.

ISSUES NO.3 of the appellant and 2 of the 2nd respondent.

In his submission, the appellant contended that the learned trial judge woefully failed to consider salient depositions in the affidavit in support of his motion, the admission of the 3rd – 9th respondents and the Counter-affidavit of the 3rd – 9th respondents. According to him, the salient depositions are contained in paragraphs 6-8 of the affidavit in support of the motion on notice and paragraphs 4-6 of the 3rd-9th respondents, Counter-affidavit. These depositions, the appellant argued, were not contradicted either by the 1st or 2nd respondent and therefore they are deemed to have been admitted. To buttress this point, the appellant cited and relied on the case of Agbaje V. Ibru Sea Foods Ltd (1972) 5 S.C. p.50 at 55. The appellant also submitted that this failure of the learned trial judge in his duty to consider the salient deposition amounted to denial of fair hearing to the appellant and the 3rd – 9th respondents. He argued that hearing in a suit cannot be deemed to be fair if the court decides a case on the evidence of one party alone and ignore the evidence of the other party. The case of John Asuquo Etim V. The Registered Trustees of Press – by Terian Church of Nigeria (2004) 11 NWLR (Pt.883) P.79 at 91 paras. F – G; and section 36(1) of the 1999 Constitution.

For the 2nd respondent, the trial court, in the determination of the appellant’s motion in dispute, has carefully considered all the relevant factors known to law in arriving at its decision to dismiss the appellant’s motion on notice. The 2nd respondent refers us to pages 68 and 69 of the record of appeal. That the reason for dismissing the motion was rightly stated in the body of the ruling.

The 3rd-9th respondents’ submission in their brief seems to be the cross-appellant’s submission, but not respondent. Since the 3rd – 9th respondents are not cross-appellants their submission is irrelevant to the issue in this so I discountenanced it.

It is well settled that in dealing with an interlocutory injunction, and indeed, any interlocutory application, the court ought to be wary not to decide the main question or issue in the substantive suit. This is the out come of the decision of this Court in the case Nigerian Civil Service Union V. Essien (1985) 3 NWLR (Pt.12) 306 at 316 where Nnameka – Agu J.C.A. (as he then was) stated:

“In this state of the facts, it appears to me that … the learned trial judge was in error to have proceeded to hear and determine the application for injunction the affidavit in support of depended largely on the main issue which had been joined in the substantive suit at this stage.”

To the same effect were the statement of Lords Diplock in the case of American Cyanamid Co. V. Ethicon Ltd. (1975) 1 A.E.R. 504 at 510 where he said:

“It is no part of Court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature deliberations.These are matters to be dealt with at the trial.”

To do otherwise is to violate the right of fair hearing – the audi alteram partem principle of natural justice.

As highlighted earlier in this judgment, the dispute between the parties as disclosed in the claims, affidavit in support of the motion on notice, and counter affidavit is the claim of right of possession to the property and who is entitled to the rents accruing from the property in dispute. These are the crucial questions that call for determination after due trial. In the instant case however, the trial court, after hearing the parties and after going through their respective written addresses on the motion for interlocutory injunction, at p.68-69 encapsulated his findings thus:

“I have looked and considered the application both judicially and judiciously and the court is satisfied that the balance of convenience is on the side of the 1st defendant because the 1st defendant will suffer injustice if he is restrained from collecting rent from the tenants, and this certainly will not restrain him. Those tenants who have failed to pay their rents to him are doing so at their peril, and he can throw them out of the premises and still recover his rent from them. The plaintiff whose reversionary interest has so many years to mature has practically nothing to lose. The court is satisfied that the property will waste if the first defendant is restrained from collecting rent and there is certainly no basis for restraining him. The court is satisfied that if at the end of this suit, damages will certainly be an adequate compensation for injury or damage the plaintiff might suffer. The court is satisfied that this application lacks merit and it is accordingly dismissed.”

Clearly, from the passage quoted above the learned trial judge had exercised, in my view, his discretion judicially and judiciously when he refused to grant the motion on notice. For under paragraph 18(b) and (c) of the appellants statement of claim, he prayed the trial court to compel the 3rd – 9th respondents and all other tenants in the property in dispute to pay rents to him. Similarly, under prayer 1 contained in his motion on notice for injunction, he prays the trial court to restrain the 1st respondent either by themselves, their agents, privies and assigns from demanding rent from the 3rd – 9th respondents and all other tenants in the landed property in dispute pending the hearing and determination of the suit.

From these two paragraphs, the relief sought has the same substratum with one of the reliefs sought in the main suit. That is the right to the rents from the tenants of the properly NO.12D Bright Street Onitsha. Each party claimed to have legal rights to the landed property and rents. Therefore if the respondents were restrained and the motion on notice was granted, the learned trial judge would have seen to have adjudged the appellant the possession of the landed property and so automatically became entitled to collect the rents from the 3rd – 9th respondents and other tenants therein. This decision could only be reached after due trial, and one of the main issue, therefore would have been pre determined without hearing. If this is done, to say the least, is a flagrant infraction of the 1st and 2nd respondents, fundamental and constitutional right to fair hearing the result of which would be the nullification of the proceedings and the decision taken. See Chief Land Officer V. Alor (1991) 4 NWLR (Pt.187) 617 at 627.

The learned trial judge in coming to his conclusion, he relied on the balance of convenience, which according to his ruling is on the side of the 1st respondent as the 1st respondent will suffer injustice if restrained and moreover, the appellant has practically nothing to lose. The governing principle in considering the question of balance of convenience is whether in case the applicant succeeds in his claim, he could not be adequately compensated by award of damages against respondent and that the respondent is financially in a position to pay the damages awarded. See Orji V. Earia Ltd. (1992) 1 NWLR (Pt.124) at 139. If damages would be adequately and the respondent can pay them, then the application for interlocutory injunction should normally not be granted however strong the applicant’s case may be see Orji v. Earia Ind. Ltd (Supra).

From the affidavit and counter affidavit it was shown that payment of damages will adequately compensated the appellant in the event that the appellant’s case succeeded, and the 2nd respondent was shown to be able to pay, so the application under the circumstance may not be granted.

Applying the above stated principles of law, the learned trial judge was right in dismissing the application for injunction, and I so held.

Having resolved all the issues against the appellant, the appeal, therefore, lacks merit and is accordingly dismissed. The ruling of the trial court dated 29/9/2005 dismissing the motion on notice for interlocutory injunction is affirmed. N20, 000.00 as costs against the appellant and in favour of the 2nd respondents is awarded.

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Other Citations: (2008)LCN/3066(CA)