Joseph Nnamani & Ors V. Comfort Inyang Ikoku & Anor (2016)

LawGlobal-Hub Lead Judgment Report

EMMANUEL AKOMAYE AGIM, J.C.A. 

 On 3-7-2012 by a writ of summons accompanied by a statement of claim, witness depositions, list of witnesses, photocopies of documents and list of documents, the respondents herein, as plaintiffs, commenced suit No. E/230/2012 in the High Court of Enugu State sitting at Enugu against the appellants herein as defendants.

The defendants on 28-11-2012 filed their statement of defence accompanied by a list of witnesses, witness depositions, list of documents to be relied on and photocopies of documents.

?The plaintiffs had on 3-7-2012 while commencing Suit No. E/230/2012, filed along with the writ of summons, a motion on notice praying for-
?(A) ?An order of interlocutory injunction restraining the respondents, their agents/privies or any persons claiming through them from trespassing or further trespassing whether by entry, placing of objections, excavation of soil or in any manner whatsoever disturbing/inhibiting the plaintiff?s/applicants in the enjoyment of their ownership/possessory rights in respect of the property i.e. to say the

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?Asha? land, measuring 28.03 acres and situate at Mary Land, Awkunanaw Enugu, delineated clearly in plan No. ENC/70/71 bounded by beacon Nos. EK1780, EK17802, EK17803, EK17804, EK1716, EK1715, EK1716, EK1714, EK18013 E99737, EK17810, EK18166, EJ73008, EK18167 and EK18168 registered as No. 29, at page 29, Vol. 514, Lands Registry Enugu pending the determination of the substantive suit.?

The said motion on notice was supported by an affidavit of 14 paragraphs and a written argument of the motion. Exhibited with the said affidavit are photocopies of a deed of lease, letters of administration, High Court notice and police report.

The 2nd defendant filed a counter affidavit of 44 paragraphs with a written address in opposition of the motion on notice for interlocutory injunction. Exhibited with the counter affidavit are photocopies of lease agreements, perimeter survey plan, land in dispute survey plan, East Central State official Gazette No 13 of 22-3-1973, contingency fee agreement and caveat emptor.
The plaintiffs filed a further affidavit of 12 paragraphs to which is attached and exhibited several documents.

?On 29-11-2012,

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the plaintiffs moved and argued their motion on notice praying for interlocutory injunction. The defendants immediately responded to same and adopted their written address opposing the grant of interlocutory injunction.

The trial Court, immediately rendered its ruling extempore, after the respondents argument. The five lines ruling reads thusly-
I have gone through the motion papers. I have also listened to Bar. I. Aroh Esq. of learned Counsel for Applicant and C.P. Ugwu Esq. From the submissions of the learned counsel on both sides, there appears to arise a confusion that needs to be cleared during hearing of the main suit. I therefore hereby grant the motion of the applicant as prayed.?

Dissatisfied with this ruling, the defendants on 11-12-2012 commenced this appeal No. CA/E/8/2012 by filing a notice of appeal containing 3 grounds for the appeal.

Both sides have filed, exchanged and adopted their briefs, namely, appellant?s brief, respondent?s brief and appellants reply brief.

?The appellants? brief raised the following issues for determination:-
1. ?Whether the trial judge was right to

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have granted the interlocutory injunction without considering and applying the well principles governing applications for interlocutory injunction (distilled from ground ?a? of the appeal).
2. Whether there was in fact a fair hearing of the appellants before the interlocutory injunction was granted and if not, the effect of such denial of fair hearing (distilled from ground ?b? of the appeal).
3. Whether the decision was lopsided and unduly advantageous to the plaintiffs/respondents to the detriment of the defendant/appellants; and in a way that has prejudged the substantive suit. (distilled from ground ?c? of the appeal).?

The respondents? brief raised the following issues for determination-
1. Whether the trial Court was not right in granting the respondents? application for interlocutory injunction considering the conflicts in the deposition of the parties in their respective affidavits. (distilled from ground ?a?)
2. Whether the appellants who have strenuously opposed the application for interlocutory injunction can complain of denial of fair hearing (Distilled from

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ground ?b?).
3. Whether the trial Court?s discretion in granting the interlocutory injunction was not exercised judicially and judiciously (Distilled from ground ?c?)

The respondents filed a notice of preliminary objection that the three grounds of appeal in the notice of appeal be struck out for being incompetent because they are of mixed law and facts and the prior leave of Court was not first obtained to appeal on them as grounds of mixed law and fact. The objection was argued at pages 3-10 of the respondents brief. The appellants replied to the objection in part A of their reply brief.

Let me consider the preliminary objection to the hearing of this appeal, before I venture into the determination of the merit of this appeal, if need be.

This appeal is against the grant of the order of interlocutory injunction by the trial Court. S. 241(1) (f) (ii) of the Constitution of the Federal Republic of Nigeria 1999 provides that ?An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right ? where an injunction or the appointment of a receiver is

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granted or refused.? A party seeking to appeal against the decision of a High Court granting an injunction does not require leave of Court to do so. He can appeal as of right by simply filing his notice of appeal in the High Court Registry within the period prescribed by S. 24 of the Court of Appeal Act, irrespective of the nature of the grounds for the appeal. So that even if the grounds for the appeal are ones of facts or mixed law and facts, leave of Court would not be required to bring it because it is an appeal which S. 241(1)(f)(ii) has prescribed as one that lies as of right. In creating this automatic right of appeal, S. 241(1)(f)(ii) did not limit or qualify its exercise in any way. It did not state that where the grounds for the appeal against the decision of a High Court ordering an interlocutory injunction are ones of facts or mixed law and facts the appeal would no longer lie as of right, but can only be brought with leave of Court. In Ikechukwu v. Iwugo (1989) 2 NWLR (pt.101) 99, (cited by Learned Counsel for the appellant) this Court, per Uwaifor JCA (as he then was) held that-
in his reply Brief, learned counsel for the

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appellant drew attention to the fact that the appeal is against an injunction and that by virtue of Section 220(1)(g)(ii) of the Constitution, it lies as of right from the High Court to the Court of appeal. That contention is obviously correct, as by that provision, no leave is required in any such appeal against an injunction. When a right is conferred without limiting factors or unconditionally. It is absolute; and conformably to its source of grant, it needs no authorization for its exercise.
The Supreme Court in Attamah & Ors v. The Anglican Bishop (1999)9 SCNJ 29 applied S. 220(1)(g)(ii) of the 1999 Constitution of the Federal Republic of Nigeria which is exactly the same with S. 241 (1)(f)(11) of our present 1999 Constitution. It held that by virtue of S. 220(1)(g)(ii) an appeal lies as of right against the interlocutory decisions of a High Court making an order of injunction. It also held that where the question is whether the appeal is covered by two or more of the alternative situations listed in S. 220(1) in which it can lie as of right, once it is settled that the appeal is covered adequately by one of them, there would be no need to

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consider if it is covered by any of the other situations to determine if it can lie as of right.
That case was an appeal against the interlocutory decision of the High Court granting an order of injunction. It was contended inter alia that all the grounds of appeal raised questions of mixed law and fact and that the appellants ought to have obtained leave of Court to appeal before filing their notice of appeal as stipulated under S. 221(1) of the 1999 Constitution. The question that the Court considered was whether the appeal could lie as of right as one purely of law under S. 220(1)(b) or as one granting an order of injunction under S. 220(1)(g)(ii) of the same 1979 Constitution. The supreme Court held that having earlier agreed with the Court of Appeal that the appeal was against a decision that granted an order of injunction, a decision covered by S. 220(1)(g)(ii), there was no further need to consider the applicability of S. 220(1)(b) and the question, whether the grounds of appeal were of mixed law and facts or law alone had become irrelevant. That is the exact situation in our present case. The question whether the grounds of this appeal are of

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mixed facts and law or law alone, so as to determine whether it lies as of right under S.241(1)(b) of the 1999 Constitution or whether it can lie only with leave of Court under S.242(1) of the 1999 Constitution is irrelevant as it is not in dispute that it is an appeal against the interlocutory decision of the High Court granting an interlocutory injunction, in respect of which appeal lie as of right under S. 241(1)(f)(ii) of the 1999 Constitution.

Learned Counsel for the respondent relied heavily on the Supreme Court decision in UBN PLC v. Sogunro (2006)16 NWLR (Pt 1006) in support of his submission that since the decision appealed against is an interlocutory one, leave of Court was required to bring the appeal. Let me straight away state that UBN PLC v. Sogunro is inapplicable here because the interlocutory decision appealed against did not grant or refuse an injunction, it was an order ex-parte granting leave to an applicant to apply for the enforcement of his fundamental right, the Supreme Court held that it was not a decision under S. 241 (1)(d) of the 1999 Constitution which is appealable as of right, the decision appealed against was not covered by

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any of the further Sub-sections under S. 241(1) of the 1999 Constitution.

In the light of the foregoing, I hold that the preliminary objection lacks merit. It is overruled and dismissed.

Let me now consider the merit of this appeal.

I will determine this appeal on the basis of the issues raised for determination in the appellant?s brief.
Let me start with issue No 1 which asks ?Whether the trial judge was right to have granted the interlocutory injunction without considering and applying the well known principles governing applications for interlocutory injunction (distilled from ground ?a? of the appeal).?

An application for interlocutory injunction is a request to the Court that in the peculiar circumstance of the particular case, justice demands that the equitable relief of injunction be made to require a party to do or refrain from doing particular thing pending the determination of the case before that Court. Since application for it is an invocation of the equitable jurisdiction of the Court on the basis of the peculiar facts of the case, then the judicial determination of the application is purely an

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exercise of Judicial discretion, which is an exercise of judicial choice of what decision would be fair and equittable in the peculiar circumstances of the case. So the decision arrived at must show that it resulted from a consideration of all the facts of the case and the reasons for it. If the decision arrived at does not show a consideration of all the facts of the case and the reasons for it, it is a perverse decision and not the result of a proper exercise of judicial discretion. As the Supreme Court held in Iwuji v. Federal Commissioner for Establishment & Anor (1985)4 SC (Pt. 277) per Karibi-Whyte JSC ?the exercise of a discretion presuppose consideration of all the factors relevant and requisite to the exercise of the discretion. Consequently, where the person or authority vested with the power to exercise a discretion refuses to exercise the discretion and gives reasons for such refusal, the reasons or reason given must be one of the factors or factor, relevant to the exercise of the discretion. Where however, the reason for refusal so given is not any of such factors, the discretion has been exercised upon irrelevant considerations and is

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not an exercise of discretion and invalid. See Padfield v. Ministry of Agriculture, Fisheries and Food (1968) AC 997.?
The Supreme Court inAjuwa & Anor v. SPDC Nig. Ltd (2011) LPELR ? 8243 (SC) defined the circumstances on the basis of which the choice of judicial decision is made thusly ?Circumstances? which means the facts or peculiar nature of the case which a judge in the exercise of its discretion would consider. Thus whichever way the appellants may put it, an appeal against the exercise of discretion by the lower Court must involve the consideration of the ?circumstances? in order to determine whether the discretion was judiciously exercised.?
In our present case, the decision of the trial Court granting the application for interlocutory injunction did not show or reflect the consideration of the peculiar circumstances of the case and the reasons for it. It clearly lacked rational basis, was therefore perverse and unreasonable. The absence of any reasons for it renders it capricious, whimsical and unreasonable. There is nothing in the terse decision that shows that the grant of the order of

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interlocutory injunction was the result of a proper exercise of judicial discretion. See Gebi v. Dahiru & Ors (2011) LPELR ? 9334 (CA).

The circumstances that are relevant to the exercise of discretion to grant an interlocutory injunction are those that show that the applicant has a legal right in the res that is entitled to legal or equitable protection, that there is an urgent need to preserve the status quo antebellum pending the determination of the case to prevent an irreparable damage of the res, that the balance of convenience is in favour of the applicant, that there is a live and serious question to be tried in the suit, that the conduct of the applicant is not reprehensible in any respect, that damages would not adequately compensate any destruction of the res that would have occurred at the final determination of the case and that the applicant has given satisfactory undertaking to pay damages should his suit fail. The above have through the cases evolved as the judicially recognized and established valid reasons for the grant of an order of interlocutory injunction. See Akapo v. Hakeem-Habeeb & Ors (1992)7 SCNJ 119, Military

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Administrator FHA v. Aro (1991) 1 SCNJ 154, Akibu & Ors v. Oduntan (1991) 2 SCNJ 30, Globe Fishing Industries Ltd v. Coker (1990)11 ? 125 80 and Buhari & Ors v. Obasanjo & Ors (2003)11 SC 74, Kotoye v. CBN (1989)2 SC (Pt 1)1 and Obeya Memorial Hospital v. A-G of Federation (1987) 3 NWLR (Pt 60) 325.
As the Supreme Court held in Buhari v. Obasanjo (supra) an interlocutory 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.? So the decision granting an order of interlocutory injunction must include as the reason for it, that the applicant has a legal right or interest in the res of the case that is entitled to legal or equitable protection, that there is a serious and live issue to be tried in the case, that unless the status quo ante bellum is urgently preserved, the res would suffer injury that cannot be compensated by an award of damages, that the balance of convenience is in favour of the applicant and the reasons must be supported by the facts in the record of the Court. The decision must through a sound reasoning

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process demonstrate a rational connection between the facts before the Court, the reasons given for the decision and the decision. I agree with Learned Counsel for the appellant that the trial Court did not engage in a rational exercise of discretion and that its grant of the order of interlocutory injunction is arbitrary.

It appears from the phraseology of the terse decision of the trial Court that its grant of the application was the result of its view that ?there appear to arise a confusion that needs to be cleared during the hearing of the main suit.? This is because after expressing this view it stated thusly ?I therefore hereby grant the motion of the applicant as prayed.? The terse decision of the trial Court did not explain what the confusion was about, did not identify the part of the case in respect of which the confusion arose and did not show how the imagined confusion justified its grant of an order of interlocutory injunction without reason. The order of injunction is as perverse as the view that a confusion had arisen that needed to be cleared during the hearing of the main suit.

?In the light of the foregoing,

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the order of interlocutory injunction is hereby set aside. Issue No 1 is resolved in favour of the appellants.

Let me now consider issue No 2 which asks ?Whether there was in fact a fair hearing of the appellants before the interlocutory injunction was granted and if not, the effect of such denial of fair hearing (distilled from ground ?b? of the appeal).?

The terse and flimsy ruling of the trial Court that granted the application for interlocutory injunction did not show that the trial Court considered the facts in the affidavits filed by both sides and addresses of their respective Counsel in granting the order of interlocutory injunction. There is nothing in the ruling showing that the trial Court evaluated the evidence in the affidavits of both sides in respect of the application and considered the addresses of Learned Counsel for both sides. The ruling merely informs that the trial Court had gone through the motion papers and listened to the legal submissions of Learned Counsel to both sides. But it did not show what it did with the evidence in the affidavits and the submissions. It rather stated that ?there appears

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to arise confusion that needs to be cleared during the hearing of the main suit?. The evidence in the counter affidavit of the appellant and the legal submissions of their counsel in opposition to the grant of the injunction were not considered by the trial Court.

Considering that the terse ruling was rendered ex tempore, on the immediately following the argument of the motion and the adoption of affidavits and written addresses by both sides and considering the large volume of processes, namely, motion paper and supporting affidavit and annexures with supporting written address, the counter-affidavit with annexures and written address in opposition of the application and highly contentious nature of the application, it is doubtful that the trial Court did go through all the above processes as it claimed. It is obvious from the record of the proceedings on 29-11-2012, that after the conclusion of argument in respect of the application for injunction, the trial Court did not rise from the bench and retreat to its chamber to consider the content of the above mentioned processes so as to come back to decide the application. The record of the

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proceedings of that day show that immediately arguments were concluded, it on the spot, on the bench without rising delivered its ruling of five lines granting the application for interlocutory injunction. It is obvious that the trial Court could not have read the contents of the large volume processes filed in respect of the application between the conclusion of the arguments and the delivery of the ruling. There was no time gap for the trial Court to have read and considered the content of those documents.

The grant of the application for interlocutory injunction without considering the appellants? counter-affidavit with annexures and written address in opposition to the grant of the application, violate the appellants? right to fair hearing and is therefore nullity.

Every decision of a Court must show a dispassionate consideration of the evidence and legal arguments presented by each party to the case before it and how its decision was arrived at on the basis of this consideration. InBayol v. Ahemba (1999)7 SC (pt 1) 92, the Supreme Court held that ?the judgment of a Court must demonstrate in full a dispassionate consideration

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of the issues raised and canvassed before it. This duty on the Court is imperative otherwise it will be extremely difficult for a party whose case has not been accorded adequate and full consideration to accept that justice has been done to him.?
There can be no fair hearing when the decision of the Court does not show that it considered the evidence and legal arguments presented by the party against whom the judgment was made. The requirement of fair hearing that both sides must be heard would be sterile and meaningless, if the Court does not consider what it heard or read from the parties in deciding the dispute before it. That requirement is not satisfied by merely hearing the party presenting his evidence and legal submissions, it is the consideration of that evidence and legal evidence in the determination of the dispute that fulfills the requirement that both sides be heard.
Issue No 2 is therefore resolved in favour of the appellants.

Let me now determine issue No 3.

?Learned Counsel for the appellant has argued that the wholesale granting of the application for interlocutory injunction as prayed conclusively pronounced the

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respondents the owners of the suit land before the hearing of the substantive claim for ownership of the suit land.

I do not agree with this submission. The grant of the application for interlocutory injunction as prayed did not pre-determine or pre-judge the substantive claim for ownership of the suit land. The exact of the order of injunction prayed for and granted by the trial Court reads thusly-
An order of interlocutory injunction restraining the respondents, their agents/privies or any persons claiming through them from trespassing or further trespassing whether by entry, placing of objections, excavation of soil or in any manner whatsoever disturbing/inhibiting the plaintiff?s/applicants in the enjoyment of their ownership/possessory rights in respect of the property i.e. to say the ?Asha? land, measuring 28.03 acres and situate at Mary Land, Awkunanaw Enugu, delineated clearly in plan No. ENC/70/71 bounded by beacon Nos. EK1780, EK17802, EK17803, EK17804, EK1716, EK1715, EK1716, EK1714, EK18013 E99737, EK17810, EK18166, EJ73008, EK18167 and EK18168 registered as No. 29, at page 29, vol. 514, Lands Registry Enugu

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pending the determination of the substantive suit.?

I understand this order as worded to mean that it restrained the appellants from disturbing the respondents? enjoyment of whatever rights it claims to be enjoying in the land pending the determination of the suit. The injunction seeks to preserve the existing status quo ante litem by restraining any interference with the respondents enjoyment of the rights it was enjoying before the commencement of the suit leading to this appeal. I do not see how that amounts to a pre-determination of the substantive issue of who owns the right to occupy the Suitland.

For the above reasons issue No 3 is resolved in favour of the respondents.

On the whole this appeal succeeds as it has merit. It is accordingly allowed. The ruling of the Enugu State High Court at Enugu rendered in suit No E/230/2012 on 29-11-2012 per B.E. Agbata J granting the respondents application for interlocutory injunction as prayed and the order of interlocutory injunction are hereby set aside.

?The respondents shall pay costs of N50,000.00 to the appellants.

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Other Citations: (2016)LCN/8740(CA)