Mallam S. Raba Adamu & Ors V. Mrs. Victoria Suemo (2007)
LawGlobal-Hub Lead Judgment Report
OYEBISI FOLAYEMI OMOLEYE, J.C.A.
This is an appeal against the ruling of Hon. Justice S. J. Adah of the Federal High Court sitting in the Abuja Division which was delivered on 23/03/2004.
The Respondent (as plaintiff) on 15/09/2003 took out a Writ of Summons accompanied by a Statement of Claim wherein she claimed against the Appellants (as defendants) jointly and severally as follows:-
“1. A declaration that the plaintiff is the bonafide allottee of and all the improvements and property known as Plot 707, Wuye District, Cadastral Zone B3 Abuja. The plot which measures 2000m2 was conveyed to the plaintiff by the Ministry of Federal Capital Territory vide a letter of offer dated 3/6/2002.
- A declaration that the plaintiff is the appropriate party entitled to the issuance of the Certificate of Occupancy over Plot 707-Wuye District, Cadastral Zone B3, Abuja.
- An order of Honourable Court directing the 2nd and 3rd Defendants to issue the Certificate of Occupancy over Plot 707, Wuye District, Cadastral Zone B3 to the plaintiff.
- An order of perpetual injunction restraining the Defendants either by themselves, their agents, privies, assigns, workmen or staff from trespassing, removing, scaling up, disturbing, harassing, otherwise interfering with the plaintiffs proprietary and possessory rights over plot 707, Wuye District District, Cadastral Zone B3, Abuja.
- The cost of this suit”
On 17/09/2003, the Respondent further filed a Motion on Notice supported by an Affidavit of 22 paragraphs with Exhibits “A”, “B”, “C”, “D1”, “D2”, “D3”, “E”, “F” and “G” as annexures thereto The Respondent’s motion on notice prayed for the following orders of interlocutory injunction:
“1. An order of interlocutory injunction restraining the Defendants/Respondents their agents, privies, assigns, workmen staff or officials from demolishing the plaintiff’s twin three bedroom bungalow or in any way disturbing or interfering with the land and property contained and situate at plot 707, Wuye District Cadastral Zone B3, Abuja is pending the final determination of the Substantive suit.
- An order of interlocutory injunction restraining the 2nd and 3rd Defendants from processing the applications of the 1st Defendant for the issuance Certificate of Occupancy, setting out approval building plan or any other approval in relation to plot 707; Wuye District, Cadastral Zone B3, Abuja until the final determination of the substantive suit.
- And for such further or other order(s) as the Honourable Court may deem fit to make in the circumstance.”
The Affidavit in support of the motion is at pages 20-22, while the attached Exhibits “A”-“G” are at pages 23-31 respectively of the record of proceedings. The Appellants duly flied a Joint Statement of Defence and Counter-Claimed therein as follows:-
“a. A declaration that the Counter-Claimant is the person entitled to Certificate of Occupancy in respect of Plot 707 Wuye District, Cadastral Zone B3, FCT, Abuja.
b. A declaration that the possession as well as any development whatsoever effected on Plot 700 Wuye District, Cadastral Zone B3, FCT, Abuja by the Plaintiff, is illegal and constitutes acts of trespass.
c. An order of Court setting aside or declaring null any document whatsoever relied upon by the Plaintiff in laying claims over plot 700 Wuye District, Cadastral Zone, B3 Abuja.
d. An order of perpetual injunction restraining the Plaintiff, her agents, privies or any-person acting on her behalf from committing further acts of trespass on Plot 707, Wuye District Cadastral Zone B3; FCT Abuja.
e. The Sum of N5, 000.00 against the Plaintiff for trespass.
f. The cost of instituting and prosecuting this suit.”
The Appellants also filed a Joint Counter-Affidavit of 16 paragraphs with Exhibits “1”,”2″,”3″, “4”,”5″,”6″,”7″ and “8” as annexures in opposition to the Respondent’s motion on notice. These are at pages 34-36 and 37-47 respectively of the record of proceedings.
After due consideration of the Respondent’s motion on notice, the trial court proceede on 23/03/2004 to grant the Respondent the orders of interlocutory injunction sought by her. Dissatisfied with the ruling of the learned trial Judge, the Appellants filed this appeal.
For the determination of this appeal, the Appellants identified two issues they are reproduced hereunder verbatim as follows:
“ONE
In the absence of evidence of acceptance of Exhibit “A” did the Respondent meet the legal requirement for grant of interlocutory injunction in her, favour? (Grounds one, two and three).
TWO
Whether the Court below considered and pronounced on all the issues raised by the Appellants in opposition to Respondent’s application for interlocutory injunction. If the answer is in the negative, did such failure occasion miscarriage of justice to the Appellants?”
The Respondent adopted the two issues identified for the determination of the appeal by the Appellants as reproduced above.
At the hearing of the appeal on 23/11/2006, learned counsel for the Appellants, Mr. J.C. Njikonye adopted the Appellants’ Joint Brief of Argument flied on 20/04/2004 as well as the Appellants’ Reply Brief filed on 13/01/2006 and urged the Court to allow the appeal. While, Miss U.S. Ubon, learned counsel for the Respondent adopted the Respondent’s brief which was deemed filed on 20/10/2005 and urged the court to dismiss the appeal.
I have examined the two issues identified by the Appellants and adopted by the Respondent, I shall now proceed to examine them one after the other.
ISSUE ONE
Learned counsel for the Appellants submitted that in an application for interlocutory injunction, the. Court normally considers a number of important factors including:
(a) Whether there is or are serious question(s) to be tried.
(b) Whether the applicant has a legal right or interest to be protected in the suit or on the subject matter warrants the granting of the injunctive order.
(c) Whether damages that would occur if the act is not restrained by an injunction are irreparable or are such that cannot be adequately compensated in monetary terms at the end of the trial.
(d) Whether the balance of convenience is on the applicant’s side and more justice will therefore result in granting the application than in refusing it.
(e) The applicant would be required to give an undertaking as to damages.
According to Appellants’ counsel, all the above five requirements must be met before an application for interlocutory injunction can succeed. He relied on the cases of;
(1) C.G.C. Nig. Ltd. V. Saba (2003) 23 W.R.N. P.44 at pages 58-59;
(2) Ita V. Nyong (1994)1 NWLR (pt 318) p.56 at pages 69-71 and
(3) Kotoye V. C.B.N. (2000) 16 W.R.N. P. 71 pages 100-101.
Arguing further, the Appellants’ counsel stated that the most important of the five requirements is that the applicant must show by affidavit evidence that she has a legal right or interest to be protected in the suit or subject matter that would warrant the grant of the injunctive order. He relied on the cases of:
(1) Ikechukwu V. Iwugo (1989) 2 NWLR (pt 101) p.90 at p.106 and
(2) Adenuga V. Odumeru (2003) 26 W.R.N. p.132.
It was contended by the Appellants’ counsel that Exhibit “A” which was relied upon by the Respondent as the document of her interest in the land in dispute is a mere letter of offer. The offer must be accepted within two months from the date of the letter for the contractual relationship to become effective. In the absence of this, no legal right was ever acquired by the Respondent over the piece of land in dispute which could be protected in the interim by an interlocutory injunctive order. He relied on the cases of:
(1) Osagie V. Aransonwan (2003) 34 W.R.N p.18 at p.29 and
(2) G.F.A.I.E. V. Yusufu (2003) 25 W.R.N. p.67 at pages 79-81.
The fact that the Respondent has built a house on the land in dispute and lives therein is not enough to entitle her to the grant of an interlocutory order of injunction for orders of court are not gratuitously granted on grounds of sympathy. It is evident that the Respondent does not have a “prima facie” legal right to be protected. Therefore the trial court ought not to have considered as it did, the other requirements at all. The learned trial judge was also in grave error for holding that upon facts presented by the Respondent, there is a serious issue to be tried and that she has a legal right to be protected. The entire Respondent needed to at that stage which she failed to do was to show that she had accepted the offer simply. This is not the same as proving a valid offer and acceptance which is a matter that is reserved for the trial of the case proper.
Appellants’ counsel canvassed that on the other hand, the 1st Appellant has a, legal right in the land in dispute by tendering in evidence Exhibit “5”, which is the letter of acceptance of the offer granting the land to him. The learned trial Judge was in error after this to have still gone ahead to hold that the balance tilted in favor of the Respondent just because of the fact that the Respondent has a house on the land and lives therein. It is not open for the Respondent to argue at large that there is a presumption of acceptance of the offer by her by reason of Exhibits “B”-“D3” evidencing her further dealings with the 2nd and 3rd Respondents. The fact is, she did not accept the offer given to her vide Exhibit “A”. Also, the issue of presumption did not come up during trial and cannot be raised on appeal. What is more the issue did not arise from any of the grounds of appeal. He relied on the case of:
Kadizi Int. v. Kona Tannery (2004) 12 W.R.N. p. 131 at p. 150 He therefore urged the Court to set aside the trial Court’s order of interlocutory injunction.
Contrariwise, the Respondent’s counsel submitted that before deciding whether or not to grant an application for an interlocutory injunction, the courts usually consider a number of grounds. The grounds are:
(a) Whether there is a substantial issue to be tried at the hearing of the substantive suit.
(b) Whether the applicant has a legal right to be protected in the suit.
(c) Whether damages will be an adequate compensation.
(d) Whether the balance of convenience is on the side of the applicant.
(e) The applicant is required to give an undertaking as to damages.
He relied on the cases of;
(1) Kotoye V. C.B.N. (2000) 16 W.R.N. p. 71 at pgs. 100-101;
(2) Akapo V. Hakeem-Habeeb (1992) 7 SCNJ (Pt.1) p.119 at Pgs 137-138:
(3) Obeya Memorial Specialist Hospital & Anor. V. Attorney-General of the Federation & Anor. (1987)7 SCNJ p. 42 at p.54;
(4) Adenuga V. Odumeru (2003) 26 WRN p.132 at pgs.147-148:
(5) Orji V. Zaria Industries (1992) 1 SCNJ P. 29 at p. 39:
(6) Union Beverages V. Pepsicola (1994)2 SCNJ p.157 at p.167;
(7) Onyesoh V. Nnebedun (1992)3 SCNJ p.129 at pgs 144-145 and
(8) Dyketade V. Omnia Nig. Ltd. (2000)7 SCNJ p.90.
Respondent’s counsel argued that the Respondent satisfied all the above set out conditions for the grant of the interlocutory injunction. There is a presumption that she accepted the offer granted her vide Exhibit “A”, otherwise Exhibits “B”- “D3” would not have been issued to her by the 2nd and 3rd Appellants. The resolution of whether or not the Respondent validly accepted Exhibit “A” at the trial would have resulted in the learned trial Judge determining the substantial issues of the case proper in an interlocutory application. This in law is not acceptable. He relied on the cases of;
(1) Akeem V. Unibadan (2003) 6 W.R.N. p. 141 at p. 153:
(2) Okomo V. Umoetuk (2004) 6 W.R.N. p. 154 at pgs, 168-169 and
(3) Ogunsola V. Usman (2003) 6 W.R.N. p.54 at pgs. 71-72.
It is established that the question to be determined at the stage of whether to grant an interlocutory injunction is whether there exists a legal right capable of being protected by the interlocutory injunction. By Exhibits ”’A”-”E”, the Respondent showed that she has a legal right to the land in dispute. Also by reason of Exhibits “1”-“7”, the 1st Appellant contended that he has a competing legal right to the same plot of-land in dispute. The Respondent’s affidavit evidence indicated that she lives in the house built by her on that plot of land with her husband and other family members. The position of the law is that where the relevant factors are evenly balanced, prudence demands that the “status quo” should be preserved.
The trial court was therefore right in holding that there was a balance as to the factors of title to the plot of land in dispute and that the balance must however be tilted in favour of the Respondent. He relied on the case of: Ikechukwu V. Iwugo (989)2 NWLR (pt. 109) p.99 at pgs. 107-108.
The Respondent’s counsel urged the court to uphold the ruling of the trial court.
The point that the Respondent did not write a format letter or give an acknowledgment of her acceptance of the offer conveyed to her vide Exhibit “A” by the 2nd and 3rd Appellants was laboriously dwelt upon by the Appellants’ counsel, in fact it echoed all through the entire length and depth of his submissions. He therefore concluded based upon the non-acceptance of, the offer that the Respondent does not possess a legal right in the portion of land in dispute that can be protected by an injunctive order. However, the Appellants’ counsel pointed out that the 1st Appellant’s acceptance letter; Exhibit “5” gave the 1st Appellant the required legal right, a kind of superior right to that professed by the Respondent, so to speak.
In an application for interlocutory injunction, the application must show, among other things, that there is a serious issue or question to be tried at trial. It must be shown to the court’s satisfaction that the claim is not frivolous or vexatious. However, there is no rule requiring a plaintiff to establish a “primia facie” case, All that the applicant must show is that he has a recognizable legal right which is threatened and ought to be protected and that the balance of convenience is in his favour. It is not necessary for an applicant to prove a proprietary interest in the property rather he must establish that he is in lawful occupation with the authority of the owner. In cases involving landed properties as the instant case, once an applicant/ plaintiff has established that he is in possession of the property in dispute, an order of injunction would flow naturally to protect his possession unless the defendant proves a better title.
The right of an applicant to an injunction which would be protected by the grant of the order is the right existing with regard to the state of things prevailing before the acts complained of by the applicant. In the instant case, the Respondent’s right which she sought protection for by an order of interlocutory injunction is the state of things before the 1st Appellant came into the scene, before the Appellants’ solicitors wrote to the Respondent to quit the land vide Exhibit “F” and the quit notice Exhibit “G” issued on her by the 2nd and 3rd Appellants. That is the ‘Respondent’s right to possession and occupation of the land in dispute. In support of these clearly established, positions of the law, see the cases of:
(1) Alh. S. I. Mashamasha & 5 ors V. Chief B. Anekwe & 13 ors. (2001) 18 NWLR (Pt. 744) p.49;
(2) Ekwomchi V. Ukwu (2002) 1 NWLR (Pt.749) p.590;
(3) A. Akpomudje & 2 ors. V. The Gov. of Delta State & 3 ors. (2003) 9 NWLR (Pt.826) p.561;
(4) A. Cobham V. B. Duke & Anor. (2004) 2 NWLR (Pt.856) p.150;
(5) Prince Dr. R.A. Modile & Anor. V. The Gov. of Lagos State & 4 ors. (2004) 12 NWLR (Pt. 887) p.354 and
(6) Regt. Trustees of P.C.N. V. Regt. Trustees of A.S.N. (2000) 5 NWLR (Pt.557) p.368 at P.378.
Although the Appellants have denied some of the Respondent’s Exhibits that is, Exhibits “B”, “C”, “D1”, “D2” & “D3” as not emanating from the office of the 2nd & 3rd Appellants, happily they have not denied that Exhibit “A” which conveyed the grant of the land in question to the Respondent was issued by and emanated from the 2nd & 3rd Appellants.
The issue as to acceptance of the offer appears to me to be more of who has a better title out of the Respondent who did not formally accept the offer in writing and the 1st Appellant who allegedly formally, accepted the offer in writing. This issue can only be established at the trial when parties are called upon to prove their respective cases. Gladly, it would appear that indeed the Appellants’ counsel conceded to this point when they submitted rightly that the validity of the legal rights of parties vide Exhibits “A” and “4” tendered by the Respondent and the 1st Appellant respectively can only be resolved at trial.
It is conceded that the 1st Appellant was also offered the portion of land in dispute by the 2nd & 3rd Appellants vide Exhibit “4”. Indeed from the averments- in the supporting affidavit, counter affidavit and the Exhibits turned in by both parties, it is quite evident that there are very many conflicts in the affidavit evidence as to the facts on which contesting parties base their claims or objections to the grant of the injunctive relief. It is trite from the “locus classicus” cases of:
(1) American Cynamid Co. V. Ethicon Ltd. (1975) A.C. p.396 and
(2) Obeya Memorial Hospital V. A.G., Federation (1987) 3 NWLR (Pt.601) p.325.
That it is not the part of the trial court to resolve such conflicts at that interlocutory stage. The exercise must surely be reserved for the full trial. See also the case of:
Ekwomchi V. Ukwu Supra.
In determining the balance of convenience in an application for interlocutory injunction, the court must weigh the inconvenience, the degree of hardship and damage that will be suffered by the applicant/plaintiff against that of the respondent/defendant in deciding whether or not to grant the order of interlocutory injunction sought. Put in other words there must be the consideration of the irreparable injury which the defendant would suffer if the injunction was granted should the case be subsequently decided in his favour and that which the plaintiff might sustain if the injunction was refused should she ultimately obtain judgment in her favour.
See the cases of:
(I) Akinkugbe V. Bucknor (2004) 11 NWLR (pt.885) p.652:
(2) Otu V. Udonwa (2000) 13 NWLR (Pt.683) p.157 and
(3) Udeze V. Orazulike Trading Co. Ltd. (2000) 3 NWLR (pt. 648) p.203.
It was contended in favour of the Respondent that if the application was refused, she might lose the twin bungalows the structures already built on the land in dispute, the photograph of the structure in Exhibit “G”. The Appellants’ counsel did not submit against the fact most importantly that the Appellants especially the 2nd & 3rd Respondents might demolish those structures having served the Respondent with quit notice, Exhibit “G”. Although it can be argued that those structures are capable of being valued. However, if at the end of day, the Respondent succeeds, no doubt, the values of those structures are bound to be very huge. Whereas if the Appellants do not succeed eventually, the 1st Appellant is likely to be compensated with an allocation of another portion of land by the 2nd & 3rd Appellants. It is indeed patent on the face of the Appellants’ counter affidavit and the Exhibits annexed thereto that they are admitting to the fact that there was a mix-up in the course of allocating the land in dispute.
I refer to page 46 of the record of proceedings, Exhibit “8”, the minutes of some officials of the 2nd & 3rd. Appellants.
The learned counsel for the Appellants strenuously argued that the fact that the Respondent has built some structures on the land in dispute is immaterial. I do not share his view. To do this will amount to shying away from a legally vested responsibility of ensuring that discretion is exercised according to legal principles. I refer to the case of: Saraki V. Kotoye (1990) 4 NWLR (pt.143) p.144 at p.170 para. F. In the case, Hon. Justice Obaseki JSC, succinctly captured this point when he observed that:
“When the court shuts its eyes to the pleadings referred to in the affidavit evidence its ability to do justice in the application or to make an order: that is just or convenient is curtailed as the compass of vision is severely restricted.”
The trial court was definitely right for not shut its eye to Exhibit “G” of the Respondent among other material evidence for these support that an irreparable damage will be suffered by the Respondent. The court will not hesitate to grant an injunction for protection of a legal right or the prevention of injury to that right in a just as well as convenient manner as the instant case. Irreparable damage is defined as injury which is substantial and could not be adequately remedied or atoned for by damages, not an injury which cannot possibly be repaired. See the case of:
Saraki V. Kotoye Supra.
The Appellants’ counsel also contended that the Respondent should not be allowed to employ the use of or the defence that the acceptance of the offer given to her should be presumed by reason of her subsequent dealings within the 2nd and 3rd Appellants vide Exhibits “B”, “C”, “D1″,”D2” & “D3”. The Appellants’ counsel’s reasoning is premised on the fact that the Respondent is just introducing the point of presumption on appeal as it never came up in the trial court. I dare to differ again on this point and state that it was in response to the question raised by the Appellants’ counsel in their brief that the Respondent did not formally accept the offer of the 2nd & 3rd Appellant that the Respondent’s counsel submitted that if the offer was not presumed accepted, the 2nd & 3rd -Appellants would not have issued Exhibits “B”-“D3” to the Respondent. It is therefore my view and I think I am right that the Respondent is entitled to explain her stance as best as she possibly could and in the manner she did. I do not see the use of the word “presumption” as anything special or technical in the given circumstances. It is certainly not an issue that could be capitalised upon.
In sum, I am of the humble view that the Respondent showed adequately that she has a recognizable legal- right in the land in dispute, the learned trial judge rightly captured this and justly as well as conveniently tilted the balance of convenience in her favour by granting her the injunctive relief not only to protect that right but also to prevent possible immediate or imminent irreparable injury. I therefore resolve issue one in favour of the Respondent.
ISSUE TWO
The learned counsel for the Appellants’ contended that the trial Court’s failure to consider and make pronouncements on some salient issues of title raised by the Appellants in their counter-affidavit in opposition resulted to a miscarriage of justice. If those issues had been considered, the trial court would have realized that both in law and in equity, the Respondent was not entitled to the interlocutory injunctive orders she sought. He relied on the cases of;
(1) Alwa’u V. Yakubu (2004) 4 W.R.N. p.86 at pgs 108-109 and
(2) Ogunleye V. Oyelakin (2003) 27 W.R.N. p. 127 at p.142.
A court of law has a duty to consider and pronounce on all salient issues raised which could affect the final determination of a matter before it. Appellants’ counsel went ahead to catalogue the said salient issues.
Firstly that before the Respondent could acquire any legally enforceable right based on Exhibit “A”, she must first accept the offer therein, and since she did not produce any evidence of acceptance, she has no legal right over the plot of land in dispute capable of protection by an interlocutory order of injunction.
Secondly, the Appellants contended that the Respondent does not have any known legitimate business and does not possess the wherewithal to pay the damages undertaken by her. The Respondent however failed to supply particulars of the means at her disposal in proof of her ability to pay damages, hence the absence of a legally cognizable undertaking to pay damages which is a ground for refusal of the application for an interlocutory injunction.
Thirdly, the Appellants further contended that the conduct of the Respondent is inequitable in that, ordinarily, the Title Deed Plan (TDP) identifying the plot and a Building Plan ought to precede the Setting out Approval. However Exhibit “D” the Setting out Approval is dated 11th November, 2002 while the title Deed Plan (TDP) Exhibit “C” is dated 15th November, 2002 showing that the Setting out Approval was issued to the Respondent before the Title Deed Plan (TDP). Also, the letter of offer was supposed to come after the ministerial approval but in the case of the Respondent, it was not so; the letter of offer to her is dated 03/06/2002, while the ministerial approval is dated 12/08/2002 that is, the ministerial approval came after the offer had already been conveyed to her.
The Appellants’ counsel argued that since all the catalogued points are “ex-facie” the Affidavit and the Exhibits of the Respondent, the trial court ought not to have ignored but looked at them critically in considering the application of the Respondent for the interlocutory injunction rather than reserve them till the substantive hearing of the case. The trial court’s failure in this regard not being in consonance with the set principles for determination of an application for interlocutory injunction had occasioned a miscarriage of justice to the Appellants. He relied on the case of:
Ojo V. Anibire (2004) 51 W.R.N. p.1 at p.12.
He urged the Court to remedy this wrong by exercising its powers to consider and decide the points in favour of the Appellants pursuant to the provisions of Section 16 of the Court of Appeal Act. What is more, the points are matters of evidence based entirely on documents and affidavit evidence. The Court of Appeal is in as good a position as the trial court to review and decide such points. He relied on the cases of:
(1) C & C Constr. V. Okhai (2004) 5 W.R.N. p.73 at pgs. 92 – 93 and
(2) Iwuoha V. NIPOST (2003) 28 W.R.N. 111 at p. 132.
In reply, learned counsel for the Respondent submitted that if a trial court is of the opinion that pronouncing on all the issues raised would have amounted to determining the substantive matter at the interlocutory stage it is not bound to make such pronouncements. In this case, the trial court was therefore not bound to pronounce on all the issues raised by the Appellants in their Opposition to the Respondent’s application for interlocutory injunction. He relied on the cases of:
(1) Akeem V. Unibadan Supra:
(2) Okomo V. Umoetuk Supra:
(3) Ogunsola V. Usman Supra and
(4) Ogbonnaya V. Adapalm (1993) 6 SCNJ p.23 at p. 32.
The Respondent’s counsel argued further that the case of Alwau V. Yakubu Supra cited by the Appellants is not relevant to the instant case. The case was in respect of matters which were based on pleadings in a substantive case where the learned trial Judge was alleged to have resolved questions not canvassed by the parties.
It was further contended by the Respondent’s counsel that the trial court’s non-resolution of the points referred to by the Appellants as salient did not occasion a miscarriage of justice either in law or equity.
Regarding the question of giving an undertaking as to damages, Respondent’s counsel referred to paragraph 19 of the Respondent’s affidavit in support at page 22 of the record of proceedings and canvassed that, the Respondent duly gave an undertaking to pay damages accordingly. Also on 29/03/2004, the Respondent gave a further written undertaking as to damages following the ruling of the trial court which was delivered on 23/03/2004. This is at page 79 of the record of proceedings. Assuming that the Respondent indeed failed to give an undertaking as to damages before the order of interlocutory injunction was made, the failure will only render the order liable to be set aside and it cannot result in the order being declared incompetent. He relied on the case of: Onyesoh V. Nnebedu Supra at p.155.
The Respondent’s counsel urged the court not to invoke its powers pursuant to the provisions of Section 16 of the Court of Appeal Act to consider the alleged salient points of the Appellants which the trial court rightly failed to decide as this will have the effect of determining substantive matters at an interlocutory stage.
I have exhaustively considered Exhibit “A” under issue one above. I further emphasis that the learned trial judge is not permitted in law to pronounce much more than he did on the question of who between the Appellants and the Respondent has the valid/authentic legal right to the land in dispute. This indeed led the trial court to the consideration of the balance of convenience. He adequately weighed the affidavit evidence of both parties and came to right decision in the case. The learned trial judge did not overlook or ignore the points contained in the counter affidavit of the Appellants. He reserved and gave a considered ruling in the application. What he did not do was to descend into issues which are the exclusive preserve of a full trial. The law forbids him to do this.
The propriety or alleged inferiority of Exhibit “A” of the Respondent to the combined effect of the Appellants’ Exhibits “4” & “5” as well as the alleged manner in which the Respondent was issued with certain documents by the 2nd & 3rd Appellants are issues and conflicts which can only be fairly and properly resolved during full trial and not at the interlocutory stage of the application. It is a settled principle of law that a trial court has a duty to carefully ensure that its ruling on an interlocutory matter does not render nugatory the substantive suit. In the instant case, the learned trial judge was very careful not to prejudge the substantive suit in his ruling being appealed against. The “salient” points that” the Appellants’ counsel would have liked the trial court to pronounce upon are contestable. Such should only be made after the trial of the case on the merit and not in an interlocutory application. See the cases of:
(1) A-G, Fed. V. A.G. Abia State (2001) 11 NWLR (Pt.725) p.689;
(2) Misc. Offences Tribunal V. Okoroafor (2001) 18 NWLR (Pt.745) p.295:
(3) U.B.A. V. Ekpo (2003) 12 NWLR (Pt.834) p.332;
(4) Bamaiyi V. The State (2003) 17 NWLR (pt.848) p.47 and
(5) Nwadiajuebowe V. Nwawo (2004) 6 NWLR (pt.869) p.435.
On the sub-issue of undertaking of damages, the Appellants’ counsel contended that the Respondent does not have any known legitimate business and does not possess the wherewithal to pay the damages undertaken by her. However, the Appellants did not controvert the fact that the Respondent says that she is a business woman and that she built the structures on the land in dispute. I am of the humble view that the undertaking given by the respondent is sufficient especially that of 24/03/2004 at page 79 of the record of proceedings. Indeed, I regard the latter as an extraction by the trial court. I wonder what particulars of means the Appellants’ counsel would have wanted the Respondent to supply. I agree with the submissions of the Respondent’s counsel that assuming though not conceding that the Respondent did not give an undertaking before the grant of the interlocutory; injunction, this will still not be fatal to the order of the trial court in that regard. What is more, it is established that even where a trial court fails to extract an undertaking as to damages from an applicant for an order of interlocutory injunction before granting same, the Court of Appeal is vested with power to extract such undertaking as to damages. See the case of: Olowu V. Building Stock Ltd. (2004) 4 NWLR (Pt. 864) p. 445. Needless in the instant case to wield such power, the Respondent having given the required undertaking as to damages in the trial court.
The Appellants’ counsel had urged this court to exercise its powers to consider and decide the above points in favour of the Appellants in pursuance of the provisions of Section 16 of the Court of Appeal Act. It is settled in law that the grant of an interlocutory injunction is a discretionary one. An appellate court will not interfere with an exercise of discretion by a lower court for the fancy of it Such a discretion will only be tampered with “in very special circumstances such as where it was not exercised judicially and judiciously but based on wrong or insufficient materials or where no weight or insufficient weight was given to relevant considerations of law or under a misapprehension of facts or where the trial court took irrelevant matters into consideration or recklessly abandoned substantial issues or where relevant matters were omitted and not taken into consideration, or where since the making of the order there has been a change of circumstances and in all situations where it will be in the interest of justice to interfere. See the cases of:-
(1) Saraki V. Kotoye Supra,
(2) Udeze V. Orazulike Trading Co. Ltd. (2000) 3 NWLR (Pt 648) p. 203 and
(3) Itseghosimhe V. Ogbeta (2001) 13 NWLR (pt 729) p. 26.
It is established that the essence of an interlocutory injunction is to serve as a preservatory or stop-gap measure. It is granted usually at an early but critical stage In the life and pendency of the substantive cause before the court has had an Opportunity to fully hear and weigh the evidence and determine one way or another the case of the parties. It is an injunction which is directed to ensure that particular acts are not committed pending the final determination of the grievances and indeed the rights of all the interested parties by the courts. It is a remedial writ which a court issues for the purpose of enforcing their equity jurisdiction. In other words, interlocutory injunctions are those issued at any time during the pendency of litigation for a short term and for the purpose of preventing injury to the applicant prior to such a time that the court will be in a legal vantage position to either grant or deny permanent relief(s) on the merit. See among many, the cases of:
(1) Akpomudje V. Gov. Delta State Supra:
(2) Opara V. Ihejirika (1990) 6 NWLR (pt.156) p.291 and
(3) Dyktrade Ltd. V. Omnia (Nig.) Ltd. Supra.
In the instant case I am of the humble view that the learned trial Judge did exercise his discretion judicially and judiciously. He rightly did not delve into issues that are the concern of full trial, while he duly considered the legal rights proffered by both parties in support and opposition of the application before granting the order of interlocutory injunction in favour of the Respondent. That discretion was properly exercised. This court can not therefore properly interfere with that discretion. Just like the trial court, the Court of Appeal is equally forbidden from making pronouncements which will have effect of the determination of a substantive matter at an interlocutory stage. The Court of Appeal has also been enjoined to decline making decisive comments in respect of arguments canvassed by counsel in respect of substantive matters at an interlocutory stage. See the case of Bamaiyi V. State supra at p. 63.
I have no hesitation consequent upon my above reasoning and conclusions in resolving issue two also in favour of the Respondent.
In conclusion, I am of the opinion that the Respondent succeeded in establishing that she has a legally recognisable right to entitle her to the grant of interlocutory injunction to have that right protected and preserved from injury in the meantime. I also found that the trial court properly exercised its discretion in the consideration and determination of all the issues raised by both parties in the application for the interlocutory injunction and for tilting the balance of convenience in favour of the Respondent. Furthermore, the Appellants have failed to establish that the grant of the orders of the trial court occasioned a miscarriage of justice to them in any way. The ruling of the trial court was the best in the given circumstances and at the material time the application was considered. Even now, the circumstances have not changed.
This appeal in essence lacks merit and it fails, it is hereby accordingly dismissed.
I make no order on costs.
Pronouncement: (Section 249 (2) of the Constitution): Hon. Justice I. T. Muhammad who participated in the appeal before his elevation to the Supreme Court bench agreed at a conference that the appeal be dismissed.
Other Citations: (2007)LCN/2232(CA)
