Mrs. Oghenekohwo Queen & Anor V. Madam Odemekpore Adaroh & Anor (1998)

LawGlobal-Hub Lead Judgment Report

AKINTAN, J.C.A.

This is an appeal from an interlocutory ruling delivered by Ehiwario, J. on 30th October, 1996 sitting at Isiokolo High Court, Delta State in Suit No. HC1/16/96. The plaintiffs, now appellants, had by a writ filed on 15th July, 1996 instituted the action against the defendants, now respondents, in which their claim reads as follows:

“1. The sum of N2,000,000.00 (Two million naira) being damages suffered by the plaintiffs when the defendants trespassed on the plaintiffs’ land/rubber plantation situate at Okudioka bush in Oviorie-Ovu in Ethiope East Local Government Area of Delta State a place within the jurisdiction of this Honourable Court.

2. An order directing the defendants to refund the amount they have collected and/or gained from tapping the rubber plantation of the plaintiffs.
3. An order of interim injunction restraining the defendants, their agents, privies and/or anybody whatsoever acting on their behalf from doing anything inconsistent with the plaintiffs’ interest on the plaintiffs’ land/rubber plantation situate at Okudioka bush in Oviorie-Ovu in Ethiope East Local Government Area of Delta State a place within the jurisdiction of this Honourable Court.
4. An order of interlocutory injunction restraining the defendants, their agents or privies and/or anybody whatsoever acting on their behalf from doing anything whatsoever inconsistent with the plaintiffs’ interest on the plaintiffs’ land/rubber plantation situate at Okudioka bush in Oviorie-Ovu in Ethiope East Local Government Area of Delta State a place within the jurisdiction of this Honourable Court.
5. An order of perpetual injunction restraining the defendants, their agents, servants, privies and/or anybody whatsoever acting on their behalf from doing anything whatsoever inconsistent with the plaintiffs’ interest on the plaintiffs’ land/rubber plantation situate at Okudioka bush in Oviorie-Ovu in Ethiope East Local Government Area of Delta State a place within the jurisdiction of this Honourable Court.”

The plaintiffs also filed, on the same day along with their writ of summons.

a motion in which they prayed the court for the following relief:-

“An order of interlocutory injunction restraining the defendants, their agents, servants, privies and/or anybody whatsoever acting on their behalf from doing anything whatsoever inconsistent with the plaintiffs’ interest on the plaintiffs’ land/rubber plantation situate at Okudioka bush in Oviorie-Ovu in Ethiope-East Local Government Area of Delta State pending the determination of the substantive suit.”

The motion was supported by a 33-paragraph affidavit and a 16-paragraph further affidavit both sworn to by the 1st plaintiff/appellant. The motion was opposed. To that end, a 21 -paragraph counter-affidavit and a 12-paragraph further and better counter-affidavit both sworn to by the 2nd defendant/respondent. The motion thereafter came up for hearing before the learned trial Judge. After taking submissions from learned counsel for the parties, the learned Judge reserved his ruling.

In his reserved ruling delivered on 30th October, 1996, the learned Judge held that the application lacked merit and he accordingly dismissed it with N200,00 costs in favour of the defendants/respondents. The learned Judge made the following findings of fact in the course of his said ruling before coming to his above conclusion:-

“From the evidence from both parties, I have no doubt in my mind that the respondents are in possession of the rubber plantation before the applicants came to court and that they are still in possession. Secondly, I find the hare assertion of the applicants that if the respondents are not restrained now, they will suffer irreparable damages which monetary awards will not be adequate compensation as being far from the mark of realism. First, from the nature and character of the relief they seek against the respondents in the main claim, they have demonstrated that their damages (if any) can be redressed through monetary recompense. Dead rubber trees can reasonably be assessed and losses from the proceeds quantified over a length of time. The respondents who are right now in possession have gone ahead to employ workers to be tapping the rubber for them. They live on the proceeds. The effect which a temporary stoppage of this business is likely to produce on the respondents will be more severe than that on the applicants. Meanwhile, the applicants have nothing to lose other than the alleged monetary gain claimed in their writ which can be compensated for if they eventually win.”

The plaintiffs were dissatisfied with the ruling and they have appealed against it to this court. They filed 4 grounds of appeal against the ruling. The panics filed their briefs of argument in this court. The appellants formulated the following two issues in their brief as arising for determination in the appeal:-

“1. Whether the mere fact that there is a relief for damages without more is sufficient to refuse an application for an interlocutory injunction.

2. Whether to be in possession by an act of trespass is sufficient for the refusal of an application for interlocutory injunction.”

The respondents, on the other hand, formulated only a single issue as arising in the appeal. The single issue is as follows:

“Whether in all the circumstances of this case the learned trial Judge was right in refusing to grant an interlocutory injunction against the defendants/respondents.”

Although I believe that the single issue formulated in the respondents’ brief is more appropriate in resolving the question raised in the appeal, I will, however, follow the issues formulated in the appellants’ brief.

The facts disclosed in the affidavit evidence deposed to for and against the motion are that the plaintiffs claimed that the rubber plantation, which is the subject-matter of the action, belonged to their father, Chief Paul Etaghene, who died on 20th March, 1983. That since the death of their said father, they had employed some people to tap the rubber for them. One of such people so employed is one Madam Queen Oyovwushi. That no one disturbed the family on the plantation until sometime in December 1994 when the defendants/respondents forcefully took over the farm and put thereon other people, including Madam Queen Oyovwushi, to be tapping the rubber on the plantation for them.

The defendants/respondents, on the other hand, claimed that the rubber plantation in question belonged to their grandfather and through whom they inherited it. They denied ever using force to seize it from the plaintiffs/appellants.

They claimed that they put their workers on the farm who had been tapping the rubber for the family.

Chief Akpofure, SAN, learned leading counsel for the appellants, submitted both in the appellants’ brief and in his oral presentation of the case before us in respect of the appellants’ first issue, that the purpose or object of an interlocutory injunction is to maintain the status quo during the pendency of the substantive action. This is said to be necessary in order to prevent injustice that could not be adequately compensated at the end of the substantive action if the injunction is refused. It is further argued that from the facts disclosed in the instant case, monetary compensation would be inappropriate if the prayer is refused. This is because it has been shown that malicious damage aimed at prematurely extinguishing the interest of the plaintiffs over the rubber trees was being committed by the respondents.

It is submitted, in respect or the second issue, that possession by an act of trespass could not constitute proper possession in the determination of an application for interlocutory injunction. The learned trial Judge is therefore said to be wrong to have heavily relied on the act of possession by the defendants in refusing to grant the interlocutory injunction. This is because it has been clearly established that the act of possession relied on in the instant case was founded on trespass obtained by use of force.

Its submitted in reply in the respondents’ brief that what the learned trial Judge did in the case was to avoid resolving at interlocutory stage, the vexed issue of whether the defendants/respondents were on the land in dispute lawfully or as trespassers; in other words, who owned the land. That point, it is argued, should be left for the substantive case. On the question whether damages would be adequate compensation should the plaintiffs win at the end, this is said to be one of the issues to be considered in an application for interlocutory injunction. The learned Judge is said to have rightly considered that point along with the other issues raised in the application before arriving at the conclusion reached in the case.

It is further submitted that the predominant question to be considered should be the maintenance of status quo which the learned judge was said to have rightly considered in the case. The purpose of interlocutory injunction is said not to be directed at wresting possession of a property in dispute from a party and grant same to the other side.

The conditions which an applicant for an interlocutory injunction must fulfill before he can succeed are well settled. Among such conditions are that:-

1. the applicant must show that there is a serious question to be tried in his substantive action: See Obeya Memorial Specialist Hospital v. Att. Gen. of Federation (1987) 3 NWLR (Pt. 60) 325;
2. the applicant must show that the balance of convenience is on his side, i.e. that more justice will result in granting the application than in refusing it: See Missini v. Balogun (1968) 1 All NLR 318; 3. the applicant must show that damages cannot be an adequate compensation for his damage or injury if he succeeds at the end of the day;
3. that the applicant must show that his conduct is not reprehensible, e.g. that he is not guilty of any delay. See Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt. 98) 419; and
4. the applicant must establish that the injunction is necessary to preserve the res which is in danger or imminent danger of being destroyed. See Kotoye v. Central Bank of Nigeria, supra: Ayorinde v. Att. Gen. Of Oyo State (1996) 3 NWLR (Pt.434) 20; Ojukwu v. Governor of Lagos State (1986) 3 NWLR (Pt. 26) 39: and Egbe v. Onogun (1972) 1 All NLR (Pt. 1) 95.The facts of the instant case, as contained in the affidavit evidence filed by the parties, show that there was a dispute over the ownership of the rubber plantation which forms the subject matter of the substantive claim before the court.

Although the plaintiffs averred in their affidavits that the defendants were trespassers on the plantation, the defendants denied that averment in their counter-affidavit and further counter-affidavit. The issue as to whether the defendants were trespassers was therefore an issue yet to be resolved at the trial. Similarly, it is clear from the affidavit evidence that the defendants were in possession of the rubber plantation as at the time the plaintiffs filed their motion for the interlocutory injunction. While the plaintiffs contended that the defendants were on the land as trespassers, the defendants denied that they were there as trespassers. It follows therefore that the issue as to whether the defendants were there as trespassers or not is also yet to be resolved at the trial.

Since the issue of trespass was not admitted by the defendants and, in fact, it forms an important issue to be decided in the substantive case, the law is trite that the court should not, upon an interlocutory application, make a pronouncement amounting to a pre-judgment on issues which are yet to be resolved: See Onwuegbu v. Ibrahim (1997) 3 NWLR (Pt.491) 110. Similarly since it was admitted by the plaintiffs/applicants that the defendants/respondents were in possession in the instant case, the question of granting an interlocutory injunction as a result of which the same possession would be transferred from the defendants to the plaintiffs will be contrary to the principle of maintaining the status quo in the case until the determination of the suit: See Oduntan General Oil Ltd. (1995) 4 NWLR (Pt.387) 1: Ita v. Nyong (1994) 1 NWLR (Pt. 318)56: Kotoye v. Central Bank of Nigeria, supra; and Ayorinde B. Att. Gen. of Oyo State, supra.

Applying the law as declared above to the facts disclosed in the instant case, I believe that since the appellants were not in possession of the rubber plantation as at the time they instituted their action, granting an interlocutory injunction by which they would be in possession of the rubber plantation would not amount to maintaining the status quo in the matter pending the trial of the case. Maintaining the status quo means keeping the situation of things as they were as at the time the plaintiffs appellants embarked upon the activities sought to be restrained. See Ayorinde v. Att. Gen. of Oyo State, supra. Maintaining the status quo in the instant case therefore is allowing the defendants who were already on the farm land to continue to be on the land.

It is also necessary to mention the fact that an important aspect of the plaintiffs’ claim is the one for pecuniary damages. The law is trite that a plaintiff who claims only pecuniary damages ought not to be granted an interlocutory injunction. See Onwuegbu v. Ibrahim, supra.In the result, I believe from the facts placed before the lower court in support of the application and the law as discussed above, the appellants were not entitled to the grant of an injunction they sought from the court. The lower court was therefore right in dismissing the application. My conclusion therefore is that this appeal must fail. I accordingly dismiss it with N2,000.00 costs in favour of the respondents.

Other Citations: (1998)LCN/0380(CA)