Oba James Adeleke & Ors Vs Nafiu Adewale Lawal & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BA YANG AKA AHS, JSC

This is an appeal against the judgement of the Court of Appeal Ibadan Division delivered on 5th day of May, 2004. The appellants are the plaintiffs in the substantive action while the respondents are the defendants in Suit No. HRE/4/97 instituted and still pending before the Osun State High Court sitting at Ikire. The plaintiffs’ claims before the High Court as contained in paragraph 33 of the Amended Statement of Claim are as follows:-

“33 Whereof the Plaintiffs’ claim against the Defendants jointly and severally are as follows:-

1. N2,000,000.00 (Two Million Naira) general and aggravated damages for trespass, unlawful reaping and carrying away of the Plaintiffs palm fruits since March, 1996 up to the date of this action without the consent and authority of the Plaintiffs, harassment and humiliation by unnecessary causing the arrest of members of Buberu village Community at Suberu otherwise known as Ojudo Village Ogi town in Aiyedaade Local Government Council
2. Perpetual Injunction restraining the defendants jointly and severally, agents, servants or any member of Babasanya family of Ede Community from crossing the boundary and reap the plaintiffs palm trees without the consent and authority of the plaintiffs’.

The Statement of Claim is dated the 19th day of September, 1997 (See pages 3-6 of the record)

After filing the statement of Claim the plaintiffs also filed an application dated 3rd October. 1997 seeking an order of ‘interlocutory injunction restraining the defendants jointly and severally, their agents privies and servants from crossing the boundaries between the applicants and respondents and enter the farmland in dispute and reap the plaintiffs (sic) pending the final determination of the above named civil suit Or

In the alternative an order ordering the defendants, agents servants and privies to comply with the judgement of Oshogbo High Court in Suit No. HOS/134/64 between Josiah Akinfende vs Bello Adedoja & 3 Ors attached herewith and marked Exhibhit A9 from f urther crossing the boundaries between them and reap the applicants palm fruits.

2. To stop harassing members of Ojudo Community of Ojudo Ogi farming at Ojudo on the land in dispute with Ede Policemen and prosecuting them on frame up charges before the Ede lay Magistrate sitting at Ede and stay all the criminal proceedings pending against the applicants Community until the final determination of this case”.

The plaintiffs relied on survey plan No. GB101A which was attached as Exhibit D to the application showing the area of the land as well as other features of the land in dispute. They filed a further affidavit on 7/10/97 while the defendants filed a counter affidavit on 10/11/97. The learned trial Judge took arguments from the parties and after reviewing the said arguments delivered a ruling on 21st da) of May, 2003 granting the order of interlocutory injunction against the defendants. Being dissatisfied with the ruling, the defendants appealed to the Court of Appeal Ibadan. The Court of Appeal delivered its judgement on 5/5/2004 allowing the appeal and setting aside the order of injunction granted by the Osun State High Court sitting at Ikire. The plaintiffs felt aggrieved and have appealed to this Court. The plaintiffs shall be referred to as the appellants while the defendants are now the respondents in this appeal. The Notice of Appeal is dated 10th May, 2004 and it contains two grounds of appeal. An amended Notice of Appeal containing 8 grounds dated 24/6/2004 was filed on 25/6/2004. The appellants formulated the following three issues for determination. They are:-

1. Whether or not the lower courts approach to the resolution or correctness of the trial courts order of interlocutor) injunction in favour of the Appellant was properly made before setting aside the order
2. Whether the lower court was right to set aside the trial courts order when the Appellants have satisfied all the conditions necessary for the granting of such an order and was so found before the order restraining the respondents from further crossing the boundary was made by the trial court
3. Whether or not the lower court findings quoted below states the true

position of the law as to when to apply for an interlocutor) injunction after a previous judgement in a case.

‘The other issue to be considered in this application is the delay of the Applicant/Respondent to file for an order of injunction since 1964 when HOS/134/64 was determined. The records show that the respondents made no efforts to secure an injunctive order against the respondents over the land complained of. The basis of the exercise of a discretionary discretion to restrain the appellant would appear to be non – existing in the application consequently an injunctive order made in 2001 in the suit below would seem to me to be unnecessary and incompetent and whether the findings constitutes true statement of the taw involving when an interlocutory injunction was to be applied for (Page 5 of the judgement on page 110 of the records of appeal)’.

The respondents framed the following two issues for determination:-

1. Whether the lower court was right when it held that the order of interlocutory injunction made by the trial court is not tied to any-identifiable area of land.
2. Whether the lower court was right when it set aside the order of interlocutory injunction granted by the trial court for failure to comply with established rules and conditions.

The issues raised in the respondents brief succinctly bring out the complaints the appellants are making in this appeal. Learned counsel who prepared the appellants brief did not state from which ground or grounds he distilled each of the three issues he formulated. All he did was to tie the issues to all the grounds and argue the issues together. Although it is permissible to argue the issues together, a good brief should indicate the grounds to which a particular issue is tied. This is to ensure that the issues formulated in the brief are related to the said grounds and to forestall the possibility of raising more issues than the grounds. See: Adeleke vs Aserifa (1987) 1 NWLR (Part 49) 284; Nwokoro vs Onuma (1990) 3 NWLR (Part 136) 22; Din vs African Newspapers (Nis.) Ltd (1990) 3 NWLR (Part 139) 392 and Imam vs Sheriff (2005) 4 NWLR (Part 914) 80.

It was argued on the appellants behalf that in an application for interlocutory injunction the law does not require that the applicant should make out a case as it should be made on the merits but it will be sufficient to show that there is a substantive issue to be tried and cited the case of Kufeji vs Kosbe (1961) ALL NLR (Part 1) 113. Learned counsel submitted that the appellants were able to show that there had been an age – long dispute of boundary between the appellants and the respondents which was settled by series of judgements the latest being Suit No. HOS/134/64 to which the survey plan No. GB101A admitted as Exhibit (D was tied when they were declared the owners of the land in dispute and granted the injunction. He said both the judgement and the survey plan were attached to the affidavit evidence in support of the application for Interlocutory- Injunction. He contended that the appellants identified four guiding principles to be established before granting such an application which the trial court applied in its ruling but the lower court did not advert its mind to these issues. It is the contention of learned counsel that the respondents are not disputing having a common boundary with the appellants between their respective farmlands or that the survey plan GB101A did not show the boundary which is the subject of the dispute or was irrelevant to the application for interlocutory injunction. He said the contention of the respondents is that the description of the farmland in dispute as given by the appellants was inadequate and that the area trespassed upon was not shown on the survey plan. He submitted that the lower court ignored the description of the land in dispute deposed to in the affidavit in support of the application while what is required in an application of this nature is only to make a prima facie case as the lower court is not called upon to decide or delve into the substantive claim. He submitted that the lower court was wrong in rejecting the survey plan attached to the affidavit in support of the application and that the Court applied the wrong approach in resolving whether the learned trial Judge order of injunction was right or wrong before it set aside the order. He submitted that the lower court was in error when it held that the survey plan No. GB101A on which the judgement in Suit No. HOS/134/64 was based could not be used in the instant case because it was not made for the substantive suit HRE/4/97.

In reply learned counsel referred to paragraphs 9 and 11 of the affidavit in support of the application for injunction as well as paragraphs 5 and 9 of the counter – affidavit and submitted that from the above depositions the exact boundary of the land in dispute is strongly contested by the parties and the conflict can only be resolved through oral evidence placing reliance on Akinsete vs Akindulire (1966) 1 ANLR 147; and Olu – Ibukun vs Olu – Ibukun (1974) 2 SC 41. He said the trial court ignored this and so the lower court was right when it upheld the respondents argument that the identity of the land in respect of which the trial court granted the order of interlocutory injunction was uncertain and unidentifiable. He said plan GB101A which was made in respect of Suit No. HOS/134/64 has no relevance nor direct reference to suit No. HRE/4/97 and there is no area of land where the injunction order made by the trial court can be tied to. He argued that the order of interlocutory injunction made by the trial court in the pending suit HRE/4/97 cannot be tied to plan No. GB101A tendered as Exhibit D m suit HOS/134/64. He also pointed out that the parties are not the same and Suit No. HOS/134/64 was instituted by the plaintiff in his personal capacity while in suit HRE/4/97, the plaintiff sued in a representative capacity. While agreeing that the filing of a survey plan is not necessary, he argued that where the boundaries are disputed and the description of the land is inadequate as in this case where an ambiguous plan Exhibit D* used in 1964 in HOS/134/64 was relied on by the trial court in another suit HRE/4/97 filed 33 years after, a clear survey plan becomes a necessity. Heavy reliance was placed on Dabup vs Kalo (1993) 9 NWLR (Part 317) 254 and A.C.B. LTD vs Awogboro (1996) 3 NWLR (Part 434) 20 for this submission.

Regarding the urgency of granting the interlocutory injunction learned counsel reasoned that there was no such urgency since the application which was filed in 1997 was not moved until 2001. Referring to Odutola vs Lawal (2002) 1 NWLR (Part 749) 633 and Globe Fishing Industry Ltd. vs Coker (1990) 7 NWLR (Part 162) 265 learned counsel submitted that an applicant for an injunctive order must clearly show that there is need to preserve the subject matter over which he seeks an injunction. He submitted that the trial court did not properly consider all the conditions that must be fulfilled before granting the injunctive order. He said the judgement exhibited HOS/134/64 as representing the legal right over the land in dispute cannot assist the appellants.

The granting of an injunction is an equitable remedy and therefore discretionary. Breach of an injunction is a contempt of court.

The preservation of the subject matter res in dispute or the maintenance of the ‘status quo is achieved through the judicial process of the equitable order of injunction. According to Blacks Law Dictionary 6th Edition Page 714: ‘injunction is a court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury’

In Adenma vs Odunewu (2001) 2 NWLR (Part 696) 184, this Court per Karibi

– Whyte JSC defined injunction at page 185 thus: ‘an equitable order restraining the person to whom it is directed from doing the things specified in the order or requiring in exceptional situations the performance of a specified act’.

Since injunction is an equitable remedy, it is usually granted at the discretion of the court which must be exercised judicially and judiciously. For the court to exercise its discretion in favour of an applicant certain conditions must exist and this must be evidenced in the affidavit accompanying the motion on notice. The conditions for grant of interim and interlocutory injunctions are basically the same except for the element of urgency in interim injunction which is not pronounced in interlocutory injunction. See: Modern Civil Procedure Law by A.F Afolayan and P.C Okorie published by Dee Sage Nigeria Limited 2007 at page 198. The conditions include:

(a) Existence of a legal right

(b) Substantial issue to be tried

(c) Balance of convenience

(d) Irreparable damage or injury

(e) Conduct of the parties

(f) Undertaking as to damages.

In Buhari vs Obasanjo (2003) 17 NWLR (Part 850) 587, this Court per Tobi JSC spelt out the principles guiding the application of interlocutory injunction at pages 648 – 649 as follows:-

‘Some of the principles or factors to be considered in an application for interlocutory injunctions are:

1. There must be a subsisting action. See: The Praying Band of C and S vs Udokwu (1991) 3 NWLR (Part 182) 716
2. The subsisting action must clearly donate a legal right which the applicant must protect. See: Kotoye vs CBN (1989) 1 NWLR (Part 98) 419; Woluchem vs Wokoma (1974) 3 SC153; Obeya Memorial Hospital vs Attorney – General of the Federation (1987)3 NWLR (Part 60) 325
3. The applicant must show that there is a serious question or substantial issue to be tried. See: Kotove vs CBN (supra); Nigerian Civil Service Union vs Essien (1985) 3NWLR (Part 12) 306; Nwose vs Mbaekwe (1973) 3 ECSLR 136
4. And because of 3 above, the status quo’ should be maintained pending the determination of the substantive action. See: Kotoye vs CBN (supra); Fellowes vs Fisher (1975) 2 ALL ER 829; American Cyan amid Co. vs Ethicon Ltd. (1975) AC 396.
5. The applicant must show that the balance of convenience is in favour of granting the application. See: Kotoye vs CBN (supra); Obeya Memorial Hospital vs Attorney – General of the Federation (supra); Akin lose vs A.I.T Ltd. (1961) WNLR 116
6. The applicant must show there was no delay on his part in bringing the application. See: Kotoye vs CBN supra.
7. The applicant must show that damages cannot be adequate compensation for the injury he wants the court to protect. See: Kotove vs CBN (supra); Obeya Memorial Hospital vs Attorney General of Federation (supra)
8. The applicant must make an undertaking to pay damages in the event of a wrongful exercise of the courts discretion in granting the injunction. See: Kotoye vs CBN (supra); Itama vs Osaro-Lai (2000) 6 NWLR (Part 661) 575’. The injunction granted by the trial court was set aside by the lower court on the grounds that the injunction was not tied to any plan since no plan has been filed in Suit No. HRE/4/97 and there is no declaration of title being claimed in the said suit. The court reasoned that the plan in the judgement in Suit No. HOS/134/64 will certainly not avail the respondent in Suit No. HRE/4/97. It is to be noted that Suit No. HRE/4/97 was originally filed as Suit HIW/9/97 when it was before the Osun State High Court sitting at Iwo. It was later transferred to Ikire and it was registered as HRE/4/97. The motion for interlocutory injunction was filed when the suit was still bearing Suit No. HIW/9/97. In paragraphs 9. 10, 11. 12, 13, 14, 15, 16 and 17 of the affidavit in support of the motion for interlocutory injunction deposed to by Rufus Oni Oladimeji, 2nd Plaintiff/Applicant, he averred as follows:-

‘9. That the farmland in dispute form (sic) boundary with the defendants on Ede Community land.

10. That the defendants farms (sic) on the other side of the boundary between Ede and Ogi territories, in other words both the Plaintiffs/Applicants and Respondents shared common boundary.
11. That the boundary marks between the plaintiffs and the defendants were Erugbe stream, Odam tree, Oniyangi stream, Peregun trees and Olodo Kekeleke stream which were shown in a survey plan No. 101A of 1964 drawn by G.E. Gilbert tendered in Suit No. HOS/134/64, a certified copy of which we have not been able to lay our hands.
12. That I have instructed our Solicitors to apply for a copy of the Survey Plan from the High Court Oshogbo but our Solicitor told me which I believed that the case file in Suit No. HOS/134/64 could not yet be found in the High Court Registry Oshogbo but we have a copy of the Survey Plan which my solicitor told me and which I believed will be used at the hearing of this motion.
13. That the defendants family (including the first defendant in the instant case) agents, privies and servants had once forcibly entered the farmland in dispute and when they refused to abide by our Community heads warnings an action was taken against the defendants family in Suit No. 47/50 and judgement was in our favour.
14. That again the defendants led by the first defendant violated the Customary Courts order in Suit No. 47/50 claimed that the judgement was a waste paper document and therefore not enforceable and thereby was no more honoured; we were forced to take another action in Oshogbo High Court in Suit No. HOS/134/64 between Josiah Akinfende representing the Ogi Community and Bello Adedoja & 3 Ors. The first defendant in the instant suit was the ring leader.
15. That judgement was also given in our favour. Ogi Community were declared the owner of the farmland in dispute, damages was awarded against the defendants family for trespass and were equally restrained not to cross the boundary and enter the farm land in dispute as shown in Survey Plan 101A/64. A copy of the judgement is attached herewith and marked Exhibit A9
16. That notwithstanding the judgement in Suit No. HOS/134/64 of which there was no appeal the defendants had since 1996 been crossing the boundary again and continued to reap our palm fruits on the farmland in dispute and refuse to leave our farmland despite our warnings and we were disallowed from reaping our palm fruits.
17. That by reaping the palm fruits the defendants have deprived us the means of our source of income from which we maintain our family and livelihood’.

A further affidavit was deposed to by Rufus Oni Oladimeji on 17th December, 1997 and he stated in paragraph 3 thereof:-

‘3. That a copy of the Survey Plan No. 101A referred to in paragraphs 11 and 12 of the affidavit which clearly showed the boundaries of the land between the Plaintiffs and the defendants which formed the basis of judgement in Suit No. HOS/134/64 and the clear copy of the said judgement are attached herewith and marked Exhibit D and DI’ “

In the counter – affidavit of Mustapha Adisa, 3rd respondent in the application he deposed to the following facts in paragraphs 5, 6, 7. 8, 9, and 12

thereof:-

‘5. That I do not know the identity of the land in dispute

6. With further reference to paragraphs 3 to 8 of the applicants affidavit I say that the land in dispute forms part of a large tract acquired by conquest by Timi Ajenju more than three hundred years ago.
7. The said Timi Ajenju settled the ancestors of the defendants on the said land in dispute as customary tenants.
8. Both the ancestors of the defendants and their successors have been in possession of the said land paying ishakole to reigning Timi of Ede annually
9. That with further reference to paragraphs 9, 10 and 11 of the applicants affidavit 1 say that the land in dispute does not form boundary with the applicants land but it is a continuous tract of land acquired by Timi Ajenju by conquest.
10. That with further reference to paragraph 17 of the applicants affidavit and (sic) say that we have been reaping the palm fruits as of right’

In the determination of any interlocutory application pending the trial of the substantive case, care should be taken not to make pronouncement which may prejudice the trial of the claims filed and still pending before the Court. To do otherwise is to prejudge the matter in respect of which evidence is yet to be led. See: A. M. F. Asbaje vs Ibru Sea Food Ltd. (1972) 5 SC 50; Globe Fishing Industries Ltd vs Chief Folarin Coker(1990 7 NWLR (Part 162) 265.

In paragraph 39 of the statement of claim the Plaintiffs’ claim against the Defendants jointly and severally are as follows:-

“1. N2S 000, 000.00 (Two Million Nairn) for general and aggravated damages for disobeying the judgement of the High Court in Suit No. HOS/134/64. Josiah A kin fen de vs BelloAdedoja & Ors delivered on 31st May, 1967 by deliberately crossing the boundary between the plaintiffs land and Ede Community as represented by the Defendants the subject matter of the suit in HOS/134/64 and reaped the Plaintiffs palm trees thereby suffered an untold hardship and injury.

2. Perpetual Injunction restraining the defendants jointly and severally, agents, servants of the defendant or any member of Babasanya family or members of Ede Community from further crossing the boundary as demarcated in the survey plan No. GB101A and enter Ogi land subject matter of the judgement in Suit No. HOS/134/64 and reap their palm trees’.

If Suit No. HOS/134/64 settled the boundary between the parties, there would be no need to initiate a fresh action in Suit HRE/4/97 since the appellants in the present suit can execute the judgement already obtained in Suit HOS/134/64 by initiating committal proceedings against the respondents. It is to be noted that the contempt proceedings were struck out because the parties against whom the contempt proceedings were initiated were not parties to the suit but were described as privies of the defendants for which leave of court was needed before the judgement in HOS/134/64 could be enforced against them. Furthermore the Plaintiff in Suit HOS/134/64 did not sue in a representative capacity. In Suit No. HOS/134/64, the Plaintiff Josiah Akinfende did not describe himself as representing Ogi Community. Although the learned trial Judge observed in his judgement that the land in dispute was between Ede town and Ogi village, the claim by the plaintiff was that the defendants crossed the boundary between the plaintiff and defendants and reaped crops unlawfully in plaintiffs farm.

Since the parties in Suit HOS/134/64 are different from the parties in Suit No. HRE/4/97 any pronouncement made to grant the interlocutory injunction in HRE/4/97 will prejudice the trial in the substantive suit. It is safer to order an accelerated hearing of the substantive action.

The affidavit and counter – affidavits filed would require calling oral evidence to resolve the conflicts. The lower court was right in allowing the appeal.

I find that the appeal lacks merit and it is accordingly dismissed. The order setting aside the interlocutory injunction in suit HRE/4/97 is hereby affirmed.

In its place an accelerated hearing of the suit is hereby ordered. No order on costs is made.

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SC. 132/2004