Obeya Memorial Specialist Hospital Ayi-onyema Family Limited V. Attorney-general Of The Federation & Anor. (1987)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C.

This is an interlocutory appeal. The Plaintiffs/appellants instituted an action against the respondents in the Benue State High Court of Justice at Makurdi claiming:

(1) a declaration that the entry of the land and buildings of the Obeya Memorial Specialist Hospital Oturkpo Town in Oturkpo Local Government Area by Army and Airforce personnel as well as by officers and servants of the Government of Benue State was unlawful and amounts to trespass;

(2) a declaration that the Government of Benue State has no right to take or retain possession of the said land and buildings from the plaintiff save in accordance with due process of law;

(3) an order for inquiry into damages suffered by the plaintiff as a result of the unlawful entry of the said land and buildings (a) by Nigerian Army and (b) Nigerian Air force personnel;

(4) an order for inquiry into damages suffered by the plaintiff as a result of the trespass committed by the Benue State Government on the plaintiff’s goods as well as on the said land and buildings;

(5) an order for payment of appropriate sums as compensatory and/or exemplary damages to the plaintiff for the acts of trespass aforementioned; and

(6) an injunction restraining all officers of the Nigerian Army and Airforce and all officers. servants and agents of the Benue State Government from continuing the said acts of trespass or committing further acts of trespass or from preventing the plaintiff, its officers, servants and licensees from obtaining access to the land and buildings used for the purposes of the Obeya Memorial Specialist Hospital.”

The appellants followed the filing of the action with an application by motion on notice for:

“(1) An order restraining all the officers and men of the Nigerian Army and the Nigerian Air Force by themselves, their servants or agents or otherwise from preventing the plaintiffs from obtaining access to and occupying the premises known as Obeya Memorial Specialist Hospital Ayi-Onyema Family Limited:

(2) An order requiring the Federal Government and/or the Benue State Government to restore possession of the said premises to the plaintiffs;

(3) An order restraining the Federal Government and/or Benue State Government by themselves, their servants or agents or otherwise from delivering possession of the said premises to any person other than the plaintiffs or its duly authorised agents; pending the determination of the above action and for such further and or other orders as this Honourable Court may deem fit to make in the circumstances.

The application was heard by the Chief Judge of Benue State, Alhassan Idoko, and on the 7th day of May, 1986, he dismissed the application in a considered Ruling. In the course of his Ruling, the learned Chief Judge made a lot of pronouncements which are not reflected by the order of dismissal. He said:

“I am bound by the opinion of the Supreme Court that even in this military regime, the rule of law is in operation that no government in the Federation should put (sic) (take) Law into its hand as that will be an encouragement to tyranny. No court of law will rejoice at a usurpation of its powers…………….

I am not too sure whether the courts can gloss over a provision of a statute such as the Edict establishing this panel even that the contents or constitutionality of it avail when such issues are raised. In that wise, I am not prepared to say that a case of usurpation of judicial powers has been made out. I agree that it might have raised eye-brows that military men were brought to ensure the take over of the hospital through the action of the military government. The affidavit evidence says that it is this Recovery Panel that approached the Governor to (sic) that purpose. I think that is entirely wrong…….We have never known a Governor or military personnel enforcing the judgment of a tribunal or panel. So that the bringing of military personnel and not the police to execute the panel’s order is entirely out of tune with the usual and normal way of enforcing such orders Even though the facts disclose that the panel contacted the Governor for such enforcement, it is all wrong, because the Governor is not the proper official to be approached to carry out such enforcement. It was only because the panel was intent on using military personnel that it made that move. That notwithstanding, the panel purported to enforce an order that fell within its powers. So that even though the use of military personnel is condemnable, the take-over itself is said to be pursuant to an order of the panel … For the time being, I am prepared to say that the government has furnished some basis in the affidavit evidence for taking over the hospital.

Government says it does not know the applicant and that the hospital it has taken over belongs to Obande Obeya and also that it was Obande Obeya who was in occupation and possession of the land and the building housing the hospital; that Obande was indebted to it and that since Mr. Obeya was not responding to the panel’s demands to pay up indebtedness to government, his property, the hospital was seized. Obande is not complaining in this matter but the applicant. Was there a mistaken identity as to who owns or was in possession of the hospital Applicant said they are licencee of Obeya Memorial Hospital. Obeya Memorial Hospital is owned by Obande and Sons. The period when the licence took effect is not yet disclosed. And even though there is a hospital mentioned as Obeya Memorial Specialist Hospital, it is not yet disclosed whether it is registered as a private hospital under the prevailing law of the State and by who. On the face of these facts, it appears not, to me prudent to grant this equitable relief to the applicant.”

The appellant was dissatisfied with the ruling and appealed to the Court of Appeal on four grounds. The grounds were:

(1) The learned Chief Judge erred in law in failing to observe that at the stage at which the proceedings stood when he gave the decision appealed from, he was not called upon to determine any of the controversial issues of law and fact which arise between the parties and which require further oral and documentary evidence and addresses before the court can properly determine the issue.

(2) The learned trial Judge erred in law and on the facts in failing to observe that it was improper for him to give consideration to various issues of fact and law not raised by counsel for the defendant without giving opportunity to the plaintiffs’ counsel to address him on such issues;

(3) The learned Chief Judge erred in raising a doubt as to whether the plaintiff was in occupation of the premises when no such doubt was expressed by the defendant;

(4) The learned Chief Judge erred in law in making finding that “the government has furnished some basis in the affidavit evidence for taking over the hospital.”

Particulars of Error

(a) If (which is not conceded) it is the case that Obande Obeya is the owner of the hospital, it was improper for the learned Chief Judge to make the finding when Obande Obeya was not represented as a party to the proceedings;

(b) The affidavit of Obande shows clearly that the person in possession of the buildings housing the hospital is the plaintiff company and the application for mandatory injunction ought to have been considered on the basis of that allegation;

(5) The learned Chief Judge erred in law in failing to observe that the defendants having virtually admitted that it took possession vi et armis, he ought to have ordered them to restore possession to the plaintiff herein.

The appeal came up for hearing before the Court of Appeal (Coram, Agbaje, Abdullahi and Macaulay, JJCA.) Jos. Again, the applicant was unsuccessful as the Court in a considered judgment dismissed it.

In his judgment (concurred in by Abdullahi and Macaulay, JJCA.) Agbaje, JCA, commented in the concluding paragraphs as follows:)

“If I may go back to the case of Agbor v. Metropolitan Police Commission, (supra) the possession of the plaintiff in the case prior to the wrong they complained of were not in dispute and in fact there was evidence that Mrs. Agbor occupied the house in dispute in the case with her children for some six months before she was ejected.

Apart from the averments in the affidavits of the plaintiff, as to its being in occupation of the hospital in question there is no evidence from the plaintiff in support of this averment.

Truly enough, paragraph 4 of the affidavit of Obande Obeya says that the plaintiff is in occupation of the land and the buildings housing the Obeya Memorial Hospital with the authority and as a licensee of Obeya Memorial Hospital, Obeya Memorial Hospital is an unincorporated association. As I have said, it is owned by members of Obeya family. One would have expected in an application of this nature some evidence as to when and how members of Obey a family passed any interest in the hospital to the plaintiff before one can come to the conclusion that the plaintiff has made good his assertion that he is in occupation of the hospital with the licence of the owners thereof.

Again, if these were not so, one would have expected the plaintiff, in its affidavit before the court, to show what acts it relies upon as constituting its occupation or possession of the hospital in question. The affidavits for the plaintiff in support of its application are deficient in these two particulars which I have just highlighted. If I may put it in another way, the affidavit for the plaintiff alleges occupation or possession of the premises to which the reliefs sought in the interlocutory application relate. But the affidavit does not go on to state the acts of occupation or possession by the plaintiff from which the inference may be drawn that the plaintiff was actually in possession or occupation of the premises.

In the circumstances, I cannot hold that on the material placed before the lower court, the latter should have been satisfied that the plaintiff has made out a strong prima facie case that it was in possession of the premises the subject matter of the interlocutory application before the wrong it complained of.

For the reasons I have given in this judgment, I cannot therefore say that the learned trial Chief Judge was wrong in refusing the interlocutory application.

The appellant was not still satisfied and therefore lodged an appeal against the decision of the Court of Appeal to this Court on three grounds of appeal which read:

1. The court below erred and misdirected itself in law in applying to the facts and circumstances of this case what it described as “the age long requirements that in an application for an interlocutory injunction, the applicant, to succeed, must establish a probability or a strong prima facie (case) that he is entitled to the right of whose violation he complains.”

Particulars of Misdirection

(a) The alleged requirement has been criticized in American Cyanamid v. Ethicon Ltd. (1975) AC. 396.

(b) On the facts of his case it was sufficient to show that the plaintiff was a licencee of the Obeya family;

(c) In Agbor v. Melropolitan Police Commissioner (1969) 1 WLR 703 and Ojukwu v. Governor of Lagos State (1986) 3 NWLR 39 the plaintiff was a licencee and the true owners of the premises (The Biafran Government and Ojukwu Transport Ltd.) were not parties to the proceedings, at any rate at the stage when interlocutory injunction was granted;

2. The Court below erred in law in failing to observe that for the purpose of the interlocutory application, the affidavit of John Ede (a director of the plaintiff company) and of Obande Obeya (a member of Obeya family) are sufficient to establish status of the plaintiff company as a licensee of the Obeya family on the premises more so as those affidavits were not effectively contradicted by the purely hearsay affidavit evidence of the Chief Law officer of Benue State.
3. Irrespective of the outcome of the appeal before it, the court below erred in law and failed to exercise its discretion judicially in not directing that the case be heard by another Judge of the High Court.

Particulars of Error

The court below found that the learned Chief Judge has decided very vital issues of fact which can only properly be decided at the trial of the substantive suit. That being so, it ought to have directed that the substantive trial be held before another Judge.

As the Chief Judge had transferred the substantive case from his court the appellants’ counsel did not in oral argument press the issue of transfer.

The questions posed by the grounds of appeal for determination in this appeal and formulated in the brief of arguments filed by the appellant are two fold. They are:

“(1) What are the quality and quantity of the evidence which the plaintiff require to establish in the High Court to support its application for interlocutory injunction

(2) Were the affidavit evidence of John Ede and Obande Obeya of the quality and quantity required

Chief F.R.A. Williams, SAN, submitted both in the appellant’s brief and at the oral hearing of this appeal that in this application all that the plaintiff/appellant need show is that the action is not frivolous or vexatious. He commended the comment of Lord Diplock in American Cyanamid v. Ethicon Ltd. (1975) AC. 396 at 407G that the use of such expressions as “a probability”, “‘a prima facie case” or a strong prima facie case” in the con of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object to be achieved by this form of temporary relief. He contended that it is wrong to require the appellant to produce evidence to demonstrate that he is bound to succeed in the trial of the substantive case. He also relied on the observation of Coker, J. in Kufeji v. Kogbe (1961) 1 All NLR. 113 at 114 that

“in an application for interim relief by way of injunction, it is not necessary that a plaintiff or applicant should make out a case as he would on the merits, it being sufficient that he should establish that there is a substantial issue to be tried at the hearing.”

He also cited the case of Egbe v. Onogun (1972) 1 All NLR (Part 1) 95 at 98 where the above passage was cited with approval.

Learned counsel submitted that the affidavit evidence produced by the plaintiff/appellant clearly established the fact that there is a serious substantial question to be tried. He submitted that it was and is not necessary to adduce oral evidence to prove ‘averments’ (sic) in the affidavit and cited Ladunni v. Kukoyi (1972) 1 All NLR 133 where this Court held that it was not necessary for a person applying for interlocutory injunction to restrain trespass pending trial to proceed further.

The contents of an affidavit or facts deposed to in an affidavit are deposed on oath. Those set out in the statement of claim are not. The affidavit evidence amount to proof whereas the averment in the statement of claim is not. He then cited Egbe v. Onoglln (supra). He contended that the plaintiff is only the operator and manager of the hospital through staff, officers and agents employed by it. These are the people prevented from carrying out their functions by the military and army personnel.

Learned counsel contends that the appellant being a body corporate can only be and is in occupation of the premises through these employees. He submitted that appellant need not prove proprietary interest in the premises to succeed and cited Agbor v. Metropolitian Police Commissioner (supra) and Ojukwu v. Governor of Lagos State (supra). It is enough if the appellant is lawfully in occupation with the authority of the owner. He then submitted that the affidavit evidence of John Ede and Obande Obeya were sufficient to support the application. He contended that on the issue of occupation, the affidavit evidence of the Attorney-General of Benue State is all hearsay and failed to contradict the facts sworn to by the plaintiffs/appellants’ witnesses.

The learned D.P.P. for Benue State, Mr. Aboyi J. Ikongheh contended that the appellant failed to prove occupation although he admitted that the army and airforce personnel who seized the hospital did not find Obande Obeya in occupation when they entered the premises. He submitted that Obande Obeya was a debtor to the government and in the belief that the hospital belonged to him, the army and airforce personnel, on the request of the Recovery of Public Fund and Property Panel through the Military Governor siezed the property in satisfaction of any amount he is owing.

The learned D.P.P.submitted that the appellant did not make out a prima facie case to entitle him to the interlocutory injunction and interlocutory mandatory injunction prayed. He contended that the facts deposed in the supporting affidavit of John Ede and Obande Obeya are not sufficient to show that the case is not frivolous or vexatious. He further contended that Agbor’s and Ojukwu’s case are distinguishable on the facts from the instant appeal.

J.B. Ajala Esq., Dircetor of Civil Litigation in the Federal Ministry of Justice appearing for the first respondent adopted the submissions of Mr. Ikongbeh. He asked that the appeal be dismissed since the appellants conceded that they have nothing to complain against the first respondent. He submitted that an applicant must, to succeed, in an application for interim injunction establish a strong prima facie case. He then cited Woluchem v. Inko Taria Wokoma (1974) 3 SC. 153. He further submitted that where damages would compensate for any injury done, the application should be refused. He submitted that Benue State Government is in a position to pay whatever damages that their action now being challenged may entail. Chief Williams, SAN. in reply pointed out that the appellant joined the Attorney-General of the Federation because the army and the airforce personnel were involved. He commented that even if Obande Obeya were the sole owner of Obeya Memorial Hospital, it would not be right to seize it by force and referred to the provision of section 40 of the Constitution of the Federal Republic of Nigeria 1979. He concluded by submitting that the affidavit of Obande Obeya clearly proves that the plaintiff was in possession.

It is common ground that the Benue State government took over Obeya Memorial Hospital with the assistance of army and airforce personnel. It is important to keep in clear view the application before the court. Briefly, it is an application for interim injunction pending the determination of the substantive suit. The interlocutory nature of the application determines the nature of case to be made out by the applicant to entitle it to the order. The nature of the case determines the quantum of proof or evidence.

What are the principles governing the grant of an interlocutory injunction The governing principles are fairly well settled although the statement and restatement of the principles has in some cases been in terms which have created confusion. This was clearly stated by Lord Diplock in the case of American Cyanamid v. Ethicon Limited (a House of Lords English case) (1975) AC. 396 at 407 which reads:

“The court, however, expressly deprecated any attempt to fetter the discretion of the court by laying down any rule which would have the effect of limiting the flexibility of the remedy as a means of achieving the objects I have indicated above. Nevertheless, this authority was treated by Graham J. and the Court of Appeal in the instant appeal as leaving intact the supposed rule that the court is not entitled to take account of the balance of convenience unless it has first been satisfied that if the case went to trial upon no other evidence than is before the court at the hearing of the application the plaintiff would be entitled to judgment for a permanent injunction in the same terms as the interlocutory injunction sought.

Your Lordships should in my view take this opportunity of declaring that there is no such rule. The use of such expression as “a probability”, “a prima facie case”, or “a strong prima facie case” in the con of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this form of temporary relief. The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried.

It is not part of the courts function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature consideration. These are matters to be dealt with at the trial.”

When an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be a violation of the plaintiff’s legal right is made upon contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesis, the existence of the right or the violation of it or both is uncertain and will remain uncertain until final judgment is given in the action. It was to mitigate the risk of injustice to the plaintiff during the period the uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction. However, since the middle of 19th century this has been made subject to his undertaking to pay damages to the defendant for any loss sustained by reason of the injunction if it should he heard at the trial that the plaintiff had not been entitled to restrain the defendant from doing what he was threatening to do. The object of interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty wee resolved in the defendant’s favour at the trial. The court must weigh one need against another and determine where the “balance of evidence lies.” It could be seen that the High Court and the Court of Appeal surrendered their discretion to the vagaries of ascertaining from affidavit evidence conclusive proof of proprietary or occupational rights at this early stage.

In cases where the legal rights of the parties depend upon facts that are in dispute between them, as in the instant appeal, the evidence available to the Court at the hearing of the application for an interlocutory injunction is incomplete. It is given on affidavit and has not been tested by oral cross-examination. The supporting affidavit of John Ede and Obande has not been tested in oral cross-examination. Neither has the counter-affidavit of Bernard Iyorbyam Horn, the Attorney General of Benue State been tested in oral cross-examination.

The purpose sought to be achieved by giving to the court discretion to grant such injunctions would be stultified if the discretion were clogged by a technical rule forbidding its exercise if upon that incomplete untested evidence the court evaluated the chances of the plaintiff’s ultimate success in the action at 50 per cent or less but permitting its exercise if the court evaluated his chances at more than 50 per cent.

The confusion generated by the use of the term strong prima facie case has been imported into some of our judicial authorities which followed English decisions.

In Abel O. Woluchem v. Dr. Charles Inko Tariah Wokoma (1974) 3-5 SC. 153 at 156, Ibekwe, J.S.C. delivering the judgment of the Supreme Court stated the rule thus:

“The rule is that a plaintiff seeking an interlocutory injunction must establish a strong prima facie case for the existence of his right and at least that he was likely to succeed on that issue and also a prima facie case of infringement of his right. In exercising its discretion to grant the relief, the court would have regard to the balance of convenience.”

Then he went on to comment:

“We fail to see how a court of law could be able to satisfy all or any of these principles before pleadings were filed and without evaluating some sort of evidence (be it oral or affidavit evidence by both parties).”

Another case worthy of mention in this regard is Ladunni v. Kukoyi & Ors (1972) 1 ALL NLR (Part 1) 133. Explaining the principle, Coker, J.S.C. delivering the judgment of the Court, said at page 138:

“The principle seems to us to be clear and in short an interim injunction would be granted to a party who shows that he has a prima facie case on a claim of right or in other words that, prima facie, the case he has made out is one which the opposing party would be called upon to answer and that it is just and convenient to the court to intervene and that unless the court so intervenes at that stage, the other party’s action or conduct would irreparably alter the status quo or render ineffective any subsequent decree of the court.”

The court had earlier at page 137 adopted with approval the dictum of Ungoed-Thomas, J. in In Donmar Production Ltd. v. Bart and Ors. (1967) 1 WLR 740 at 742 with respect to this point which reads:

“So in an application for an interlocutory injunction the applicant must establish a probability or a strong prima facie case that he is entitled to the right of whose violation he complains and, subject to this being established, the governing consideration is the maintenance of the status quo pending the trials.

It is well established that in deciding whether the matter shall be maintained in status quo regard must be had to the balance of convenience and to the extent to which any damage to the plaintiffs can be cured by payment of damages rather than by the granting of injunction. Of course the burden of proof lies on the applicant throughout.”

Of this statement, Coker, JSC, said at p. 137:

“we think this is a correct proposition of the law and we propose to apply it to the case in hand.”

Because of the confusion caused in the minds of Judges by the use of the cliche “prima facie case or probability or strong prima facie case”, the law with respect to interim injunction has been aptly described by Coker, JSC. (see Ladunni v. Kukoyi & Anor. (supra) at p.136) as constituting one of the most difficult sections of our law. The difficulty exists not because the law is recondite but because the ascertained principles must be subjected at all times to a rather amorphous combination of facts which are perpetually different in every case.

The learned trial Judge, whose decision came to the Supreme Court on appeal and was affirmed, stating the principle which guided him, said

“….

In a case of interim injunction, it is not necessary to determine the legal right to a claim since at that stage, as it is in this case, there can be no such determination; because pleadings have not been filed, no issue joined, and no oral evidence adduced; therefore there cannot be any finding on the merits.”

Having examined the principles governing the grant of interlocutory or interim injunction, it is now necessary to examine the facts of this instant appeal. These are set out clearly in the short affidavit of John Ede containing 11 paragraphs, paragraphs 1 to 10 which contain the material facts read:

“1. I am a director of the plaintiff company and by virtue of this I am familiar with the facts to which I depose;

2. The Plaintiff has filed an action against the Federal Government and the Benue State Government claiming the following reliefs:

(i) a declaration that the entry of the land and buildings of the Obeya Memorial Specialist Hospital Oturkpo Town in Oturkpo Local Government Area by Army and Airforce personnel as well as by officers and servants of the Government of Benue State was unlawful and amounts to trespass:

(ii) a declaration that the Government of Benue State has no right to take or retain possession of the said land and buildings from the plaintiff save in accordance with due process of law;

(iii) an order or inquiry into damages suffered by the plaintiff as a result of the unlawful entry of the said land and buildings.(a) by Nigerian Army and (b) Nigerian Airforce personnel;

(iv) an order for inquiry into damages suffered by the plaintiff as a result of the trespass committed by the Benue State Government on the plaintiffs goods as well as on the said land and buildings;

(v) an order for payment of appropriate sums as compensatory and/or exemplary damages to the plaintiff for the acts of trespass aforementioned; and

(vi) an injunction restraining all officers of the Nigerian Army and Airforce and all officers, servants and agents of the Benue State Government from continuing the said acts of trespass or committing further acts of trespass or from preventing the plaintiff, its officers, servants and licensees from obtaining access to the land and buildings used for the purposes of the Obeya Memorial Specialist Hospital.

3. At all times material to this action, the plaintiff was in occupation of the land and buildings in Oturkpo Local Government Area, Benue State which buildings are used for the purpose of a hospital known as Obeya Memorial Specialist Hospital.
4. The said Hospital was duly registered as a medical institution pursuant to’ the provisions of the Private Hospital Law 1963 Cap. 100 Revised Laws of Northern Nigeria. The plaintiff will rely on the Certificate of Registration dated 17th December, 1982 issued by the Ministry of Health Benue State of Nigeria;
5. On 24th January, 1986, some 30 Nigerian Army personnel and about 10 Nigerian Airforce personnel, all armed entered the land and buildings used for the purposes of the hospital, and effectively took possession of the same;
6. On 25th of January, 1986, the Benue State Commissioner for Health, Benue State, Mrs. Lucy Aluor after inspecting the whole hospital, carted away all the records of the hospital including all personal files of all staff;
7. On 6th February, 1986, the Military Goyernor of Benue State, Group Captain Jonah David Jang, in company of the Commissioner for Health, Benue State, Mrs. Lucy Aluor, visited the hospital and ordered that the security walls of the hospital be increased in height by the Benne State Ministry of Works and Housing;
8. On 7th February, 1986, officials from the Benue State Ministry of Health arrived with about 10 extra soldiers heavily armed and summoned all the staff and served most of the staff with termination letters with effect from 7th February, 1986. They then ordered all patients on admission in the hospital out of the hospital;
9. The hospital has now remained closed to both staff and patients since then and it is heavily guarded by armed personnel;
10. To the best of my knowledge, information and belief, unless restrained by order of court, the officers and men of the Army now occupying the said hospital and the Benue State Government intend to continue to keep the plaintiff and its agents, officers, servants and licensees out of possession of the premises permanently or for an indefinite period and also to keep them from entering the said premises.

The Attorney-General of Benue State, Mr. Bernard Iyorlyam Horn deposed to a lengthy counter-affidavit with which he exhibited many documents concerning Obeya Memorial Hospital. One of the documents shows that the plaintiff was incorporated on the 2nd day of September, 1985. It was the certificate of incorporation of Obeya Memorial Specialist Hospital Ayi-Onyema Family Limited.

Mr. Ache Uche a civil servant also deposed to a counter-affidavit paragraph 2 of which was to the effect that Obeya Obande on 26th June, 1985 admitted to the panel on Recovery of Public Fund and Property that the hospital was a joint project between him and his family. Obande Obeya also swore to an affidavit in reply to the counter-affidavit on 10th April, 1986.

Paragraphs 8 and 9 of the affidavit read:

“8. The buildings comprising the hospital were financed by the Obeya family and not me personally;

9. The plaintiff company was incorporated by the Obeya family and other persons to manage and run the hospital. It is incorrect to suppose that the plaintiff company is required to register for the purpose of operating or managing the business of the hospital.”

He also exhibited a copy of the certificate of occupancy issued to the Obeya Memorial Hospital to hold the land for a term of 30 years from 1st day of August, 1982.

From the facts before the Court, it cannot be denied that there is a serious question to be tried and that the burden of proof on the applicant at this stage has been discharged. There is affidavit evidence that the appellant was in occupation of the hospital building and operating the hospital services. The action of the respondent has caused a serious disruption of the services. The seizure of the hospital buildings by heavily armed Army and Airforce personnel from unarmed law abiding citizens should not be encouraged or applauded in a democratic society such as ours where the Rule of Law reigns. It is more honourable to follow the due process of law. It is also more respectful and more rewarding to follow such a course.

The question may be asked “what has the Benue State Government gained by the seizure so far The answer is “nothing.” It has not recovered the debt owed to it by Obaode Obeya. Instead it has found itself saddled with costly litigation. It may be contended that the Benue State Government followed the due process of law in that it was the powers vested in the Recovery Panel established by the Recovery of Public Funds and Property (Special Provisions) Edict 1983 that was exercised that led to the seizure of the Obeya Memorial Specialist Hospital. The power vested in the panel was to be exercised against the property of any person indebted or liable to the government or agency of the State. This is emphasised in the provision of section 5(e) of the Edict which reads:

“For the effective carrying out of its function under this Edict, the Recovery Panel shall have power –

‘to take possession of and sell at public auction any movable or immovable property of any person indebted or liable to the government or agency of the State, or surcharged by the government, in satisfaction of the debt or surcharge.”

The counter affidavit of Patrick Ache Uche sworn on 3rd of April, 1986 in paragraph 2 shows quite clearly that Obande Obeya had given the panel information that the hospital was a joint project between him and his family. It reads:

“That when Obande Obeya appeared before us on 26th June, 1985, and was questioned in relation to the hospital, he is said to own, he admitted that the hospital was a joint project between him and his family. That I hereby exhibited a certified true copy of the relevant pages of the transcript of our verbatim reporters minutes of out proceedings of the day and mark it as Exhibit POV1”

There is affidavit evidence from Obande Obeya on this issue. In the light of the affidavit evidence, the Court of Appeal and the High Court erred in holding that the appellant failed to prove that it was in occupation for the purpose of the application for interim injunction and mandatory injunction.

A force of 30 army and airforce personnel heavily armed is surely not needed by the panel to take possession of the hospital from Obande Obeya if Ohande Obeye alone were running the hospital and in occupation himself. The deployment of such a force is like using a sledge hammer to kill a fly. However, this is not the stage at which the question of the ownership of the land and buildings of the hospital is to be determined. It is one of the serious questions raised by the 2nd respondent to be decided at the hearing of the substantive case. The only question for consideration by the Court in the instant appeal in the light of all the facts placed before the Court in the affidavits and counter affidavits is the question of balance of convenience. Who will stand to lose more if the status quo ante is restored and maintained till the final determination of the suit Will the Benue State Government stand to lose more if it is returned to its former position than the appellant if the appellant is not returned to its former position It is obvious that the appellant will lose more. The Benue State Government will lose nothing if it withdraws from the hospital premises till the final determination of the action. The appellant, if not restored to occupation now would have lost tremendously in goodwill, patients, finance and management skill if it ultimately succeeds in the substantive action.

The balance of convenience is therefore in favour of granting the application. I must stress that the government is entitled to pursue its debtors and recover from them all amounts legitimately due to it. The courts of law are established both for the people and the government or authority. The government should not shy away from making use and taking advantage of the processes of the courts of law. It is a misconception to think that the measured speed with which the processes of court travel is too slow for the military government. Since the government has taken the civilised stand of observing the Human Rights provision of the 1979 Constitution and the Rule of Law, it cannot allow its image to be tarnished, stained and mutilated by abandoning the Rule of Law and resorting to the rule of Force which, in the peculiar circumstances, is very barren. The rule of force wearing the kid glove of an Edict can never usher in social justice. It only wears the condemned face of the law. Let the Benue State Government return to the Rule of Law.

The appeal succeeds and is hereby allowed. The decisions of the Court of Appeal and the High Court are hereby set aside and in their stead, I make the following orders:

(1) The 1st and 2nd respondents by themselves, their servants including the 30 officers and men of the Nigerian Army and the 10 officers and men of the Nigerian Airforce or their agents are hereby restrained from preventing the plaintiff and its servants or agents from obtaining access to and occupying the premises known as Obeya Memorial Specialist Hospital pending the determination of the substantive action;

(2) The Benue State Government, the 2nd respondent, is hereby ordered to restore possession of the said premises to the plaintiff pending the determination of the substantive action; and

(3) The Benue State Government, the 2nd respondent, by itself, its servants or agents or otherwise, is hereby restrained from delivering possession of the said premises to any person other than the plaintiff or its duly authorised agent pending the determination of the substantive action.

The appellant is entitled to costs in this appeal assessed at N300.00 in this Court; N150.00 in the Court of Appeal and N50.00 in the High Court.

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SC.227/1986