The Military Administrator, Federal Housing Authority & Anor V. C. O. Aro (1991)
LawGlobal-Hub Lead Judgment Report
M. A. BELGORE, J.S.C.
The appellant, Federal Housing Authority let in the respondent into one of the houses erected by them at FESTAC Town. Lagos by virtue of Mortgage Lease Agreement entered into by the two. The agreement was entered into in 1977 but the respondent was let into possession of the flat physically in February, 1982.
He was in possession for forty-seven months before dispute arose between them. It appeared the respondent was several months in arrears of his mortgage payment. However, after notice was served on the respondent that the appellant would take possession, the respondent rushed and made part payment of the arrears allegedly due. He was left in possession. Sooner, though another arrears built up and he was finally notified that the appellants would take possession. The respondent rushed to Court asking for the following:
(i) that the respondent was still the mortgagor/lessee of the said premises;
(ii) that the appellants could not eject the respondent except by order of court;
(iii) that the notice served on the respondent by the appellants was null and void, and
(iv) that by acceptance of arrears of rent, the appellants had waived their right to eject the respondent from the said premises.
(v) He also claimed an injunction restraining the appellants, their agent and/or servants from entering and ejecting the respondent from the said premises; and
(vi) N100.000.00 damages for unlawful ejectment.
Apparently knowing that the appellants were bent upon evicting him and taking possession of the house, the respondent rushed again to court to ask for interlocutory injunction so that he be left in peace in the house, for according to him he was not in arrears of payment. The motion for interlocutory injunction was supported by detailed affidavit whereof the respondent denied owing any arrears and deposing that if the appellant succeeded in ejecting him, he would suffer irreparable damage as the house could be sold to somebody else which would bring serious complications. The counter-affidavit by Johnson Agbabune an Executive in Legal Department of the appellant deposed that all allegations of not being in arrears of mortgage repayment were untrue and that the respondent had arrears of N2,136.87 to pay and for that reason he was ejected from the house on 17th November, 1985, an allegation in further affidavit by the respondent.
Learned trial Judge, looking at the affidavits, gave an interim stay that the respondent be left in possession.
It is to be pointed out that the appellants’ counter-affidavit alleged the respondent having been ejected on 17th November, 1985, the house was re-allocated to another person. The respondent countered in further affidavit that he made further payments, received by the appellants on 18th and 21st November 1985. The court granted the interim injunction asked for. An interlocutory appeal was lodged against this decision to Court of Appeal which on the 20th January, 1987 dismissed the appeal. Thus the appeal to this court.
The grounds of appeal read as follows:
(1) “That Court of Appeal misdirected itself in law in upholding the order of mandatory injunction despite the fact that a new innocent tenant has been let in possession under the doctrine of caveat emptor.
Particulars of Misdirection
(i) Caveat emptor is inapplicable to the case of landlord and tenant as title was not in issue.
(ii) The new tenant had paid six (6) months rent in advance in December, 1985 before the institution of the action by the plaintiff/respondent.
(2) That Court of Appeal misdirected itself in law in resolving suo moto the conflicting averments in the Affidavits and counter-affidavit of the parties on the issue of the ejectment in November, 1985 of the plaintiff/respondent without oral evidence having been taken.
Particulars of Misdirection
The appellant had deposed in their Counter-Affidavit that the respondent was ejected in November, 1985 which averment the respondent denied in his Reply Affidavit to the counter-Affidavit.
(3) The Court of Appeal misdirected itself in law in holding that the acceptance of rent from the respondent by the appellant constituted waiver of the ejectment in November, 1985
Particulars of Misdirection
The rent paid by the respondent in November, 1985 was in settlement of accrued arrears of rent and not payment of advance rent.
(4) The Court of Appeal misdirected itself in law in upholding the order of mandatory injunction which will impinge on an innocent third party’s interests without the third party being given an opportunity of fair hearing contrary to Section 33(1) of the 1979 Constitution.
Particulars of Misdirection
At all material times both parties and the Court of Appeal knew that a third party had already been put in possession.”
The issues or questions for determination formulated by the appellants state:
“The basic question arising for determination in this case is whether the learned Justices of the Court of Appeal exercised their discretion judicially and judiciously in affirming the order of mandatory injunction compelling the appellants to reinstate the respondent to the said premises, having regard to the peculiar circumstance of this case.
As corollary to this main question, the following questions arise for consideration in the appeal, namely:-
(a) Whether there was evidence to suggest that the third party did not act bona fide and whether the doctrine of caveat emptor could be applied to him.
(b) Whether it was proper for the Court to have made an order reinstating the respondent to the said premises when there was unchallenged evidence that a third-party had entered in possession of same,
(c) Whether the undisputed facts in the parties’ affidavits were sufficient to decide the issues raised in the application so as to obviate the need for oral evidence.”
The argument on the appeal emphasised mainly on resolving the conflict in affidavits. Surely when two parties in a dispute render their facts into affidavits and there are conflicts in the affidavits – such conflict could best be resolved by having oral evidence from the parties. Once this situation of conflict in affidavits arises, and the conflict is not on trivial matter in dispute but on the substance of the dispute; whether the parties so request or not, it is incumbent on the Court faced with such a situation to advise the parties to give oral evidence to resolve the conflict. Falobi v. Falobi (1976) NMLR 169, 171, 178; Eboh & Ors. v. Oki & Ors. (1974) 1 S.C.179, 178, 190; Olu-Ibukun & Anor. v. Olu-Ibukun (1974) 2 S.C.41; 48; Uku & Ors. v. Okumagba (1974) 3 S.C.35, 64, 65; Akinsete v. Akindutire (1966) 1 All NLR 147, 148.
In this matter, the substantive suit is on whether the respondent was in arrears or not. He claimed he was not in arrears, at least he disputed the amount of arrears claimed to be outstanding. Secondly he challenged the validity of the notice on him that the appellant intended to re-possess and that their earlier acceptance of part payment amounted to waiver of the right to re-possess. Thirdly it was asserted that the third party was put in possession when the appellant and the third party knew there was a fundamental dispute as to validity of appellants claim of arrears and right to eject. Thus, it is clear, the trial Judge was not dealing with the substantive issue, but the interim prayer to be left in status quo pending the determination of the substantive suit. The question, no doubt, in the mind of the court in such a circumstance is what would happen to a person in the situation the respondent found himself. If he was evicted and another person let into possession and finally the matter, substantive matter, ended in his favour, he would face gargatuan hardship of relocating first and trying to regain possession.
What was in issue before the trial Court was not at that stage the substantive issue, but equitable convenience of the parties, the conflicts in the affidavit notwithstanding.
The appellants were served with the writ of summons, nonetheless they went ahead to attempt to evict the respondent. The third party, if he ever took possession, certainly did so at the great risk for all the notices will be there for him if he cared as honest purchaser, to investigate or search. To no other legal obligation is caveat emptor more appropriate than to the person interested in land or landed property.
It is therefore appropriate here to state that interlocutory injunction is to mitigate the suffering of the party applying for it so that he will not be in unnecessary hardship during the pendency of the substantive suit. It is always good to prevent injustice that most invariably could not be cured properly at the end of the substantive case if it was not granted. The evidence needed by the trial court was clear even on the conflict. The respondent claiming no valid notice was served on him, that he was not in arrears, that he was not ejected. The appellant claiming he was in arrears, that he was served with notice and that he was ejected. It was not however denied that after the alleged notice the appellant received from the respondent two payments in respect of the same arrears. The trial court was perfectly in order to have granted the injunction. The Court of Appeal was therefore right to have so held. The case of Falobi v. Falobi (supra) has no application in this; the conflict is as to the substantive suit, not as to the prayer for discretion of trial court to grant interlocutory injunction.
For the foregoing reasons, I find no merit in this appeal and I accordingly dismiss it on all the grounds. I order N500.00 costs to the respondent.A. O. OBASEKI, J.S.C.: I have had the advantage of reading in advance the draft of the judgment just delivered by my learned brother, Belgore, J.S.C. and I find that his opinions on all the issues raised in this appeal accord with mine. Accordingly, I agree with him that the appeal be dismissed. I hereby adopt his opinions as mine.
I find the appeal devoid of merit and I hereby dismiss it and affirm the decision of the Court of Appeal.
The respondent is entitled to costs in this appeal fixed at N500.00
A. G. KARIBI-WHYTE, J.S.C.: I have read the judgment of my learned brother, S.M.A. Belgore, J.S.C. in this appeal. I agree that this appeal should be dismissed. I also will and hereby dismiss it. The central theme of the questions for determination in the appeal is whether the learned Justices of the Court below exercised their discretion in affirming the order of mandatory injunction compelling appellants to reinstate the respondent having regard to the peculiar circumstances of the case.
Learned Counsel to the appellants anchored his submission on the necessity for the court to hear oral evidence in order to resolve conflicts in the affidavits of the parties. It was submitted that unless the conflicts were resolved the point to exercise discretion has not been reached. Learned Counsel to the appellant relied on Falobi v. Falobi (1976) NMLR 169; Eboh & Ors. v. Oki & Ors. (1974) 1 S.C.179: Olu-Ibukun v. Olu-Ibukun (1974) 2 S.C. 41: Akinsete v. Akindutire (1966) 1 All NLR. 117
The conflicts in the affidavits of the parties concerned the question whether respondent was in arrears in his Mortgage payments. Respondent also challenged the validity of the Notice served on him by appellants to repossess the property subject- matter of dispute.
Appellant’s case is that a third party was put in possession when appellant and the third party knew there was a fundamental dispute as to validity of appellants claim of arrears and right to eject It seems to me clear that the trial Judge was not dealing with the substantive issue, but the interim injunction to be left in status quo pending the determination of the substantive suit.
It is only necessary for the respondent to show that there is sufficient grounds why he should be allowed to remain in the house pending the determination of the substantive action.
The appellants were served with the writ of summons, before they went ahead to attempt to evict the respondent. The object of the interlocutory injunction is to mitigate the suffering of the party applying for it to avoid inevitable hardship that will arise if the application is not granted.
The trial court was perfectly in order to have granted the injunction. The Court of Appeal was therefore right to have so held.
I find no merit in this appeal, which I hereby dismiss. Appellant shall pay costs assessed at N500.00 to the respondents.
SC.66/1987
