Webber George Egbe Vs Peter C.a. Onogun (1972)
LawGlobal-Hub Lead Judgment Report
S. SOWEMIMO, Ag. J.S.C.
This is an appeal against an order dismissing an application for an interim injunction. In Suit W/54/70 instituted by the plaintiff against the defendant in the Warri High Court, of the Mid-Western State, the plaintiff claims special and general damages for trespass to land, interim injunction to restrain the defendant from continuing further acts of trespass and perpetual injunction. The portion of land which is the subject matter of the claim is described on the writ as “the piece and parcel of land in Warri Cemetery, Cemetery Road, Warri.
” The act of trespass was that “on 18th April, 1970, the defendant and his agent broke and entered the piece of land. . . to destroy the tombstone and the grave where plaintiff’s late father, the Hon. Asifo Egbe was buried in 1945”.
Along with the summons the plaintiff filed a notice of motion on 5th July, 1970 in the following terms:
“For an order of this Honourable Court
- Granting the plaintiff/applicant special leave to move this Notice of Motion on Thursday, 7th May, 1970.
- Granting an interim injunction to prevent the defendant/ respondent, his servants and agents from continuing with their present act of trespass on the grave and the piece and parcel of land in which the late Hon. Asifo Egbe was buried and for such further order or orders as this Honourable Court may deem fit and proper to make in the circumstances.”
In support of the motion the plaintiff filed an affidavit, a further affidavit, a further and better affidavit, a still further and better affidavit whilst the defendant, on his own side, filed a counter-affidavit and a further counter-affidavit. All these took place between 5th May, 1970 and 22nd July, 1970. On 29th July, 1970 the learned judge (Ovie-Whisky J.) heard arguments on the motion and dismissed the application. It is against the refusal to grant the application that the plaintiff had appealed to this Court.
In a rather lengthy ruling the learned judge purported to determine the plaintiff’s right to the relief claimed in the writ of summons, and having concluded that there was no such right known to law refused the grant for an interim injunction.
This appeal turns on the issue whether the learned judge directed himself properly and correctly on the principles governing the exercise by the court of its discretionary powers when dealing with an application for interim injunction. These principles are set out in paragraphs 765 and 766 at pages 365-366 of Vol. 21 of Halsbury’s Laws of England 3rd Edition. The relevant portions read:
Para. 765:
“Where the plaintiff is asserting a right, he should show a strong prima facie case, at least, in support of the right which he asserts; but the mere fact that there is a doubt as to the existence of such a right is not sufficient to prevent the Court from granting an interlocutory injunction, although it is a matter for serious attention. . ..”
Para. 766:
“Where any doubt exists as to the plaintiff’s right, or if his right is not disputed, but its violation is denied, the Court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the defendant, on the one hand, would suffer if the injunction was granted and he should ultimately turn out to be right, and that which the plaintiff, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right. The burden of proof that the inconvenience which the plaintiff will suffer by the refusal of the injunction is greater than that which the defendant will suffer, if it is granted, lies on the plaintiff.”
The above statements were cited with approval by Ungoed-Thomas J. in the case of Donmar Productions Ltd. v. Bart and Others [1967] 2 All E.R. 338 at page 339. The learned judge in his judgment stated inter alia, after quoting the passages referred to above, as follows:
“It is quite clear to my mind from these two passages, that the first passage deals with the need to assert the right which forms the basis on which the claim for relief is asked. The second passage deals with the violation of that right and the considerations that come into deciding whether an injunction should be granted when a violation, as contrasted with the existence of the right, is what is in dispute So in an application for the 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 trial. ”
In Kufeji v. Kogbe [1961] All N.L.R. page 113, which deals with the practice and procedure governing applications for interim injunctions, Coker J. (as he then was) stated at page 114:
“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 do on the merits, it being sufficient that he should establish that there is a substantial issue to be tried at the hearing.”
In the ruling of the learned judge (Ovie-Whisky J.) he did not advert to the difference between an interim injunction and a perpetual injunction, and that different considerations apply in deciding an application in each case. He took the attitude that it was open to him, in considering the application before him, to determine finally as between parties the legal right the violation of which is the subject matter of the claim in the summons. In the result, therefore, the trial judge proceeded to try the substantial issue that may arise between the parties without having had the benefit of the pleadings and the evidence to be adduced by either party. It is indeed erroneous to substitute affidavits as being sufficient for these requirements. Having proceeded therefore in this way, the learned judge gave a ruling which had the effect of determining finally the substantial issue raised in the claim as contained in the writ. In our view the learned judge was clearly in error and had failed completely to apply the correct principles earlier referred to which govern the consideration of an application for interim injunction.
This would have been enough to dispose of this matter in the light of the principles and authorities cited above but for the fact that counsel for the respondent before us sought to support the ruling on the basis that it was grounded in law and should not be disturbed. In our view counsel fell into the same error as the learned judge in holding that he must first decide whether the legal right of the plaintiff for a claim for trespass had been established, and it was after such a determination before any consideration could be given to an application for interim injunction. The learned judge postulated in his ruling as to what he had to consider in deciding whether to grant or refuse an application for an interim injunction. He said as follows:
“For the plaintiff/applicant to succeed in his application for an order of interim injunction to restrain the defendant/respondent, his agents and/or servants from further working or trespassing on the cemetery or the part of the cemetery in which the corpse of his late father was buried, he must show that the cemetery or at least that portion of it where his late father’s grave is situated is his property or that he is in possession or in occupation of it, and therefore the defendant’s trespass on the land is trespass on the land in his possession and occupation.”
This portion of the ruling definitely shows that the learned judge was aware that there is a substantial issue to be tried at the hearing. Once he had so impliedly held then he ought to have granted the application. That is the law. But the learned judge did not stop there. He proceeded to refer to sections 9(a) and 10 of the Burials (Law Cap. 155) of the Western Regional Laws and the regulations made there under, which Law and regulations are applicable in the Mid-Western State. Without having the benefit of pleadings and oral evidence, (and eventually decide on facts that might be established) he then proceeded to determine the substantial triable issue using the contents of the affidavits and counter-affidavits, both as pleadings and as oral evidence.
He quoted sections 9(a) and 10 of the Burials Law (Cap. 155 W.N.L.) and regulations 2, 4, 5 and 6 made thereunder and concluded that no possessory right is conferred on any person who purchases a grave space or vault, under that Law. In determining whether a provision or provisions of a law is or are applicable to a given case, it is of primary importance to ascertain the legal concepts of such law. After this had been done then on the facts as found in the particular case, a decision can then be given on the merits. 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 findings on the merits. The learned judge, however, thought it was vital to determine the nature of the legal right in the application before him and cited as authority the case of Hoskins v. Paignton UD.C. [1928] All E.R. 57. He quoted a portion of the judgment which sets out the nature of the right, which is vested in someone who purchases a grave space or erects a vault. But the portion was quoted out of con. The portion of that judgment which preceeds that quoted and in the same paragraph reads:
“The plaintiff’s rights, such as they are, depend on the statutory powers given to the cemetery authority, the urban district council, and those powers are that, under the Public Health (Interments) Act, 1879, there are added to the powers given to urban district councils the power to provide and maintain cemeteries, and in that Act the Cemeteries Clauses Act, 1847, is incorporated. By section 40 of the Cemeteries Clauses Act, 1847:
‘The company may set apart such parts of the cemetery as they think fit for the purpose of granting exclusive rights of burial therein, and they may sell, either in perpetuity or for a limited time, and subject to such conditions as they think fit, the exclusive right of burial in any parts of the cemetery so set apart, or the right of one or more burials therein, and they may sell the right of placing any monument or gravestone in the cemetery, or any tablet or monumental inscription on the walls of any chapel or other building within the cemetery.’
In the preceding Act, which did not apply to public authorities, the Burial Act, 1852, the powers have been rather more extensively worded, for they include the right of constructing any vault or place of burial, with the exclusive right of burial therein in perpetuity, or for a limited period.
Those words are omitted in the Cemeteries Clauses Act, 1847, which is incorporated in the Act under which the defendant cemetery authority acted. The right of the plaintiff is derived from a grant made under the authority of that statute, an exclusive right of burial in certain grave spaces, together with a right, on payment, to construct a vault.”
It is clear from the above that that decision is based on two English statutes. There is nothing to show that the provisions of the English statutes relied upon in the case cited are in pari materia with the Burial Law (Cap. 155). The English statutes referred to are not applicable in the Mid-Western State under any of the provisions of any law in Nigeria. The judgment in Hoskins-Abrahall is one based on the merits and it was in respect of a claim for perpetual injunction. Whatever view one takes of the case cited, it is inapplicable to the application before the learned judge.
For the above reasons the appeal succeeds. The order of Ovie-Whisky J. dismissing the application for an interim injunction is hereby set aside. In substitution thereof it is ordered that the application for interim injunction as contained in the notice of motion dated 5th May, 1970 is hereby granted. It is further ordered that the substantive case be listed before another judge for hearing.
The plaintiff/appellant is awarded 45 guineas costs against the defendant/respondent.
Other Citation: (1972) LCN/1567(SC)
