LONGINUS NNADI v. DR. ADOLPHE AMADI
(2010)LCN/3960(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of July, 2010
CA/PH/66/2007
RATIO
INTERLOCUTORY INJUNCTION: WHETHER AN INTERLOCUTORY INJUNCTION CAN BE GRANTED TO PROTECT A KNOWN RIGHT IN LAW OR EQUITY
…an equitable interest is recognized in law as being worthy of protection and is thus a legal right which if threatened must be protected by the courts’ in an application for injunction, the Applicant must establish his right to the property concerned. Thus an interlocutory injunction can be granted to support a known right in law or equity. See A.G ONDO v. A.G. EKITI (2001) 10 SCNJ 117; AFROTEC TECHNICAL SERVICES LTD v. MIA & SONS (2000) 12 SCNJ 298; DYKTRADE LTD. v. OMNIA NIG LTD. (2007) 7 SCNJ 90; AIC LTD. v. NNPC (2005) 5 SCNJ 316. The remedy of an interlocutory injunction is granted to prevent continuation of a wrongful act. See BABATUNDE ADENUGA v. J. K. ODUMERU & ORS. (2001) 1 SCNJ 34. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
LOCUS IN QUO: WHETHER A VISIT TO THE LOCUS IN QUO MUST BE UNDERTAKEN ONLY ON THE APPLICATION OF ONE OF THE PARTIES OR WITH THE CONSENT OF ALL OF THEM AT THE INSTANCE OF THE COURT
A visit to the locus in quo must be undertaken only on the application of one of the parties or with the consent of all of them at the instance of the court. The request must be granted where it will assist to identify the land in dispute. See BRIGGS v. BRIGGS (1992) 3 NWLR Pt.228 Pg. 128; ODICHE v. CHIBOGWU (1994) 7-8 SCNJ 317; EMOWE v. AKAIGWE (1992) 2 SCNJ 316; ANYANWU v. MBARA (1992) 6 SCNJ 22; AJAO v. ADIGUN (1993) 3 SCNJ 1. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
LOCUS IN QUO: WHETHER THE OBSERVATIONS OF THE JUDGE AT THE LOCUS IN QUO CAN BE SAID TO BE EVIDENCE
Observations of the judge at the locus is not evidence unless such evidence has been properly received at the locus or in court through witnesses in situations in which the adverse party is given opportunity to cross-examine the witness. See ABOYEJI v. AMUSA MOMOH (1994) 4 SCNJ 302. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
CIRCUMSTANCES UNDER WHICH AN ERROR OF THE LOWER COURT WILL RESULT IN ALLOWING THE APPEAL
The Supreme Court has always held that an error of the lower court will result in allowing the appeal only where it had occasioned miscarriage of justice. See ENGINEER GOODNESS AGBI & ANOR. v. CHIEF AUDU OGBEH & ORS. (2006) 5 SCNJ 314; OSAYEMWENRE AMAYE v. OSAYENDE ERINWING LOVE (2006) 5 SCNJ 1: ENGINEER EMMANUEL OSOLU v. ENGINEER UZODINMA OSOLU (2003) 6 SCNJ 162; M. O. ODUTOLA v. CHIEF ODERTNDE (2004) 5 SCNJ 285. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
CIRCUMSTANCE UNDER WHICH THE APPELLATE COURT WILL INTERFERE THE TRIAL JUDGE’S EXERCISE OF THE DISCRETION
I can only interfere with the learned trial judge’s exercise of the discretion if I find that it was exercised injudicially and injudiciously. See CHIEF NICHOLAS BAUNA v. TELEPOWER NIG. LTD. (2006) 7 SCNJ 182. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
LONGINUS NNADI Appellant(s)
AND
DR. ADOLPHE AMADI Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Nwosu-Iheme J. (as she then was) of the Imo State High Court delivered on 28/7/2005 granting the Respondent’s application for interlocutory injunction restraining the Appellant from continuing the erection of a filing station on the land in dispute.
Dissatisfied with the ruling, the Appellant have appealed to this court. The facts that led to this appeal are as follows:
From the affidavits filed by the Respondent, his case is that sometime in 1992 Dr. Nwakanma Okoro (SAN (now late), Chairrnan and Chief Executive Officer and sole owner of NECI Land Development Corporation Ltd. used the land in dispute as a collateral to secure a friendly loan from the Respondent. The said land transaction was by a memorandum dated 19/5/92 Subsequently when the said loan was unpaid the Respondent moved to foreclose the interest of the mortgagor and as a result took out a writ against NECI Land Development Corporation Ltd. in HOW/178/98 The said suit is still pending.
It is also the case of the Respondent that in November 2003 the Respondent noticed the activities of the Appellant on the land. In December 2004 the Respondent commenced this action against the Defendant seeking compensatory and injunctive reliefs against the Appellant, then the Respondent thereafter filed the aforesaid application for interlocutory injunction.
The case of the Appellant is that he is one of the director’s of a company called Royal Lonag Ventures Nigeria Ltd. Sometime in 2003, one Anselem N. Ashiegbu who was the holder of the Right of Occupancy in and over the land in dispute transferred his interest and rights in and over the land to Royal Lonag Ventures Nigeria Ltd. Royal Lonag Ventures Nigeria Ltd. then took effective and undisturbed possession of the land and started to develop the land into a petrol station after obtaining requisite permits and approvals from statutory authorities.
It is also the case of the Appellant that as at the time the Respondent filed the action and filed the said motion for interlocutory injunction, Royal Lonag Ventures Nig. Ltd. had fenced the land in dispute, buried petrol tanks on the ground, completed the building of the office block on the land and had generally developed the petrol station on the land after investing millions of Naira on the project. The Appellant also stated that the Respondent knew about these development since 2003 and did nothing until December 2004, and that the grant of the application will cause the said company great inconvenience and that the developments on the land will be exposed to the vagaries of weather.
The Appellant filed notice and grounds of appeal which were served on the Respondent. Thereafter all records were transmitted and served on the parties. By a motion on notice dated 15/10/07 filed on 18/10/07, the Appellant applied pursuant to the rules of court for an order setting down this appeal for hearing without the Respondent’s brief of argument. The said order was granted by this court on 5/5/08. The Appellant’s brief is dated 17/5/07 filed on same day. It will be used solely in the determination of this appeal. The brief was settled by Ezeohiri Fred Njemanze Esq.
The Appellant identified three issues for determination set out below:
i. Whether on the affidavit evidence placed before the lower court, the Plaintiff/Respondent made out a case for the grant of an interlocutory injunction.
ii. Whether the lower court was right in granting the application for interlocutory injunction based on his observation at the locus in quo of which there is no evidence upon the records.
iii. Whether the lower court was right in basing his decision to grant the application for interlocutory injunction mainly on his observation at the locus in quo and not the submissions of learned counsel and affidavit evidence before the court.
From this I have crystallized only two the first issues for determination which in my view adequately show the complaints of the Appellant without being repetitive.
ISSUE ONE
Learned Appellant’s counsel submitted that a Plaintiff seeking an injunction must not only prove the existence of his legal right which he seeks to protect but must prove that he has a legal right which is being threatened. He cited OBEYA MEMORIAL HOSPITAL V. A.G. FEDERATION (1987) 3 NWLR Pt. 60 Pg. 325; MOROHUNFOLA v. KWARA TECH (1990) 4 NWLR Pt.145 Pg. 506; KELE v. NWEREBERE (1998) 3 NWLR Pt.543 Pg. 515; ADENUGA v. ODUMERU (2001) 2 NWLR Pt. 696 Pg. 184; OBIJURU v. ANOKWURU (2001) 17 NWLR Pt.743 Pg.685.
He submitted that the Respondent has no present legal interest in the land which the court should protect. The Respondent in pending suit No.HOW/174/98 is seeking an order of foreclosure and transfer of the property or an order creating and vesting in the Respondent the property. The legal estate in the land is not yet vested in the Respondent and he has nothing to protect. He submitted that the Respondent failed to disclose facts that warranted a grant of the relief of a permanent injunction against the Appellant. He cited OBONNAYA v. ADAPALM NIG. LTD. (1993) 5 NWLR Pt.292 Pg. 141.
Counsel argued that the Respondent did not ask for declaration of titled but for damages in trespass and that even if the Appellant or Royal Lonag Ventures Nig. Ltd. trespassed into the land, the payment of damages will be adequate compensation and not an interlocutory injunction. He argued that the Respondent was aware of the construction by the Appellant on the land before filing the suit. Counsel further submitted that the petrol station was near completion and that consequently, the act of building a petrol station having been carried out as shown in the counter affidavit of the Respondent and the photographs at page 76 of the record, the learned trial judge ought not to have granted the application. He cited COMMISSIONER OF WORKS BENUE STATE v. DEVCONI LTD supra; CBN v. IND. BANK LTD. (1997) 9 NWLR Pt.522 Pg. 712; GOVERNOR OF IMO STATE v. ANOSIKE (1987) 3 NWLR Pt.66 Pg. 663; EZEBILO v. CHINWUBA (1997) 7 NWLR Pt.511 Pg. 108. He also cited ALTINE v. AFRI BANK PLC (2000) 15 NWLR Pt. 689 Pg. 181; JIAGBOGU v. JIAGBOGU (1972) ESSLR 512.
Counsel argued that the Respondent did not show any inconvenience he would suffer if the application was not granted. He cited ORJI v. ZARIA IND. LTD. (1992) 1 NWLR Pt. 216 Pg. 124; UNION BEVERAGES LTD. v. PEPSICOLA INT. LTD. (1994) 3 NWLR Pt. 330, Pg.1; COMMISSIONER OF WORKS BENUE STATE v. DEYCOM LTD. supra.
Counsel argued that the Appellant did not controvert the facts that Royal Lonag Ventures Nig. Ltd. was the developer of the petrol station and had invested millions of Naira in the project. He submitted that in the circumstance there was no evidential basis to grant the application since the third party is not a party to the action. The learned trial judge was wrong when he granted the application for interlocutory injunction.
Counsel argued that it is a general principle of law that an interlocutory injunction or any other type of injunction should not be granted against a person who is not a party to litigation in court. See FAWEHINM v. NBA (No. 1) (1989) 2 NWLR Pt. 105 Pg. 494; UNION BEVERAGES LTD. v. PSPSICOLA IND. LTD. (supra); ONYEKWULUNNE v. NDULUE (1997) NWLR Pt. 512 Pg. 250.
On this issue of whether the learned trial judge had good reason in law to grant the interlocutory application pending the outcome of the substantive suit which is an action by the Respondent against the Appellant for trespass, we need to look at the affidavit in support of the application. The averments in paragraph 4 thereof are set out below:
4(a) That the Applicant is the mortgagee of the property subject matter of this application.
(b) That the said property is covered by a Statutory Certificate of Occupancy dated 24 September 1984 and registered as No. 82 at Page 82 in Vol. 122 of the Lands Registry Owerri issued to NECI LAND DEVELOPMENT CORPORATION LTD. (a) That sometime in May 1992, Dr. Nwakanma Okoro, SAN (now late) Chairman and Chief Executive Officer and sole owner of NECI LAND DEVELOPMENT CORPORATION LTD. used the property as a collateral to secure a friendly loan of N500,000.00 from the Applicant.
(b) That the loan transaction between the Applicant and the late Chief Executive Officer of NECI LAND DEVELOPMENT CORPORATION LTD. was through a memorandum dated 19 May 1992.
(c) That throughout the lifetime of the late Chief Executive Officer and indeed up till now no part of the said loan has been repaid.
(d) That the Applicant having the Statutory Certificate of Occupancy and being in possession of the said property moved to foreclose the interest of the Mortgagor over the property.
(e) That in consequence the Applicant took out a writ against the said company in suit No. HOW/174/98.
(f) That the said suit is now pending at the High Court of Owerri.
(g) That it is, however, most shocking that the Respondent sometime in November 2003 trespassed upon the property, preparatory to building thereon.
(h) That in swift reaction to this trespass by the Respondent, the Applicant instructed his solicitors to petition the Commissioner of Police, Imo State through a letter dated 17 November 2003.
(i) That the Police intervention in consequence of the Petition aforesaid checkmated the activities of the Respondent for a while and brought respite for 12 months.
(j) That the Respondent being adamant,, went into the property again sometime between 19th, 20th and 21st November 2004 with workers and thugs numbering about 30 and buried four huge tanks thereon preparatory to building a fuel station.
(k) That the Applicant cause his Solicitors to write a petition to the Commissioner of Police to restrain the threatening breach of the peace by the Respondent.
(l) That the Respondent has been boasting that no court of law can restrain him from completing the fuel station.
(m) That the Respondent is very desperate in his bid to expropriate the property already a subject of litigation in another court.
(n) That it is in this desperate bid that he continues construction work on the property day and night with his thugs proving “security” for the workers.
The counter-affidavit of the Respondent in particular states as follows:
1. That I am the Defendant in this suit.
2. That paragraphs 4 a-p, 6, 7, 8 and 9 of the affidavit in support of the motion for interlocutory injunction are false.
3. That I do not know the property covered by Statutory Certificate of Occupancy registered as No. 82 at page 82 in Vol. 122 of the Lands Registry in the office at Owerri.
4. That by Statutory Certificate of Occupancy dated 25/9/83 and registered as No. 41 at page 41 in Vol. 110 of the Lands Registry in the officer at Owerri Anselem N. Ashiegbu was granted right of occupancy by the Governor of Imo State in and over land at Irete where Royal Lonag Ventures Nig. Ltd. has now built a filling or petrol station. Copy of the said Certificate is annexed and marked Exhibit 64.”.
5. That Anselem N. Ashiegbu in 2003 transferred his interest and rights in and over the aforesaid property of Royal Lonag Ventures Nig. Ltd. and by an irrevocable power of attorney dated 6/5/03 and registered as No. 22 at page 22 in Vol. 880 of the Lands Registry in the office at Owerri Anselem N. Ashiegbu appointed Royal Lonag Ventures Nig. Ltd. his true and lawful attorney in respect of and in relation to the said land granted to him by the Governor of Imo State (hereinafter called the land). Copy of the power of attorney is annexed and marked Exhibit “8”.
6. That I am a Director of Royal Lonag Ventures Nig. Ltd.
7. That Royal Lonag Ventures Nig. Ltd. has developed the said land into a petrol station.
8. That the said land has been fenced, office block developed, tanks buried on the land etc.
9. That Royal Lonag Ventures Nig. Ltd. started the development of a petrol station on the land many months and has invested millions of Naira in the project.
10. That before the said company started to build the petrol station on the land it applied for and obtained requisite approvals from the Fire Service Department of Imo State Ministry of Works and Transport, Nigeria Police and the Owerri West Local Government. Copies of the letters of approvals from the said Fire Service Department, and Nigeria Police are annexed and marked Exhibits “C” and “D” respectively.
11. That I am informed by my Solicitor K. C. O. Njemanze Esq and I verily believe him –
(a) That the Plaintiff has no locus standi to bring this action.
(b) That the land in dispute is not ascertainable.
(c) That this suit is an abuse of process of the Honourable Court.
(d) That the acts the Plaintiff is praying this Honourable Court to restrain me from doing have been completed.
(e) That Plaintiff will be compensated by damages if he succeeds in this suit.
12. That I did not trespass into any land belonging to the Plaintiff.
13. That balance of convenience do not favour the grant of this application.”
It is obvious from the above that the Respondent had at least pending the outcome of suit No.HOW/174/98 on equitable interest in the land in dispute. contrary to the submission of learned Appellant’s counsel, an equitable interest is recognized in law as being worthy of protection and is thus a legal right which if threatened must be protected by the courts’ in an application for injunction, the Applicant must establish his right to the property concerned. Thus an interlocutory injunction can be granted to support a known right in law or equity. See A.G ONDO v. A.G. EKITI (2001) 10 SCNJ 117; AFROTEC TECHNICAL SERVICES LTD v. MIA & SONS (2000) 12 SCNJ 298; DYKTRADE LTD. v. OMNIA NIG LTD. (2007) 7 SCNJ 90; AIC LTD. v. NNPC (2005) 5 SCNJ 316.
The remedy of an interlocutory injunction is granted to prevent continuation of a wrongful act. See BABATUNDE ADENUGA v. J. K. ODUMERU & ORS. (2001) 1 SCNJ 34.
It is obvious that the specific allegations in paragraphs 4 (j)-(m) of the Respondent’s affidavit were not denied in the counter-affidavit except the general traverse made in paragraph 2 thereof. There was no specific denial of the fact that the Respondent had been petitioning the Commissioner of Police to prevent further development on the land immediately he became aware of the trespass by the Appellant. Generally, the law is that a completed act will not be restrained by an injunction. See MUHAMMADLI BUHARI v. CHIEF OBASANJO & 266 ORS No. 1 (2003) 11 SCNJ 1.
I cannot agree with the Appellant that the evidence in this case proves that the Appellant have completed development on the land. Rather, the evidence is that they made a lot of improvement on the land after the allegation that they were trespassing was brought to their notice and they did not cease and desist from further development, so an injunction is in my view an appropriate remedy to prevent the continuous trespass on the land.
The first issue is resolved in favour of the Respondent. The second issue is whether the trial court was right in granting the application for interlocutory injunction based on his observation at the locus in quo, whereas such evidence is not on the records. Learned Appellant’s counsel submitted that the Supreme Court had in many cases restated the procedure to be adopted by a court in visiting the locus in quo. In OGUNDELE v. FASU (1999) 12 NWLR Pt. 632 Pg. 662 the Supreme court held that S.77(d) (ii) of the Evidence Act lays down two broad procedures for a visit by a trial court to the locus in quo. Such trial court may either adjourn to the locus for further hearing of the case as prescribed by law until it adjourns back to the court room or it may simply move to the locus and make an inspection of the subject matter and return to the court for evidence, if any, of what transpired at the inspection to be taken. In all cases in which a visit to the locus in quo is made by the court, the court should be careful to avoid placing itself in the position of a witness and arriving at conclusion based entirely upon his personal observation at such locus and of which there is no evidence upon the record.
It is now settled law that the trial judge’s own observation at an inspection of the locus in quo are no evidence and it is erroneous for the trial judge to treat them as established facts and proceed to make findings on them, unless evidence thereon had been received at the scene or in court through a witness and the parties have been given an opportunity to hear the additional evidence and cross-examine on it. See ABOYEJI v. MOMOH (1994) 4 NWLR Pt.341 Pg.646.
Counsel argued that the learned trial judge erred in failing to consider all the issues properly raised by the parties and heard by the court on the rules and principles for the grant of an order of interlocutory injunction before granting the application. He argued that this failure has caused miscarriage of justice. He cited ISYAKU v. MASTER (2003) 5 NWLR Pt. 814 Pg. 443; OLADELE v. NIGERIAN ARMY (2004) 6 NWLR Pt.868 Pg. 166.
I am in complete agreement with the learned Appellant’s counsel in relation to his statement of the law particularly as regards the procedure to be adopted during a visit to the locus in quo by a trial judge. This is the procedure for visit to the locus in quo as distilled from case law. A visit to the locus in quo must be undertaken only on the application of one of the parties or with the consent of all of them at the instance of the court. The request must be granted where it will assist to identify the land in dispute. See BRIGGS v. BRIGGS (1992) 3 NWLR Pt.228 Pg. 128; ODICHE v. CHIBOGWU (1994) 7-8 SCNJ 317; EMOWE v. AKAIGWE (1992) 2 SCNJ 316; ANYANWU v. MBARA (1992) 6 SCNJ 22; AJAO v. ADIGUN (1993) 3 SCNJ 1;
Observations of the judge at the locus is not evidence unless such evidence has been properly received at the locus or in court through witnesses in situations in which the adverse party is given opportunity to cross-examine the witness. See ABOYEJI v. AMUSA MOMOH (1994) 4 SCNJ 302.I have diligently searched through the records and there is no doubt in my mind that the learned trial judge did not fully consider the arguments of the learned counsel on both sides before giving the ruling to grant the interlocutory injunction. This is the substance of the ruling on pages 96-97 of the record:
“After listening to Livy Uzoukwu SAN and K. C. O. Njemanze Esq for the Respondent, it became necessary to visit the locus, and on the 9/6/2005 I visited the locus. Having visited the locus, my view is that there is no need or justice in dwelling on the submissions of both counsel. Rather my Ruling will be base mainly on my observation at the locus. At the locus, I observed that construction had reached about 60% completion. It was obvious that most of the construction took place while this case was pending because all the materials were fresh.
This is against the doctrine of lis pendence. Construction work was also expedited while this case was pending.
Since construction had reached about 60% completion, I cannot order parties to revert to status quo. But rather than further construction be stopped pending the determination of the substantive suit.
This in an appropriate situation would have called for the restoration of the parties to status quo, but considering the extent of construction, and in the interest of justice, it is appropriate to restrain any further construction on the land in dispute.
Furthermore, and in order not to delay the justice of the matter, I do hereby accelerate the hearing of the substantive suit, and add that it must not be adjourned beyond 14 days after each hearing.”
There is no doubt that the learned trial judge was in error in the procedure employed in arriving at its decision. The question is whether in fact a miscarriage of justice occurred as a result of that wrong procedure adopted by the learned trial judge. The Supreme Court has always held that an error of the lower court will result in allowing the appeal only where it had occasioned miscarriage of justice. See ENGINEER GOODNESS AGBI & ANOR. v. CHIEF AUDU OGBEH & ORS. (2006) 5 SCNJ 314; OSAYEMWENRE AMAYE v. OSAYENDE ERINWING LOVE (2006) 5 SCNJ 1: ENGINEER EMMANUEL OSOLU v. ENGINEER UZODINMA OSOLU (2003) 6 SCNJ 162; M. O. ODUTOLA v. CHIEF ODERINDE (2004) 5 SCNJ 285.
I have already decided in respect of issue one and I am of the humble but firm view that indeed the Respondent’s affidavit at the lower court showed convincingly that he had an equitable right in the property which the court is obliged to protect. The grant of an order of interlocutory injunction is purely discretionary even though it must be judicially and judiciously exercised. I can only interfere with the learned trial judge’s exercise of the discretion if I find that it was exercised injudicially and injudiciously. See CHIEF NICHOLAS BAUNA v. TELEPOWER NIG. LTD. (2006) 7 SCNJ 182.
The learned Appellant’s counsel has not complained of an in judicial exercise but of an injudicious exercise of the discretion. There can only be an injudicious exercise of discretion where it has led to a miscarriage of justice. I am of the view that even though the learned trial judge was in error in the procedure adopted to arrive at the exercise of discretion, given the finding in issue one by me that the Respondent’s equitable right in the property ought to attract the protection of the court so that continuing trespass as alleged should be stopped pending the determination of the substantive suit, no miscarriage of justice has occurred. The interlocutory injunction was granted and the trial court gave an order of accelerated hearing to ensure that the case would be speedily disposed of. The law lords have held over the years that the decision of the lower court will not be set aside because the lower court gave a wrong reason for its decision if the decision is otherwise proper. See AIC LTD. v. NNPC (2005) 5 SCNJ 316.
It would have been a different thing if the circumstances of the case did not at all warrant an exercise of the discretion of the lower court. I resolved the second issue in favour of the Respondent.
I dismiss this appeal and give no order as to costs. Appeal Dismissed.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I agree.
MOJEED A. OWOADE. J.C.A.: I agree.
Appearances
E. F. Njemanze with him Emeka IbezeakorFor Appellant
AND
For Respondent
