DR. TUNJI BRAITHWAITE v. STANDARD CHARTERED BANK NIGERIA LIMITED (2011)

DR. TUNJI BRAITHWAITE v. STANDARD CHARTERED BANK NIGERIA LIMITED

(2011)LCN/4731(CA)

In The Court of Appeal of Nigeria

On Friday, the 15th day of July, 2011

CA/L/427/2011 (R)

RATIO

INTERLOCUTORY INJUNCTION: MEANING AND PURPOSE OF AN INTERLOCUTORY INJUNCTION;

An interlocutory injunction is an injunction that is directed to ensure that a particular act or acts do not take place or continue to take place pending the final determination by the court of the rights of the parties, Put differently, this class of injunctive relief is to regulate the position of the parties pending the trial and determination of the issue between them whilst avoiding a decision on such issues which could only be resolved at the trial. The purpose therefore is to protect a Plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the case were resolved in his favour at the trial. Notwithstanding the right of the Plaintiff to be so protected, it has to be weighed against the corresponding need of the Defendant to be also protected against injury resulting from him having been prevented from exercising his own legal right if the uncertainty were resolved in his favour at the trial. See Obeya Memorial Specialist Hospital & Anor. v. Attorney General of the Federation & Anor. (1987) 2 NSCC 961; Ojukwu v. Government of Lagos State (1986) 3 N.W.L.R. (pt. 26) 39. PER JOHN INYANG OKORO, J.C.A.

INTERLOCUTORY INJUNCTION: PRINCIPLES GUIDING THE GRANT OR REFUSAL OF AN APPLICATION FOR INTERLOCUTORY INJUNCTION

INTERLOCUTORY INJUNCTION: QUESTIONS THAT SHOULD BE ANSWERED WHEN CONSIDERING AN APPLICATION FOR INTERLOCUTORY INJUNCTION

Put in a very short and simple manner, the following questions should be answered in considering an application for interlocutory injunction. That is to say:- 1. Is there a serious issue to be tried? 2. Are damages an adequate remedy? 3. Where does the balance of convenience lie? 4. Are there any special factors to be considered? See Gbadamosi v. Alete (1998) 12 N.W.L.R. (pt.578) 402; Missini v. Balogun (1968) 1 All NLR 318; Akinpelu v. Adegbore (2008) 10 N.W.L.R. (pt.1096) 531; Globe Fishing Ind. Ltd. v. Coker (1990) 7 N.W.L.R. (pt.162) 265; 7-Up Bottling Co. Ltd. v. Abiola & Sons Nig. Ltd. (1995) 3 N.W.L.R. (pt.383) 257. PER JOHN INYANG OKORO, J.C.A.

INTERLOCUTORY INJUNCTION: PURPOSE OF AN INTERLOCUTORY INJUNCTION

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

Between

DR. TUNJI BRAITHWAITE Appellant(s)

AND

STANDARD CHARTERED BANK NIGERIA LIMITED Respondent(s)

JOHN INYANG OKORO, J.C.A. (Delivering the Lead Ruling): In this application, the Appellant/Applicant is praying this court for the following relief:
“AN ORDER OF INTERLOCUTORY INJUNCTION restraining the Respondent quia timet whether by itself, its agents, proxies or howsoever from commencing and/or continuing to carry on civil, engineering and building works in respect of the building project proposed by the Respondent at No. 142, Ahmadu Bello Way, Victoria Island, Lagos, pending the Hearing and Determination of the Appellant/Applicant’s appeal to this Honourable Court dated 27th April, 2010.
AND FOR SUCH FURTHER and/or other order(s) as the Honourable court may deem fit to make in the circumstance”.
This application dated and filed the 11th day of May, 2011 has two affidavits in support. The first is a 32 paragraph affidavit with five exhibits annexed and marked DO/I – DO/5. The 2nd one is a further affidavit of 6 paragraphs deposed to by one Dapo Omolodun, a legal practitioner in the law firm of Tunji Braithwaite & Co., the law firm representing the Applicant. Annexed to the said further affidavit is one Exhibit, marked DO/6.
In response, the Respondent filed two counter affidavits, both deposed to by Suzanne Oluwole, a legal officer in the CRES Project Group Department of the Respondent’s company. The 1st counter affidavit was filed on 26/5/11 and is made up of 52 paragraphs with 19 Exhibits attached and marked SO.1 SO.19. The second counter affidavit was filed on 8/6/11 and has 17 paragraphs with seven exhibits annexed and marked SO .20 to so.26.
In moving this application, the Applicant who appeared in person, relied on the two affidavits and all the exhibits annexed thereto and submitted that the situation in this application is such that an interlocutory injunction should be granted Referring to Exhibit SO.1 attached to Respondent’s 1st counter affidavit, particularly clause 1(d), (e) and (f) and paragraph 5 of the affidavit in support of this motion, he submitted that the premises of the Respondent i.e., No. 142 Ahmadu Bello Way, Victoria Island, Lagos is meant for residential purposes only and cannot accommodate a huge commercial building to the annoyance of its neighbours. That the lower court visited the property and made a preservative order as contained in Exhibit SO .14 annexed to Respondent’s 1st counter affidavit. Learned counsel further contended that the 14 storey building by the respondent will destroy the amenity value of his property. According to the Applicant, he had prayed the court below to extend the life span of the preservative order but the court below refused and an appeal has been filed in this court.
On the assertion by the Respondent that it has a building permit, the Appellant submitted that a building permit or licence cannot be a licence to commit nuisance, relying on the case of Adediran v. Interland Transport Ltd. (1991) 2 NSCC 707 at 722-722 has 50-58. The Applicant then submitted a list of authorities to assist this court in deciding this matter and urged us to grant the application. Some of the authorities include Akinpelu v. Adegbore (2008) 10 N.W.L.R. (pt. 1096) 531; Onyeson v. Nze Christopher Nnebedum & Ors. (1992) 3 N.W.L.R. (pt.229) 315 at 318; Adenuga & ors. v. Odunewu & ors. (2oo1) 2 N.W.L.R. (pt. 696) 184 amongst others.
In response, the learned counsel for the Respondent submitted that the court below was right to refuse to extend the preservative order because there was already an appeal before this court. That in considering this application, the Applicant must, apart from the need to preserve the res, show that he has a right to be protected by the grant of an injunction. He relies on the cases of Kotoye v. CBN & Ors. (1989) 1 N.W.L.R. (pt.98) 419 and Obeya Memorial Specialist Hospital v. Attorney General of the Federation & Anor. (1987) 2 NSCC 961.
Learned counsel submitted further that the balance of convenience in this matter is in favour of the Respondent because Section 43 of the 1999 Constitution of the Federal Republic of Nigeria gives the Respondent as a corporate citizen of Nigeria the right to acquire and develop immovable property in Nigeria. That as long as the Respondent only, the laws of the land, it has a right to develop its property. That since the Lagos State Government has given approval for the Respondent to construct the building; the Applicant should rather sue the Government and not the Respondent. He refers to the case of Attorney General of Lagos State v. Attorney General of the Federation (2003) 12 N.W.L.R. (pt.833) 1.
It was the further submission of learned counsel that if work is stopped now, it will lead to structural defect and the building may collapse and kill people. He refers to paragraph 7 of the 2nd counter affidavit and the case of IMB Nig, Ltd. v. Dabiri & Ors. (1998) 1 N.W.L.R. (pt.533) 284 at 299.
On the submission of the Applicant that the property was for residential purpose only, he contended that the covenant was made between the Respondent and Lagos State Government. That by Exhibit S.O.6 which is Lagos State Government regulation on town planning as currently established, it is seen that the Government has changed the character of the area as the minimum level or height of building there is 7 floors and the maximum is 15 floors. It was counsel’s conclusion that should the Applicant intend to challenge the approval, he should direct it to the Lagos State Government. He urged this court to hold that all the authorities cited by the Applicant are inapplicable in this case. He urged this court to refuse the application.
In a brief rejoinder, the Applicant submitted that the learned counsel for the Respondent attempted to argue the main case at the court below and that his arguments should be discountenanced.
Before I determine this application, I wish to observe that both the Applicant and the Respondent (particularly in its 1st counter affidavit) dwelt so much on the substantive matter before the lower court and even the appeal in this court. These are matters which ought not to be canvassed at this stage. I shall therefore ignore these paragraphs of the affidavit and arguments which tend to eat into the substantive matter.
An interlocutory injunction is an injunction that is directed to ensure that a particular act or acts do not take place or continue to take place pending the final determination by the court of the rights of the parties, Put differently, this class of injunctive relief is to regulate the position of the parties pending the trial and determination of the issue between them whilst avoiding a decision on such issues which could only be resolved at the trial. The purpose therefore is to protect a Plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the case were resolved in his favour at the trial. Notwithstanding the right of the Plaintiff to be so protected, it has to be weighed against the corresponding need of the Defendant to be also protected against injury resulting from him having been prevented from exercising his own legal right if the uncertainty were resolved in his favour at the trial. See Obeya Memorial Specialist Hospital & Anor. v. Attorney General of the Federation & Anor. (1987) 2 NSCC 961; Ojukwu v. Government of Lagos State (1986) 3 N.W.L.R. (pt. 26) 39.

In Kotoye v. CBN & 7- Ors (1989) 1 N.W.L.R. (pt.98) 419, the Apex Court laid down the general principles guiding the grant or refusal of an application for interlocutory injunction.
These guiding principles include the following:
“7. The Applicant must show that there is a serious question to be tried, i.e., that the Applicant has a real possibility, not a probability of success at the trial, notwithstanding the defendant’s technical defence, if any.
2. The Applicant must show that the balance of convenience is on his side, that is, that more justice will result in granting the application than in refusing it.
3. The Applicant must show that damages cannot be an adequate compensation for his damage or injury, if he succeeds at the end of the day.
4. The Applicant must show that his conduct is not reprehensible for example that he is not guilty of any delay.
5. No order for an interlocutory injunction should be made on notice unless the Applicant gives a satisfactory undertaking as to damages save in recognized exceptions.”
Put in a very short and simple manner, the following questions should be answered in considering an application for interlocutory injunction. That is to say:-
1. Is there a serious issue to be tried?
2. Are damages an adequate remedy?
3. Where does the balance of convenience lie?
4. Are there any special factors to be considered?
See Gbadamosi v. Alete (1998) 12 N.W.L.R. (pt.578) 402; Missini v. Balogun (1968) 1 All NLR 318; Akinpelu v. Adegbore (2008) 10 N.W.L.R. (pt.1096) 531; Globe Fishing Ind. Ltd. v. Coker (1990) 7 N.W.L.R. (pt.162) 265; 7-Up Bottling Co. Ltd. v. Abiola & Sons Nig. Ltd. (1995) 3 N.W.L.R. (pt.383) 257.

Let me quickly add that the purpose of an interlocutory injunction is, apart from protecting the right of the Applicant, it is also meant to preserve the res from being eaten up. It does not make sense to allow the res to be destroyed or annihilated before the Judgment of the court in the substantive matter. Both the court from which an appeal lies as well as the court to which an appeal lies have a duty to preserve the res for the purpose of ensuring that the appeal, if successful is not rendered nugatory. See Governor of Oyo State v. Akinyemi (2003) 1 N.W.L.R. (pt.800) p.1; Onyeson v. Nze Christopher Nnebedum & Ors. (1992) 3 N.W.L.R. (pt. 229) 315.
In Obioha v. Military Administrator of Imo State (1998) 10 N.W.L.R. (pt.569) 205 at 222, this court per Katsina-Alu, JCA (as he then was), said:-
“The purpose of an interlocutory injunction is to maintain the status quo and thereby preserve the res the subject matter of litigation from being wasted, damaged or frittered away, with the result that if the appeal succeeds the result would be nugatory in that the successful Appellant would only reap an empty Judgment.
To further state the law on this subject, the Applicant is not at this stage required to make out a prima facie case before he can be granted an interlocutory injunction. However, the court has to be satisfied that the Applicant’s case is not frivolous or vexatious and that there is a serious issue or question to be tried. See Falomo v. Bamigbe (1998) 7 N.W.L.R. (pt.559) 679.
It has to be further underscored the fact that this is an equitable remedy which is at the discretion of the court to grant. The Applicant therefore has an unfettered duty to satisfy the court that in the special circumstance of his case, he is entitled on the facts presented by him, to the relief. See Ayorinde v. Attorney General of Oyo State (1996) 3 N.W.L.R. (pt.434) 20. Also, in Ochido v. Oseni (1998) 13 N.W.L.R. (pt.580) 103, it was held that an interlocutory injunction will be refused if it should appear to be unjust or highly unreasonable to grant having regard to the well known equitable considerations such as hardship or balance of convenience or such other matters.
Some years back, this court, in Isamade v. Okei (1998) 2 N.W.L.R. (pt.538) 455 at 467 per Tobi, JCA (as he then was) held that: –
“Relief for interlocutory injunction like most other reliefs, is punitive, and therefore, should be granted only after due process of law, which involves giving the parties a fair hearing. The relief of interlocutory injunction which has capacity of “arresting” the res in dispute, pending the determination of the matter, deserves a full, dispassionate and proper consideration. This is because its transient effect is just as good as the relief of perpetual injunction, as long as it lasts, that is to say as long as the matter is not fully disposed of”.
Having restated the general principles relating to interlocutory injunction, the only issue at hand and for consideration is whether or not the said application satisfies the conditions warranting the exercise of discretion in favour of the Applicant. The determination of the said issue calls for the consideration of all the material facts placed before the court.
The grant or refusal of same is at the discretion of this court. This discretion of course, has to be exercised judicially and judiciously. It has to be kept flexible and discretionary. See Hubbard v. Vosper (1972) 2 QB 84 at 94.
From the affidavit evidence of both parties’ the salient issues thrust on the front burner call for an in-depth analysis in order to assist the court comes to a reasonable and an equitable decision. A summary of the facts deposed to in the Affidavit of the Applicant shows that he seeks to protect an existing legal right to air, light, protection against noise pollution and emission of toxic gaseous substances into his dwelling house’ On the other hand, the Respondent’s case strongly hinges on the fact that the property sought to be developed rightly belongs to it and that the Lagos state Government has given approval for the development of the said property’ The relevant paragraphs of the affidavit which captures the Applicant’s case are paragraphs 9 – 31 and I shall reproduce them here Paragraphs 9 – 31 states:-
“9. That the Appellant/Applicant filed an application before the lower court dated 7th December, 2010, seeking an extension of the order of preservation of status quo made by the lower from the 21st December, 2010 until further directives as to and/or pending the hearing and determination of the substantive suit, whether by accelerated trial or otherwise. See page 292 a 314 of the record of appeal in this matter for the said motion on notice and the Affidavit in support together with the written submission dated 7th December, 2010.
10. That on the 19th of April, 2011, the lower court delivered its ruling dismissing the application referred to in paragraph 9 above. The certified true copy of the Ruling of the lower court dated 19th April, 2011, is attached herewith and marked Exhibit DO/1
11. That the Appellant/Applicant, being dissatisfied with the said Ruling has since appealed it to this Hon. Court by a Notice of Appeal dated the 21st April, 2011. The certified true copy of the Notice of Appeal is attached herewith and marked Exhibit DO/2.
12. That the substantive suit between the parties herein is yet to be tried at the lower court, and the main relief sought by the Appellant in the suit is a DECLARATION that the Respondent’s proposed construction of a 14 storey building and a 5 level car Part at no, 742, Ahmadu Bello Way, Victoria Island is unlawful and damaging to the rights of the Appellant. The certified true copy of the respondent’s letter dated 6th September, 2010, informing the Appellant of its proposed building of a 14 floor tower including a 5 level car park is attached herewith and marked Exhibit DO/3.
13. That furthermore, the Appellants/Applicant also seeks a perpetual injunction to restrain the Respondent from using or causing or permitting to be used for any purpose other than residential, or building on the site situate, lying and being at No. 142 Ahmadu Bello Way, Victoria Island, Lagos.
14. That despite the pendency of the said substantive suit, the Respondent still continues to carrying on civil, engineering and building works on its property. Now shown to me and marked Exhibits DO/4A and DO/B are copies of photographs dated 9th of December, 2010 and copies of photographs taken on 6th April, 2011, showing the swift progress of ongoing civil, engineering and building works on the premises of the Respondent.
15. That now shown to me and marked Exhibit DO/5 are copies of photographs taken on 12th of May, 2011 evidencing ongoing civil, engineering and building works being carried out by the Respondent on its property directly opposite the Appellant’s residence, whilst the appeal is pending in this court.
16. That the actions of the Respondent in carrying out civil, engineering and building works on its property during the pendency of the substantive suit and this appeal is destroying the res in this matter.
17. That the Respondent’s act of continuing civil, engineering and building works during the pendency of the substantive suit and the appeal herein has already altered the res and status quo; and would certainly render nugatory the outcome of the appeal herein unless a preservative order maintaining the status quo pending the appeal is granted.
18. That by its continuation of civil, engineering and building works, the Respondent is executive precipitously the very evil, which is at the heart of the Appellant/Applicant’s complaint in the substantive suit and the appeal herein.
19. That the Claimant’s right to the enjoyment of the AMENITIES VALUE of his residential property (right to air, light, protection against noise pollution and emission of toxic gaseous substances), the protection of which is the crux of his claims in the substantive suit, is at a great risk of being destroyed.
20. That the res in this appeal and in the pending substantive suit is the protection of the AMENITIES VALUE of the Appellant’s residential property which the Respondent’s proposed development would irreparably destroy before the appeal herein is heard and determined, unless a preservative order is granted.
27. That this court has not only the power but also the duty to protect the res in this appeal.
22. That an order restraining the Respondent from commencing and/or continuing civil, engineering and building works pending the hearing and determination of the Appellant/Applicant’s appeal thus becomes absolutely necessary in the circumstances if a fait accompli is not to be foisted on this Honourable Court.
23. That the Appellant herein has a legal right to the quiet use and enjoyment of his property for residential Purposes.
24. That there are substantial issues to be determined in this appeal and at the trial of the substantive suit necessitating the need to preserve the res and maintain status quo -pending the hearing and determination of the Appellant’s appeal.
25. That the Appellants/Applicant has by its Notice of Appeal raised substantial issues of law that denies the lower court the option to dismiss – as it did the Appellant/Applicant’s application dated 7th December, 2010.
26. That by the dismissal of the Appellant/applicant’s application dated 7th December, 2010; the lower court has given the Respondent a free ride not only to continue its interference, lis pendens with the res, but also to steal a match against the Appellant/Applicant.
27. That the balance of convenience is a favour of granting this application.
28. That the Appellant/Applicant’s appeal would be rendered nugatory if this application is not granted.
29. That unless this Honourable Court restrains the Respondent from continuing civil, engineering and building works, the Applicant’s legal rights would be irreparably damaged.
30. That monetary damages cannot adequately compensate the Appellant for the violation of his rights and the destruction of the amenities value of his property when this appeal succeeds.
37. That it is in the interest of justice that this Honourable Court grants this application”.

From the above paragraphs of the affidavit of the Applicant in support of the application, particularly, paragraph 19, the Aplicant has stated this right which he alleges is being threatened. The paragraph states:
“19. That the Claimant’s right to the enjoyment of the AMENITIES VALUE of his residential property (right to air, light, protection against noise pollution and emission of toxic gaseous substances), the protection of which is the crux of his claims in the substantive suit, is a great risk of being destroyed.”
It is part of the Applicant’s case that the learned Trial Judge visited the site of the project and thereafter made a preservative order which had since lapsed and which the court below refused to extend since there is an appeal on the issue before this court. The right of the applicant sought to be preserved is, accordingly, right to air, light and protection against noise pollution and emission of toxic gaseous substances. This right to air and light is what is legally termed as right of easement which means a right annexed or attached to land to utilize or enjoy another land owned by another person in a particular manner and it may sometimes give additional right to or prevent the owner of the dominant tenement from utilizing his own land in a particular manner. This right confers no proprietary or possessory right in the land affected, but merely imposes a definite and limited restriction upon the proprietary rights of the owner of the land. See Okunzua v. Amosu (1992) 6 N.W.L.R. (pt.247) 416 and Olusanya v. Osinaje (2001) 13 N.WL.R. (pt.730) 298.
There is no doubt that our laws recognize the right to easement and where there is a threat to such right, the law and the courts must protect such rights. Incidentally, one of the issues the Applicant must show to this court is that there is a triable issue or that he has recognizable right which is being threatened for which the court is being urged to protect. All that an Applicant is expected to do at this state is to establish a legal right. There is therefore no legal duty to prove his case on the preponderance of evidence or on the balance of probability. See Woluchem v. Wokoma (1972) 3 SC 153; Ladunni v. Kokoyi (1974) 3 SC 31; ACB Ltd. v. Awogboro (1991) 2 N.W.L.R. (pt. 176) 711; Obeya Memorial Specialist Hospital v. Attorney General of the Federal (Supra).
The Respondent had written Exhibits SO/4 & SO/5 to the Applicant. These are invitation letters to the Applicant for a question and answer session in respect of the development of a new head office for Standard Chartered Bank Nigeria Ltd. located at No. 142 Ahmadu Bello Way, Victoria Island, Lagos. Paragraph 3 of this said invitation letter recognizes the right and fears of the Applicant herein. The paragraph states:-
“In consideration of you as our immediate neighbor and the amount of work that will shortly commence at the site, we have set up a Q & A session to address your Concerns and any questions you may have, and to give you a level of comfort that SCBN has put in appropriate safeguards to ensure that the construction has no impact on your building”.
It is unfortunate that the parties herein were unable to sort out themselves at the Q & A session which the Respondent’s letter had wished to achieve. Equally, the lower court’s induced meeting for a possible amicable settlement also failed to produce an amicable result. Both on the appeal before this court on the matter and the issue before the court below, I am of the view that there is a triable issue before the court. The right to air and light which the applicant is afraid may be completely destroyed is the res in the matter sought to be protected.
The Respondent, in its counter affidavit had deposed to the fact that the area where the properties of the parties situate at Ahmadu Bello Way, has been re-designated as both for residential and commercial purposes and that there are other commercial concerns in the area. I think, these are matters to be tried in the substantive matter. This court cannot dabble into matters which shall be ventilated before the trial court. It is the duty of the court to protect the res from being completely destroyed. Although the right of easement is not given prominence by some Nigerians, it is an important right for the well being of owners of properties and whenever this right is threatened, the court should be in a position to protect it. Also, even where there is approval or building permit from Government, this does not obliterate the right of easement which the law confers on the neighbours. No building permit should be interpreted to mean that such a building can completely annihilated the right to air and light of the adjoining property. These are issues which evidence has to be taken and decided upon as the matter is still pending at the court below. So, I need not say more on this. See Adediran v. Interland Transport Ltd. (1991) 2 NSCC 717 at 722 – 733.
Assuming that this court refuses to grant this application and the Respondent is allowed to build the 14 storey building to completion before the issues between the parties are determined by the court, can the Applicant be adequately compensated with damages? The Applicant has stated in paragraphs 29 and 30 of his supporting affidavit that unless this court restrains the Respondent, his legal rights would be irreparably damaged and that monetary damages cannot adequately compensate him for the violation of his rights and the destruction of the amenities value of his property if the appeal succeeds.
The Respondent has however posited that the Applicant, by his own admission in his reliefs/claims before the lower court that damages would adequately compensate him were he to succeed in regard of his claim still pending before the lower court. I repeat here that it is not proper to delve into the substantive matter still pending at the court below, but suffice it to say that there are five heads of claim in the Applicant’s statement of claim. Whereas the first and second reliefs relate to the construction of a 14 storey building by the Respondent, the third relief relates to damages for nuisance due to the noise and pollution of the giant electric generating sets which has led to great discomfort to the Claimant over a long period of 10 years. (See pp. 1-7 of the Record of Appeal).
Thus, it appears to me that the 3rd head of relief relates to noise pollution from generators whereas reliefs 1 and 2 relate to the height of the building which is alleged would deprive the Applicant of his right to air and light to his residence. I think property developers, not only in Lagos, who now dot our towns and cities with sky scrapers should take their neighbours who dwell in bungalows and one or two storey buildings into consideration for their enjoyment of amenities like air and light especially where the buildings are too close.
I need to state here that should this appeal and the Applicant’s case at the lower court also succeed and it turns out that the Respondent has completed the 14 storey building, apart from the res being completely destroyed and a fait accompli foisted on the court, the Applicant may not be adequately compensated in damages except to ask the Respondent to relocate the house of the Applicant or pay for its full value to enable him relocate. Alternatively, will it be in the interest of the Respondent to pull down its own structure in order to let air and light penetrate the Applicant’s property? These are issues agitating the mind of the court. Will it not be proper to ask the Respondent to slow down construction while the court makes effort to resolve the issues between the parties? What will the Respondent lose in the circumstance?
This brings me to the other issue called balance of convenience. In Obeya Memorial Specialist Hospital v. Attorney General of the Federation (Supra) it was held that in this type of situation, the court must weigh one need against the other and determine where the balance of convenience lies. Put differently, where, of the two parties will more justice result in granting the application than in refusing it? I think more justice will be done to the party who will suffer irreparable damage or loss if the application is granted. That is to say, should the res be completely destroyed and the Applicant wins the case, what will he get? Nothing I guess, except the Respondent will be willing to relocate the Applicant. And that will be if the Applicant will be willing to leave that environment. I think the loss may be unquantifiable. It is my view that the party whose right is about to be extinct will suffer more if this application is refused. The Respondent will only suffer a temporary delay in the completion of his project should this application be granted. See Missini v. Balogun (1968) 1 All NLR 318.
Is there any special factor(s) to be considered? I think the trend for indiscriminate use of purely residential areas for commercial and industrial purposes is an interesting issue which our town planning officers ought to look at and I think this will be an interesting hearing at the court below. Persons who have been lured to purchase properties meant for their quiet enjoyment and comfort should be able to maintain that status. Should anybody complain about noise pollution around his residence? What about toxic and chemical waste emitted from some of these commercial and industrial concerns embedded in purely residential areas? These and more, I guess will agitate the minds of both counsel and the court when this matter shall be heard at the court below.
I would have been persuaded to order an injunction as prayed by the Applicant herein but having regard to the counter affidavit No. 2 of the Respondent, it appears I have to look at the matter more closely. I refer to paragraphs 12 – 15 of the said 2nd counter affidavit which I hereby reproduce:-
“12. I was on Friday, the 3rd day of June, 2011 at the” offices of the Respondent situate at No.142, Ahmadu Bello Way, Victoria Island, Lagos, at about 3pm, informed by Adeboye Fowora, the Project Manager, Nigeria Head Office of the Respondent, and I verily belief him, that-
(a) Messrs. Trevi Foundation Limited is presently engaged in piling works relating to the construction of the foundation of the Respondent’s Government approved 14- storey building.
(b) These piling works entail the casing of concrete which process is on-going at the Respondent’s afore-mentioned property and must be commenced and completed in one unbroken and single civil engineering process in order to forestall any defect in the structure or its collapse.
(c) The stoppage of civil works at the Respondent’s property aforementioned would entail the stoppage of the piling works and lead to the – civil engineering process associated with it being broken.
(d) The facts which I have stated in subparagraphs (a) (c) above would invariably lead to structural defects in the Respondent’s proposed building and may lead to the loss of lives and property.
(e) Messrs, Cappa & D’Alberto are presently engaged in the construction of underground services at the Respondent’s property, all of which entail the casing of concrete and which must be commenced and completed in one unbroken and single civil engineering process.
Annexed and marked Exhibits SO. 24-26 are photographs showing the on-going civil engineering works as stated above.
13. I know as a fact that upon the compliance by the Respondent with the terms of preservative order in the nature of an interim order of injunction made by the High Court of Lagos State on the 24th day of November, 2010, and in favour of the Appellant/Applicant (Claimant before the High Court of Lagos State), the Respondent incurred costs in the sum of N4,714, 286.00 (four million, seven hundred and fourteen thousand, two hundred and eight six naira) only, being the amount which it paid to Messrs. Cappa & D’Alberto, and representing associated expenses/costs incurred by the said contractor by reason of the stoppage of works then ordered by the High Court of Lagos State.
14. The Appellant/Applicant has never given any undertaking to the Respondent to indemnify the Respondent in costs with respect to any of the injunctive reliefs which he has been granted or seeks.
15. The Respondent as a responsible corporate citizen finds it prudent to err on the side of caution and not take any step which may result in the loss of lives or property”.
I tend to believe that the depositions in paragraph 12a of the counter affidavit (No.2) are true as there is nothing to suggest otherwise. It is not the intention of this court, or any court whatsoever, to make an order which will cause unnecessary hardship on any party. Court orders are meant to regulate the conduct of human affairs and ought not to be made where it will cause irreparable damage to a party. The Respondent says the contractor handling the project has advised that since the foundation is being cast, it will cause structural defect to the property if stopped, since piling works entail the casting of concrete which must be completed in one unbroken and single civil engineering process in order to forestall its collapse. This is a public building though undertaken by a private concern. And indeed in constructing property, great care must be taken in order to make it stand the test of time and to protect members of the public who may use it from time to time. I shall make an order which will take this into consideration.
On the whole, I am favorably disposed to exercising my discretion partly in favour of the Applicant. I hereby grant this application in the following terms:-
1. I hereby make an order of interlocutory injunction restraining the Respondent, guia timet whether by itself, its agents, and proxies or howsoever from continuing to carry on civil, engineering and building works beyond the 2nd floor in respect of the building project proposed by the Respondent at No. 142 Ahmadu Bello Way, Victoria Island, Lagos Pending the hearing and determination of the Appellant/Applicant’s appeal to this court dated 21st April, 2010.
2. An accelerated hearing is hereby ordered on the said appeal.
3. I make no order as to costs.

ADZIRA GANA MSHELIA, J.C.A.: I have had the privilege to read before now the Ruling of my learned brother, Okoro J.C.A. just read. I agree with the reasoning and conclusion arrived thereat. I only wish to add few words of mine in agreement. In an application for interlocutory injunction the court is called upon to exercise its equitable jurisdiction in the light of the facts presented before it by the applicant. In the instant case applicant by his affidavit evidence has established that he has a legal right capable of being protected by such an order. The right of the applicant sought to be preserved is, right to air, light and protection against noise, pollution and emission of toxic gaseous substances. In paragraph 19 of the affidavit in support applicant has stated this right which he alleges is being threatened. For clarity paragraph 19 read thus: –
“19. That the claimant’s right to the enjoyment of the amenities value of his residential property (right to air, light, protection against noise pollution and emission of toxic gaseous substances), the protection of which is the crux of this claims in the substantive suit, is a great risk of being destroyed.”
The complaint of the applicant relates to right of easement. From the affidavit evidence of both parties, it is my considered view that there is a serious question to be tried at the hearing. See: Oyeyemi v. Irewole Local Government (1993) 1 NWLR (Pt. 270) 462 at 461; Onyesoh v. Nze Christopher Nneidun-& ors. (1992) 3 NWLR (Pt. 229) 315 at 318 and Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419 at 441.
An application for an interlocutory injunction pending appeal is usually granted for the main purpose of keeping matters in status quo so as to preserve the res until the issue between the parties is determined. See: Animashanu v. Government Lagos State (2002) 16 NWLR (Pt.793) 282 at 290 -291.
The question now is has the applicant proved that the balance of convenience is on his side.
What is meant by balance of convenience is the disadvantage to one or the other side which damages cannot compensate. In ASCB v . Awogboro (1991) 2 NWLR (Pt. 176) 711 at 719 Tobi JCA (as he then was) defined balance of convenience as follows: –
“The balance of convenience (the opposite of inconvenience) between the parties is a basic determinant factor in on application for interlocutory injunction. In the determination of this factor, the law requires some measurement of the scales of justice to see where the pendulum tilts. While the law does not require mathematical exactness, it is the intention of the law that the pendulum should really tilt in favour of the applicant.”
I have carefully examined the facts deposed to by the respondent in paragraphs 2 – 15 of the second counter affidavit. The complaint in my humble view cannot be taken lightly. The only fair approach in the circumstance is as proffered by my learned brother in the lead ruling. I would not hesitate to say that applicant is entitled to the exercise of court’s discretion in his favour.
It is for this reason and the fuller reasons so ably articulated by my learned brother, that I will also partly grant the application. I endorse all the orders made in the lead ruling, inclusive of costs.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read before now the lead Ruling just delivered by my Lord, John Inyang Okoro J.C.A. and I have no hesitation in humbly adopting in to the conclusion arrived at and the order made relating to costs as my lord has so meticulously and most reasonably reviewed the affidavit evidence in coming to the conclusion that the Applicant has surely disclosed a triable case, on appeal as his right to the easement of full enjoyment of the Amenities of life as relating to air, freedom from pollution and Noise are being threatened.
The existence of such a right is in the nature of not only a right in Civil tort but indeed a constitutional right to the plenitude and full enjoyment of one’s property as guaranteed by sections 40 and 44 of the 1999 Constitution of the Federal Republic of Nigeria. See my concurring judgment in the unreported decision of this court in suit No. CA/L567/06 – BRIGADIER GENERAL FRED CHIJUKA V. GOVERNMENT OF LAGOS STATE delivered on 10th November, 2010 wherein I stated as follows:
“… and also the right of peaceful and quiet enjoyment of Plaintiffs/Appellants over or in their properties (under section 44 of the Constitution as (omitted) were threatened. Such threats, whether eminent or not brought the claimants within the provisions of section 46(1) of the 1999 Constitution and conferred on them the locus standi to seek for redress in the High Court.
A situation where a claimant claims a quia – timet injunction in tort is founded on a notion of apprehension of a threatened violation of a right. Section 46 (1) 1999 Constitution allows access to court in the circumstance. Such a violation or threatened violation of right confers the Applicant the locus standi to sue quiatimet (because he fears) for the protection of this right against its threat and imminent interference or erosion”See also LADUNMI V. KUKOYI (1972) 1 ALL NLR (Pt 1) 733; OKECHUKWU V. OKECHUKWU (1989) 3 NWLR (pt.708) 234.1 7UP BOTTLING CO. LTD. V. BISHOP ABIOLA (1995) 4 NWLR (pt. 3989) 287.
A prima facie or arguable case having been disclosed or made from the Affidavit in support of the application and since the only relevant averments as can be seen from the second counter affidavit as far as is material being paragraphs 12 – 15 as reproduced in the lead Ruling (obviating the need to repeat same) indicate the fact that the major or only fear or concern of the Respondent is the fact that the foundation might crack and cause structural defects if it is not completed in one fell swoop at this stage of piling works relating to the construction of the foundation of the Respondent’s Government approved 14 storey building, I should think that while this may well be, as it is evidence deriving its source from the Project Manager of the Respondent who this court may take judicial Notice of as an expert in construction Industry, the inference may not be conclusively drawn that the Respondent will suffer any greater hardship or inconvenience than the Applicant if the relief sought is granted.
The averment relating to the incurrement of financial costs or loss previously when an interim preservative order was made (as alluded to at paragraph 13 of the counter affidavit shall not, without more, constitute proof of the prospective or certain loss that shall be occasioned by the Respondent if the order sought is granted.
The basis for payment of the sum of N4,714,286.00 to Messrs Cappa of D’Alberto as representing associated expenses/costs incurred by the said contractor by reason of the stoppage of works then ordered by the High Court of Lagos State has not been shown. It has not been shown that such payments would necessarily re occur if this court made the order sought; what formed the basis and how the cost will certainly arise and proof of the payment of the sums claimed have not been shown.
That portion of the averment, in the affidavit though not countered or challenged does not really prove what it hopes to achieve; as it is not after all such that needed to be countered, or averment without flesh. It is a good corporate citizenship posture as averred in paragraph 15 of the counter affidavit to ensure that the foundation to the 14 storey building sought to be stopped is not carried out shoddily by breaking the casting thereof but to rather in one fell swoop, complete, same to avoid structural defects, but the balance of convenience however tilts in favour of granting an order of interlocutory injunction quaitimet to take effect after the completion of the foundation pending the determination of the appeal before this court.
To ameliorate the possible costs that may be occasioned by the stoppage of work in case the appeal turns out against the Applicants, it is ordered that the Respondent may proceed with its construction up to the 2nd floor of the construction work nonetheless, while accelerated hearing of the appeal filed is hereby ordered. For the avoidance of doubt I agree with and abide by the orders in the lead ruling granting an interlocutory order of injunction to take effect only after the completion of the second floor of the 14 storey building approved for construction and also the order as to costs.

Appearances

Dr. Tunji BraithwaiteFor Appellant

AND

A. A. Adegbomire Esq. with O. Keshinro (Miss)For Respondent