MR FRANCIS TEMEWEI & ORS v. MR TOM BENBAI & ORS (2015)

MR FRANCIS TEMEWEI & ORS v. MR TOM BENBAI & ORS

(2015)LCN/7948(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 8th day of July, 2015

CA/B/149/2005

RATIO

PRACTICE AND PROCEDURE: INJUNCTION; THE DEFINITION OF INJUNCTION

Black’s Law Dictionary 6th Edition page 714 defined Injunction as an order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury. In Adenuga Vs Odunewu (2001) 2 NWLR Part 696 Page 184, the Supreme Court per Karibi-Whyte JSC defined injunction at Page 185 as follows:-
“an equitable order restraining the person to whom it is directed from doing things specified in the order or requiring in exceptional situations the performance of a specific act”.
The preservation of the subject matter i.e. “res” in dispute or the maintenance of the “Status quo” is achieved through the judicial process of the equitable order of injunction. And since injunction is an equitable remedy, it is usually granted at the discretion of the court which must be exercised judicially and judiciously. per. JIMI OLUKAYODE BADA, J.C.A.

COURT: GRANT OF INTERIM AND INTERLOCUTORY INJUNCTION; THE CONDITIONS THE COURT MUST CONSIDER IN THE EXERCISE OF ITS DISCRETION IN GRANTING INTERIM AND INTERLOCUTORY INJUNCTION AND THE PRINCIPLES GUIDING THE APPLICATION OF INTERLOCUTORY INJUNCTION

For the court to exercise its discretion in favour of an applicant, certain conditions must exist and this must be shown in the affidavit accompanying the motion on notice.
The conditions for grant of interim and interlocutory injunctions are basically the same except for the element of urgency in interim injunction which is not pronounced in interlocutory injunction.
The conditions include:-
(a) Existence of a legal right
(b) Substantial issue to be tried
(c) Balance of convenience
(d) Irreparable damage or injury
(e) Conduct of the parties
(f) Undertaking as to damages.
Also in Buhari Vs Obasanjo (2003) 17 NWLR Part 850 Page 587, the Supreme Court per Niki Tobi, JSC spelt out the principles guiding the application of interlocutory injunction on pages 648-649 as follows:-
(1) There must be subsisting action.
See – The praying B and of S Vs Udokwu (1991) 3 NWLR Part 182 Page 716.
(2) The subsisting action must clearly donate a legal right which the applicant must protect.
See – Kotoye Vs CBN (1989) 1 NWLR Part 98 Page 419; Woluchean Vs Wokoma (1974) 3 SC. Page 153; Obeya Memorial Hospital Vs Attorney General of the Federation (1987) 3 NWLR Part 60 Page 325
(3) The applicant must show that there is a serious question or substantial issue to be tried. See Kotoye Vs CBN (Supra), Nigerian Civil Service Union Vs Essien (1985) 3 NWLR Part 12 306, Nwose Vs Mbaekwe (1973) 3 ECSLR Page 136.
(4) And because of 3 above, the “Status Quo” should be maintained pending the determination of the substantive action. See – Kotoye Vs CBN (Supra); Fellowes Vs Fisher (1975) 2 All E.R Page 829; American Cynamid Co Vs Ethicon Ltd (1975) A.C. Page 396.
(5) The applicant must show that the balance of convenience is in favour of granting the application. See – Kotoye Vs CBN (Supra); Obeya Memorial Hospital Vs Attorney General of the Federation (Supra); Akinlose Vs A.I.T Ltd (1961) WNLR Page 116.
(6) The applicant must show that there was no delay on his part in bringing the application. See – Kotoye Vs CBN (Supra).
(7) The applicant must show that damages cannot be adequate compensation for the injury he wants the court to protect. See – Kotoye Vs CBN (Supra); Obeya Memorial Hospital Vs Attorney General of the Federation (Supra).
(8) The applicant must give an undertaking to pay damages in the event of a wrongful exercise of the court’s discretion in granting the injunction. See – Kotoye Vs CBN (Supra); Itama Vs Osaro-Lai (2000) 6 NWLR Part 661 Page 515. per. JIMI OLUKAYODE BADA, J.C.A.

APPEAL: INTERLOCUTORY INJUNCTION; THE EFFECT OF THE DELAY OF THE APPLICANT IN COMING UP WITH A CLAIM

In Kotoye Vs CBN & Others (Supra) it was held among others that
“Also delay in bringing the application will defeat it because such a delay postulates that there is no urgency in the matter and destroys the very bane for a prompt relief by way of interlocutory injunction”. per. JIMI OLUKAYODE BADA, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

Between

(1) MR. FRANCIS TEMEWEI
(2) CHIEF COUNCIL GUWOR
(3) MR. WILLIAM BORME
(For themselves on behalf of Ogulagha Community in Burutu Local Government Area) Appellant(s)

AND

(1) MR. TOM BENBAI
(2) MR. VINCENT EKAEMIEFAR
(3) MR. J. D. EMODOUGHAYE
(4) MR. KENNETH WERININE
(For themselves and on behalf of Oborotu Community in Burutu Local Government Area)
(5) HON. COMMISSIONER FOR LANDS & SURVEYS DELTA STATE
(6) HON. COMMISSIONER FOR FINANCE DELTA STATE
(7) EXECUTIVE GOVERNOR, DELTA STATE
(8) HON. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, DELTA STATE Respondent(s)

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Ruling of the High Court of Justice Delta State of Nigeria in the Bomadi Judicial Division, holden at Bomadi in Suit NO. HCB/1/2003, HCG/42/2004 between MR. FRANCIS TEMWEI AND 2 OTHERS (For themselves and on behalf of Ogulagha Community in Burutu Local Government Area) VS MR. BENEBAI AND 7 OTHERS delivered on 9th day of December, 2004 wherein the learned trial Judge dismissed the Appellant’s application at the Lower Court.

The facts of the case are that the Appellants i.e the Plaintiffs at the Lower Court instituted an action at the High Court of Justice Delta State vide their writ of summons and claimed against the Defendants now Respondents as follows:-
1. Declaration of title under Ijaw Native Law and Custom to all that piece and/or parcel of land situate at and known as Osain Land which said piece or parcel of land is well known to the parties herein and is situate in Burutu Local Government of Delta State of Nigeria within the jurisdiction of this Honourable Court.
2. Declaration that the Plaintiffs are the only person entitled to receive any Compensation or any payment(s) by whatever name called in respect of the sale, hire, lease, acquisition or however in respect of the Osain Land and its surrounding area and in particular for the acquisition by the Delta State Government through the 6th – 8th Defendants of the shore line up to the hinter land for the Forward Operational Base for the Nigerian Navy.
3. An order of perpetual injunction restraining the 1st – 4th Defendants, their servants, agent and/or privies from demanding and/or receiving any compensation and/or payments by whatever name called for the acquisition or in any manner however for any part of the osain land and in particular in respect of the acquisition by the Delta State Government through the 5th – 8th Defendants of the shore line up to the hinter land of the Osain Land for the Forward Operational Base for the Nigerian Navy.
4. An order of perpetual injunction restraining the 5th – 8th Defendants, their servants, agents and/or privies from making any payments by whatever name called for the acquisition of any part of Osain Land to the 1st – 4th Defendants, their servants, agents and/or privies and in particular for the acquisition of the shore line of the Osain Land to the hinter land for the Forward Operational Base for the Nigerian Navy.
5. Other suitable reliefs.

The ruling which resulted in the present appeal was as a result of an application dated and filed on 21/1/2003 wherein the Plaintiffs/Appellants sought for the following reliefs against the Defendants/Respondents.

The reliefs are reproduced as follows:-
(1) An Order of interlocutory injunction restraining the 1st-4th Defendants, their servants, agents and/or privies from demanding and or receiving compensation and/or payments by whatever name called for the acquisition or in any manner whatsoever for any part of the Osain Land erroneously referred to as Beneboye land and in particular in respect of the acquisition by the Delta State Government through the 5th – 8th Defendants of the shore line up to the hinterland of the Osain and for the forward Operational Base for Nigeria Navy pending the determination of the substantive case.
(2) An Order of interlocutory injunction restraining the 5th – 8th Defendants, their servants, agents and/or privies from making any payment by whatever name called for the acquisitions of any part of the Osain Land erroneously referred to as Beneboye land to the 1st – 4th Defendants, their servants, agents and/or privies and in particular for the acquisition of the shoreline up to the hinterland of the forward Operational Base for Nigerian Navy.

The application was supported by a 36 paragraphs affidavit.
Pertinent paragraphs of the affidavit are paragraphs 1-34 reproduced as follows:-
“1. That I am the 1st Plaintiff/Applicant herein by virtue of which I am conversant with the facts of this case.
2. That I depose to this affidavit with the mandate and authority of the 2nd and 3rd Plaintiff and the entire members of the Ogulagha Community.
3. That the other plaintiffs and I have been authorized by the community to Commence and prosecute this action in a representative capacity and on behalf of the Ogulagha Community before this Honourable Court.
4. That a verifying affidavit by a member of the Ogulagha Community and the authorization by the Ogulagha community are annexed hereto as exhibits “A” and “B” respectively.
5. That the approval of the authorization granted to the 2nd and 3rd Plaintiffs and I is necessary hence this application.
6. That I know the places of 1st – 3rd Defendants in Warri and Ogulagha, however I do not know the exact members of their premises except the 4th Defendant who is a point man and one of the leaders of the Defendants and who I am sure will ultimately ensure that the processes reach all of them.
7. That the pieces and/or parcels of land which are the subject matter of the action, which pieces and/or parcels of land is called Osain land is well known to all the parties herein. The said Osain land is erroneously referred to as Beneboye land by the 5th – 8th Defendants herein. The said Osain land is situate within and is part of Ogulagha Community in Ogulagha, in Delta State of Nigeria within the jurisdiction of this honourable court.
8. That the aforementioned Osain land is but part of Plaintiffs’ larger expanse of land called Ogulagha lands which larger expanse of Ogulagha lands were conquered by Plaintiffs foremost ancestor, Ogula at a time beyond human memory.
9. That Ijo the founder of the Ijaw nation migrated with his children the most senior of whom were Gbaran and Ogula from Isreal through Ife, Benin, etc and to the Upper Niger Delta.
10. That whilst Gbaran settled in the Escravos river, Ogula the ancestor of the Plaintiffs settled by the Forcados river which river he (Ogula) named after himself. Both Gbaran and Ogula were first settlers in the aforementioned areas.
11. That after Ijo the founder of the Ijo of Ijaw nation left one of his sons called Gbaran at the Escravos river and another of his sons, Ogula or Gula at the Forcados river, Ijo left for the eastern region to a place called Agadagba Bou in Egbedi creek.
12. That most other founders of other Ijaw clans/communities, including Iduwini (m) who foundered Amatu in the present Bayelsa State, left Egbedi creek to found Amatu.
13.That Ogula sometimes called Gula or Goolah, after he was left behind by his father Ijo at the Forcados River which he named after himself he (Ogula) with his wives and children deforested the whole area around the said river. Ogula, his wives and children exercised maximum acts of ownership and possession over the entire areas around the said river. Ogula his wives and children built houses, fished in the said River and in the creeks around the river and farmed all the available lands.
14. That from the Forcados River Ogula and/or his descendants conquered and deforested the pieces and parcels of land herein before referred to and known as Osain land.
15. That Ogula and/or his descendants exercised maximum acts of ownership and dominion over the aforementioned Osain land. They fished the River and Creeks around the said land, farmed and at times leased parts of the said lands to companies and/or individuals.
16. That long after the Plaintiffs had settled in the aforementioned Osain lands ancestors of the 1st – 4th Defendants migrated from Amatu in the present Bayelsa State back to the Ogula territories founded by Ogula the son of Ijo who was left behind at the Forcados river when his father Ijo continued onwards to the eastern region and to Agadagba Bou in Egbedi Creek as earlier deposed in this affidavit. Iduwini (m) left Egbedi creek to found Amatu the same place from where the ancestors of the 1st – 3rd defendants stated their migration back to the territories including Ofougbene long founded by Ogula and his descendants.
17. That when the ancestors of the 1st – 4th Defendants also known as the Oborotru People came to the Ogula or Ogulagha territories they were initially permitted by the descendants of Ogula (plaintiffs herein) to settle of a place near the slave depot of the Ogulagha people. The said place is now called odimodi market.
18. That from the present day Odimodi market 1st – 4th Defendants ancestors moved to a place close to Forcados which place including Forcados had been founded by Plaintiffs ancestor’s Ogula.
19. That from the area near Forcados ancestors of the 1st – 4th Defendants as a result of incessant slave raids moved to Ofougbene which is also called Orusolmo.
20. That from the time the 1st – 4th Defendants ancestors stepped into Ofougbene other land founded by Plaintiffs’ ancestors they were welcomed by Plaintiffs ancestors who regarded them as brothers. Plaintiff ancestors permitted the 1st – 4th Defendants ancestors to settle with them as customary tenants but did not insist that they pay tributes to them in view of their common lineage to their foremost ancestor Ijo.
21. That with the passage of time the descendants of the 1st – 4th Defendants grew in number and wealth. Their population grew in Ofougbene and coupled with their wealth they forgot their status as tenants and/or strangers in Ogulagha land including Ofougbene and systematically started to lay claim of ownership over the Ofougbene land and ridiculously they have recently started laying claims to Osain land the subject matter of this action.
22. That as a matter of fact there is no member of the 1st – 4th Defendants’ community living in Osain. The 3rd Plaintiff is the chairman of Osain community.
23. That in or about the 9-01-20902(SIC) Plaintiff uncovered what must have been the best kept secret of the past decade, the acquisition by the Delta State Government through the 5th and 8th Defendants of the shoreline up to the hinterland of Osain Land of the Plaintiff.
24. That plaintiffs also learnt that the 1st – 4th Defendants claiming to be owners of Osain Land have applied to be paid compensation for the said acquisition.
25. That the payment of any sum of money to the 1st – 4th Defendants for the acquisition of any part of Osain land will be a declaration that persons who have no connection whatsoever to Plaintiffs Osain land have been declared owners of the said land.
26. That any such payment to the 1st – 4th Defendants will lead to an unimaginable up-heard in Osain community and in the communities surrounding it.
27. That no amount of money in this wide world will be sufficient to atone for the payments of any monies for Osain land to 1st – 4th Defendants who are not owners of the said land. The danger such wrong payment can pose to the security of lives and property is the main reason for this application.
28. That the information at the disposal of the Plaintiffs is that the payment for the said acquisition will be made by the 5th – 8th to the 1st – 4th Defendants in a matter of days.
29. That granting this application expeditiously is therefore in the interest of justice.
30. That plaintiffs in bringing this application have not been guilty of any delay. This application has been brought as soon as the secret plot to acquire our lands and pay compensation to the wrong persons was uncovered.
31. That greater justice will be done in granting this application than in refusing it.
32. That as earlier deposed to damages and indeed no amount of money can adequately compensate the plaintiffs of any payment made to the 1st – 4th Defendants. The injury that would be suffered by such payments is not quantifiable in monetary terms.
33. That the Defendants will suffer nothing if this application is granted as prayed.
34. That the plaintiffs are prepared to enter into an understating as to damages if it turns such that the application ought not to have been granted”.

In opposition to the application, the 2nd Respondent swore to 11 paragraphs affidavit, it is reproduced as follows:-
“1. I am the 2nd Defendant Respondent in the above named suit.

2. By virtue of my position, I am familiar with the facts of this case and I swear to this Counter Affidavit with the consent and authority of 1st set of Defendants/Respondents.

3. I have read and understood the affidavit deposed to by 1st Plaintiff/Applicant and I verily understand same.

4. Paragraphs 2, 3, 4, 5 and 6 of the affidavit in support of motion are denied and not relevant to this application.

5. Paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35 and 36 of the affidavit in support of the motion are denied. In answer to the said paragraphs 1st set of Defendants aver as follows:-
a. However 1st set of Defendants/Respondents are the undisputed bona fide owners of the piece or parcel of land in respect of which the 2nd set of Defendants/Respondents revoked all their rights of Occupancy as a result of which 2nd set of Defendants/Respondents intend to pay compensation thereof to us.
b. The traditional history as stated by the Plaintiffs/Applicants is a figment of imagination, blatant falsehood and most incorrect. The Plaintiffs are native of Ogulagha Community a place within the jurisdiction of this Honourable Court and they are customary tenants to the 1st set of Defendants herein.
c. The 1st set of Defendants ancestor is called Iduwini and he founded the Iduwini kingdom now spread between Delta and Bayelsa States along the coastal line. Idumini 1st set defendants’ ancestor first settled at Amatu which is known uptill today as traditional headquarters of Iduwini kingdom. Some of the descendants of Iduwini are Ela Ogbumu and Obori.
d. From the traditional headquarters of Amatu Ela Ogbumu and Obori three of the descendants of Iduwini founded Oborotu later known as Forcados. From there Oborotu people spread to found Burutu, Ofuogbene, Yeye and Ikeremo among others. In addition to the above, the Oborotu people whose main occupation is fishing established many seasonal fishing camps scattered around Oborotu territory including the present site occupied by Ogunlagha communities of plaintiffs which is but a part of the land founded by Iduwini and his descendants.
e. When slave trade was introduced, Forcados became one of the designated slave centres. Towards the end of the slave trade at about the second half of the eighteen century, a group of captured slaves from the Kroo tribe that were carried to Germany, were resold and were being conveyed to Europe in a ship. In the course of this movement, these captured slaves teamed up and overpowered their captors. They took control of the ship in an attempt to escape back to their home Liberia. Since they lacked good knowledge of steering ship, they lost their bearing and floated along the coast. They thus drifted without direction several days in the coast. At a point along the coast, the ship sank. Some lives were lost including all the properties. The survivors of the shipwreck walked along the shore until they came to the over side of Oborotu (Forcados). They called on the Oborotu people to ferry them across.
f. Considering the circumstances under which the plaintiffs were settled by 1st set of Defendants ancestors they were not asked to pay annual rent as Plaintiffs ancestors who own the very vast area of land regarded the Plaintiffs as part of their domain. However continued stay on 1st set of Defendants land was subject to good behavior and for them not to claim adverse title to that of 1st set of Defendants including subjecting themselves to the overlordship of their traditional Ruler. The above is the true traditional history of plaintiffs and 1st set of Defendants land which plaintiffs are shying away from.
g. The land referred as hereinbefore stated has been the property of 1st set of Defendants/Respondent from time immemorial. In the Colonial era some multinational Trading companies who came to 1st set of Defendants’ land entered into various agreements and treaties in respect of our land some of which are attached as Exhibits AA1 and AA2 respectively.
h. While these agreements were being signed Plaintiffs/Applicants respected and acknowledged our ownership of all the parcels of land including the Forcados Terminal part of which has been acquired for the Forward Operational Base (FOB for the Nigerian Navy).
i. Prior to when 2nd set of Defendants/Respondents decided to acquire our land for the FOB the entire Ijaw Nation knows that Forcados terminal belongs to us including the land of Plaintiffs/Applicants hence when the same was acquired in October 2001 there was no difficulty in knowing the true owners and there was no dispute when assessment of properties on the land was done with respect to the acquisition.
j. As a matter of fact all the clans including individuals on the coastal line of Niger Delta were aware of the moves by the 2nd set of Defendants/Respondents to acquire 1st set of Defendants/Respondents land for the Navy.
k. The 2nd set of Defendants/Respondents formally published in the Pointer Newspaper of Monday 22nd October, 2001 the Revocation of Right of Occupancy and compensation thereat pursuant to S.28 of the Land Use Act of 1978. In the said publication signed by His Excellency Chief James O Ibori the Executive Governor of Delta State, members of the public claiming any interest in the said land were given up to six weeks to give statement of interest and that no claim will be entertained after 12 months from the date of publication.
Pointer Newspaper is the State Government owned Newspaper circulating throughout the State and the said copy is attached herein and marked Exhibit “AA3”.
l. Pursuant to Exhibit “AA3” whose copies were posted severally at the Burutu Local Government Council Secretarial 1st set of Defendants duly made claims for the acquisition from 2nd set of Defendants/Respondents. Plaintiffs/Applicants visit the Secretariat regularly and some of their members work there including the circulation of the paper in the entire Local Government Area and therefore were fully aware of Exhibit “AA3”.
m. Plaintiffs/Applicants did not make any claim or indicate their interest on the land acquired as they know that they do not own an inch of the land acquired.
n. The Plaintiffs/Applicants since the institution of Suit NO. HCB/5/2002 against them by 1st set of Defendants Respondents to stop them from installing a Traditional Ruler on land of 1st set of Defendants/Respondents that they decided to make spurious claims meant to cover up their past by the institution of Suit NO. HCB/10/2002 against 1st set of Defendants/Respondents alleging for the first time in their history that 1st set Defendants/Respondents are their Tenants. A copy of the Writ is attached and marked as Exhibit “AA4″.

6. 1st set of Defendants/Respondents will at the hearing of this motion contend that the action is statute barred an abuse of Court process and that damages can adequately compensate them if in the unlikely event they are successful in the substantive case.

7. I know that this suit is a spoiler effect to deprive our Community the compensation we are entitled to as a result of the acquisition and knowing very well the delays in the administration of Justice, this case may not end in the next two to three decades.

8.The 1st set of Defendants/Respondents need urgently the compensation money to be paid by 2nd set of Defendants/Respondents to enable us develop our Community so that our youths can be gainfully employed and as halt to youth restiveness in the area.

9. In anticipation of the money to be paid and adequate arrangement for the utilization of the money for the benefit of all particularly the youths tension is becoming very high in the community likely to result in bloody bath if this money is withheld as a result of the granting of this application. We have been prevailing on members of the Community not to take the laws into their hands hence there has been calm with the great expectation of this application being thrown out.

10. I undertake on behalf of Defendants/Respondents Community to enter into bond to repay whatever is paid to us with interest in the unlikely event of this suit being successful.

11. This action and the application is a ruse to stop payment to us since Plaintiffs/Applicants have no interest in the land acquired and deprive us the benefit of our rights having given up the land for overriding public interest”.

The Appellants, in response to the Counter affidavit of 1st to 4th Respondents, filed a reply to Counter Affidavit of 15 paragraphs.

Pertinent paragraphs of the said reply to counter affidavit are paragraphs 3-11 reproduced as follows:-
“3. That have read and I verily understand the 1st – 4th Defendants/Respondents counter affidavit filed on the 25-7-2003.
4. That paragraphs 2, 5a, 5b, 5c, 5d, 5e, 5f, 5g, 5h, 5i, 5j, 5k, 5l, 5m, 5n, 6, 7, 8, 9, 10, 11 and 12 of the said counter affidavit are denied as false.
5. That Plaintiffs claim in the main, especially by the first relief in the writ of summons filed on the 21-1-2003 is for declaration of title that we (Plaintiffs) and not the 1st – 4th Defendants are owners of Osain land.
6. That the said claim for declaration of title to Osain land is the gravamen of our case.
7. That the traditional history and claim of ownership to the land in dispute by the 1st – 4th Defendants is false and actuated by the sole desire to receive compensation from Government for the acquisition of parts of the said land.
8. That the publication referred to in paragraph 5k of the said counter affidavit was not seen by me or any principal members of Plaintiffs Community to enable plaintiffs react to same.
9. That it is not correct as alleged in paragraph 5L of the said counter affidavit that copies of exhibit “AA3″ were pasted at the Secretariat of the Burutu Local Government Council.
10. That as correctly stated in exhibit AA4 1st-4th Defendants are tenants of Plaintiffs and it will be the greatest injustice imaginable for them to receive compensation in respect of land belonging to the Plaintiffs herein.
11. That the averment of the 1st-4th Defendants in paragraph 9 of the said counter affidavit is a brazen act of blackmail of this Honourable Court which, with respect, must be resisted by this Honourable Court”.

The Learned Counsel for the Appellant formulated a sole issue for the determination of the appeal. The issues is reproduced as follows:-
“Whether the dismissal of the Appellants’ application for interlocutory injunction is in accord with the principle of law and the facts as disclosed in the affidavit evidence before the court”.

On the other hand, the Learned Counsel for the Respondent also formulated a lone issue for the determination of the appeal.
The said issue is reproduced as follows:-
“Whether the learned trial Judge was right in dismissing the Plaintiffs/Applicants motion for interlocutory injunction dated 21/1/2003 in the face of the affidavit evidence before the Honourable court”.

At the hearing, the Learned Counsel for the Appellants stated that the appeal is interlocutory, and that the Ruling appealed against was delivered on 9/12/2004.

The Appellants compiled the record of appeal pursuant to the order of this court and the record of appeal was deemed as properly filed and served on 6/6/2013.

The Learned Counsel for the Appellants referred to the Appellants’ brief of argument which he said was deemed as properly filed and served on 6/12/2013.

He adopted the said Appellants’ brief of argument and he relied on it in urging that the appeal be allowed. He prayed that the orders made by the Lower Court be set aside and then grant an order of injunction prayed for by the Appellants.

Since Counsel for the 1st-4th and 5th to 8th Respondents were duly served with hearing notices about the hearing date and Counsel for the 1st to 4th Respondents have filed their brief of argument, pursuant to Order 18 Rule 9(4) of the Court of Appeal Rules 2011, the appeal was taken as duly argued.

I have carefully examined the issues as formulated on behalf of Counsel for the parties, the issues are similar. However, I will rely on the issue formulated for determination of the appeal by the Appellants.

SOLE ISSUE FOR DETERMINATION OF THE APPEAL
“Whether the dismissal of the Appellants’ application for interlocutory injunction is in accord with the principles of law and the facts as disclosed in the affidavit evidence before the court. (Distilled from Grounds 1, 2 & 3)”.

The Learned Counsel for the Appellants submitted that the principles that guides the courts in the consideration of whether to grant an application for interlocutory injunction are well settled. He went further in his submissions that an interlocutory injunction is granted for two main reasons.
(1) To maintain the status quo ante litis i.e. the position of the parties before litigation was commenced and thereby preserve the “res” of the subject matter of the litigation, and
(2) To restrain a threatened breach of ones right or destruction of property. He relied on the following cases:-
– Metro Gas Ltd Vs Eferakeya (2001) FWLR Part 39 Page 1442 at Page 1454 paragraphs F – H
– Adenuga Vs Odumeru (2001) FWLR Part 37 page 1056 at 1069 Paragraphs E – F

He went further in his submissions that courts are guided in granting interlocutory injunction by the principle enunciated in the following cases:-
– Egbe Vs Onogun (1972) ALL NLR (Reprint) page 99
– Kotoye Vs CBN (1989) ALL NLR (Reprint) Page 78.

The Learned Counsel for the Appellants stated that the status quo ante litis in this case was that the Appellants as Plaintiffs instituted an action against the Respondents as Defendants at the Lower Court. He went further that as at the time the action was filed, there was acquisition by Delta State Government on behalf of the Federal Government in respect of part of the land in dispute referred to as OSAIN LAND.

The Appellants claim was that by virtue of their ownership of the entire OSAIN LAND they are the persons entitled to receive any compensation for acquisition of any part of the OSAIN LAND.

He stated further that the application of 1st to 4th Respondents to be paid compensation is a challenge to the Appellants’ ownership of the entire OSAIN LAND. As of now, no compensation had been paid by 5th to 8th Respondents who acquired part of the OSAIN LAND on behalf of the Federal Government.

The Learned Counsel for the Appellants submitted that the “res” to be preserved is payment in respect of acquisition of part of the land, the ownership of which is in dispute.

He submitted further that whilst it is true that the Appellants are not challenging the acquisition of the land by Government, they within their rights claiming that they are from time immemorial according to Ijaw native law and custom the owners of the entire land, inclusive of part of the land acquired.

He finally submitted that granting the Appellants application by the Lower Court would have met the justice of this case.

He then urged this court to allow the appeal by setting aside the ruling of the Lower Court and in its place grant the orders of injunction prayed for by the Appellants.

The Learned Counsel for the 1st to 4th Respondents in his own response submitted that interlocutory injunction is not granted as a matter of course or for the asking but rather the Appellants must satisfy the conditions as laid down by authorities.

He submitted that the Appellants have failed to satisfy any of the conditions for grant of interlocutory injunction as decided in the case of -KOTOYE VS CBN (Supra).

He went further in his submission that this court in consideration of the appeal will have to consider:-
(1) Balance of Convenience
(2) Adequacy of Damages
(3) The Conduct of the Appellants

It was also contended on behalf of the Respondents that the Appellants having not submitted any claim and not expecting anything have resolved to frustrate the 1st to 4th Respondents who made claims and are expecting to be paid the compensation.

Learned Counsel finally urged this court to uphold the Ruling of the trial court dated 9/12/2006 and dismiss the appeal.

In view of the principles enunciated above, I will now consider the relevant parts of the affidavits placed by the parties before the trial court in order to determine whether the dismissal of the application for interlocutory injunction is in accord with the principles of law and facts disclosed.

The first question to be asked is that:- Has the Appellants showed any right which was infringed upon?

Both the Appellants and the Respondents in their affidavits in support and against the application agreed that Delta State Government acquired the disputed parcel of land for the Forward Operational Base for Nigerian Navy. By the acquisition of the land, the right of individual or communities over the land is extinguished and the proved owners would be entitled to compensation at the end of the day in respect of crops and other properties on the land at the time of acquisition.

A careful reading of the affidavit in support of the application would reveal that apart from giving traditional narration of how the Appellants’ forefathers got to the land in dispute, the Appellants did not submit any claim for compensation and the Appellants’ properties were not assessed for the purpose of payment of compensation.

Also on the issue of balance of convenience, one fact remain undisputed and it is that the Delta State Government acquired the land in dispute. The Respondents responded to the Delta State Government’s advert in the Pointer Newspaper of 22/10/2001 by submitting statement of interest, but the Appellants did not submit any claim over the land in dispute. With the Appellants refusal to submit a claim to the Delta State Government, I am of the view that the Appellants’ have nothing to lose, on the other hand the Respondents responded promptly to the advert of the Delta State Government by submitting claims.

The Learned trial Judge appreciated the position of the Respondents when he held among others as follows:-
“On the affidavit evidence before me when the Delta State Government acquired and revoked the right of occupancy over the land in October 2001, it called for claimants to put in their claims for compensation within 6 weeks. The 1st to 4th Respondents put in their claim for compensation. The applicants did not. The applicants paragraph 28 of the supporting affidavit deposed that from the information at their disposal payment for the said acquisition will be made by the 5th to 8th Defendants to the 1st to 4th Defendants in a matter of days. Now, if the order of injunction is made the 1st to 4th Defendants will be denied and which they say they will use to develop their community so that the youths can be gainfully employed to halt the restiveness in the area. If the application is refused the applicants who did not put in any claim for compensation and were therefore not expecting anything will not lose anything. The position would have been different if the 5th – 8th Defendants had rival claim from the Applicants and the 1st to 4th Defendants to consider, I hold that maintaining the status quo in the circumstance will not meet the justice of the case. The 1st to 4th Defendants will suffer more inconveniences if this application is granted then the Applicants will suffer if the application is refused”.

The prompt response of the Respondents to the Delta State Government request for claimants showed that it is the Respondents who will suffer more if the application is granted.

I am therefore of the view that the balance of convenience is in favour of the 1st – 4th Respondents.

On inadequacy of damages, I agree with the submission of Counsel for the Respondents that the Appellants have not shown in their affidavit evidence how damages will not assuage their inconvenience which is monetary.

When the application is considered from the angle of delay on the part of the Appellants in coming up with a claim to the Delta State Government, it showed that their delay has defeated the purpose of the application.

The affidavits before the court showed that the Delta State Government acquired the land in dispute for the Nigerian Navy in 2001 and it was published on 22/10/2001 in the Pointer Newspaper calling for claimants to forward their claims to Delta State Government within 6 weeks from the date of publication. Although the Appellants claimed that they were not aware of the publication.

In my humble view, if the Appellants are not aware of the publication, their tenants ought to be aware from whichever angle this issue is looked at, the Appellants are guilty of delay in acting promptly by submitting their claims or interest to the Delta State Government.

Consequent upon the foregoing, I am of the view that the Appellants have not satisfied the legal conditions for the grant of interlocutory injunction.

This lone issue is therefore resolved in favour of the Respondents and against the Appellants.

In the final analysis, the Ruling of the trial court delivered on 9/12/2004 is hereby affirmed.

In conclusion, I am of the view that this appeal lacks merit and it is hereby dismissed.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I have had the privilege of reading, before now, the judgment just delivered by my learned brother, the Hon. Justice J.O. Bada, JCA. I concur with the reasoning and conclusion reached therein, to the effect that the instant appeal is devoid of merits.

Hence, having adopted the said reasoning and conclusion as mine, I too hereby dismiss the appeal for lacking in merits. Consequently, the ruling delivered by the High Court of Delta State, Otu Jeremi, delivered on 09/12/2004 by A.A. Onojovwo, J; is hereby affirmed by me.

HAMMA AKAWU BARKA, J.C.A.: I had a preview of the judgment just delivered by my Lord the Hon. JIMI OLUKAYODE BADA, JCA. I entirely agree with his reasoning and the conclusions reached to the effect that the appeal is lacking in merit and is hereby dismissed by me.

I will in consequence thereof affirm the ruling of the lower court delivered on the 9/12/2004.

Appearances

Sir. V. E. Akpoguma with him are Lady Abiodun O. Akpoguma and E. A. AkpogumaFor Appellant

AND

No Legal Representation for the Respondents.For Respondent