OBA ABDULLAHI OKUNLOYE AGUNLOYE II & ORS v. ALHAJI TAJUDEEN ADEDAPO & ANOR
(2018)LCN/12250(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of December, 2018
CA/AK/116/2012
RATIO
COURT AND PROCEDURE: WHETHER THE COURT CAN GRANT INJUNCTION AGAINST THIRD PARTY
“The law is that a party litigant in the face of a suit cannot proceed to deal with the Lis at will as if it did not matter that a situation of helplessness may be foisted on the Court of trial and thus render the suit ineffective. There are also cases where a Court will grant injunction, against a 3rd party. The 3rd parties alluded to by the Appellants must be persons abetting or aiding the interference with the subject of the pending suit. An order of interlocutory injunction against such persons unnamed and unnumbered cannot be wrong in law. See Habbard V. Woodfield (1913) 75 50150 729.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
EVIDENCE: WHERE THE APPLICANT HAS DEPOSED IN AFFIDAVIT
“It is settled that once an applicant deposed in the affidavit in support of the application that he undertakes to pay damages, the necessity for the Court to extract an undertaking in damages will not arise. See Onyesoh V. Nnebedun (1992) 2 NWLR (Pt. 229) 315. Where Nnameka-Agu clarified the position of the law, referring to Kotoye V. CBN (1989) 1 NWLR (Pt. 98) 419, at 450.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
1. OBA ABDULLAHI OKUNLOYE AGUNLOYE II
(the Olofa of Offatedo)
2. CHIEF LASISI IWALOYE
BABA KEKERE OF OFFATEDO
(For themselves and on behalf of Offatedo people)
3. ENGINEER BAMIDURO
(for himself and on behalf of the House Owners of Olofa Estate Offatedo) Appellant(s)
AND
1. ALHAJI TAJUDEEN ADEDAPO
(OLUDO OF IDO-OSUN)
2. MR. JOSHUA ADEBIYI Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Ruling of the High Court of Osun State of Nigeria, holden at Ede, Osun State in Suit No. HED/05/07 delivered September, 2011
The Appellants filed a Brief of Argument of 16/10/16 deemed filed and served 29/2/16 and without the Respondents filing any Brief of Argument.
It is clear that this is an interlocutory appeal against the interlocutory order of injunction as granted by the learned trial Judge on the 27th of September, 2011 in a case still pending wherein the Appellant had made substantial claims relating to chieftaincy status/rights and ownership/dealings in land as between the parties and with anchor sought on subsisting decisions of the Supreme Court of Nigeria.
Be that as it may, the appeal argued upon the Appellants’ Brief of Argument alone as filed on 16/10/12 and deemed on 29/2/16 having been so granted leave on 6/12/17, (Respondent having failed/neglected to file any Brief of Argument) articulates two (2) issues for determination from the 2 Grounds of Appeal found at pages 151 – 153 of the Record of Appeal.
The Grounds are reproduced verbatim thus; for clarity.
1. The learned trial judge erred in law when he held that the 2nd applicant has established a valid legal right warranting the granting of the Defendants’ application for interlocutory injunction against the Plaintiffs.
2. The learned trial judge erred in law when he granted the Defendants’ application for interlocutory injunction when they did not satisfy the conditions to warrant the grant of same.
The issues articulated are these:
1. Whether or not the Defendants (hereinafter called the Defendant/Respondents did show a legal right to entitle them to an Order of interlocutory injunction (see Ground 1 of the Appeal).
2. Whether or not the Defendants/Respondents have satisfied all the grant of an Order of interlocutory injunction having regard to the application itself and the surrounding circumstances of the case. See Ground 2 of the Appeal.
ARGUMENT ON ISSUE 1
Arguing Issue one it was contended that the grant of interlocutory injunction is a discretionary remedy granted only upon the consideration of the facts and peculiar circumstances of each case juxtaposed with established principles of law. Learned Counsel contended that it is the fact of the juxtaposition of the principles of law upon which such relief is granted with the peculiar circumstances of each case before arriving at a decision that it is referred to as a discretionary remedy; that it is for the above reason that the discretionary power has to be exercised judicially and judiciously.Udo V. ITC MEC (2010) ALL FWLR (Pt. 507) P. 88 Court of Appeal relied upon.
Learned Counsel conceded that the trial Court realised this fact in his Ruling but only paid lip service to it as the ownership of the land had been put to rest per the decision of the Supreme Court in Appeal No. SC/47/1970 between the Timi of Ede and the Oludo of Odo-Osun, who is 1st Respondent and prescribed Authority over Ofetedo Chieftaincy and 2nd Respondent a house owner. That Plaintiffs/Appellants are privies of the Timi Ede.
The Learned Counsel contended that since the Respondents as Defendants were not making any claim to land by a counter claim but only defending the Plaintiffs/Appellants? claim to the land, they could not have asked nor be validly granted an order of interlocutory injunction, as no legal right can be shown.
It was contended that by the Supreme Court Judgment earlier referred to, the 1st Respondent cannot give what he did not have to the 2nd Respondent. Alibe V. Yaro (2002) FWLR Pt. 793; Mohammed V. Klargester Nig. Ltd (2002) FWLR (Pt. 27) 1078. That it was against the Rule of public policy to seek to take through the back door what they have been declared to be disentitled to by the Supreme Court. Uwosu V. Udeaja (1990) NWLR (Pt. 125) 188. That the Respondents were not shown at the trial to be in possession nor the owner of land allegedly trespassed upon and no legal right therefore proved. Gambari V. Buhari (2009) All FWLR (Pt. 479) 458 Relied on.
It was contended that the Applicant/Defendants who are Respondents now had by their paragraph 4 (v) – (viii) of statement of defence admitted the Plaintiffs/Appellants’ claim and more strangely that despite the Supreme Court decision and the survey plan of the land subject of judgment, the trial Court proceeded as it did. That there was no legal right in the Respondents. M & B Electrical Co. Ltd V. Govt. Of Cross River State (2005) All FWLR (Pt. 284) 350, 367 F – G; JFS Investment Ltd V. BRAWAL Line Ltd (2011) ALL FWLR (Pt. 578) 867, 899F.
ISSUE TWO
On the issue Two, it was contended that a Court hearing an application at this stage must be circumspect to ensure that the substantive matter is not prejudiced. It was further reiterated that the following conditions must be established thus:
That relating to the subsistence of an action, there was, but not one filed by the Respondents/Appellant; that the Respondents are not counter claiming but only defending. That they were only defending the propriety of the action of the 1st Respondent creating a brand new chieftaincy and installing an alien (non native) and an ordinary house owner over a land the Supreme Court has laboured to pronounce 1st Respondent as not the owner.
That the application granted was parasitic upon the Appellant’s action. Learned Counsel contended that the Court of law was for the aggrieved and not for the satisfied and that it is for the aggrieved to ask for a interlocutory injunction pending the determination of the suit. Learned Counsel contended that a temporary relief cannot be asked or made in vacuo of a subsisting action which is the conveyor of the complaint of the Plaintiffs.
Counsel contends that the Court was bound by the Plaintiffs claims, which determines the jurisdiction of the Court and not the Defendant’s defence to the action Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) 166.
That no legal right in the Respondents/Defendants had been proved, as the 2nd Respondent had only asserted a right of possession granted by 1st Respondent appointment of him as king, and his 3 plots granted by the Timi of Ede of the Appellant’s side, Counsel acknowledges at paragraph 414 of page 13 of his Appellant’s Brief that the 2nd Respondent was in possession of his 3 plots of land and was asserting that right of possession by his appointment as king.
On the existence of a real Issue to be tried as one of the conditions for the grant of an interlocutory injunction, it was argued that there was none as it had being settled by the Supreme Court in Appeal No. SC/47/70. That there was no undertaking as to the payment of damages nor was there urgency over the res or subject matter of the dispute. That the suit had been pending since 2007 and Respondents filed no application for injunction and more so that 1st and 2nd Appellants have been selling lands to different purchasers over the years, even before 2nd Respondent was purportedly made king in 2007 and did nothing. That what was sought to be restrained had already been done as 1st and 2nd Respondent sold lands to people already in occupation, including the 3rd Appellant who has been in occupation over 10 years.
That where a discretion is not exercised judicially, it should be set aside, so as not to ridicule the Justice and bring it to disrepute and contempt.
The Learned Counsel complained against the trial Judge delving into the substantive matter in his Ruling, which is appealed. That reference made and argument based on the decision of the Supreme Court in SC/47/70 was not recorded nor averted to and that it was probably by oversight of the trial Court. That reference ought have been made to it suo motu. SeeFumudoh V. Aboro (1991) 9 NWLR (Pt. 214) 210 on reference to any necessary document in the Court?s file, as the Defendants even made it part of their case.
It was contended that the grant of interlocutory injunction was over an uncertain i.e. unspecified portion of land and against the balance of convenience as the Appellants and many other persons not parties but restrained had properties and were in occupation of houses in the land.
A careful perusal of the two Issues argued above, shows that the said two Issues can be subsumed into one Issue thus; whether the trial Court had not exercised his discretion judicially and judiciously such that an Appellate Court (this Court) should set it aside and allow the appeal against its grant in the circumstances.
The fact is settled that there is a pending suit by the Appellant which was instituted vide a writ of summons taken out on 19-3-07 though dated 16-3-07. The statement of claim thereon was filed since 13-2-09 and a long interregnum 2 years; culminated into a motion for the dismissal of the suit as on grounds of jurisdiction. The challenge failed on 26th June 2008; hence the motion granting the order of injunction now appealed, was filed.
It is trite as conceded and contended by the Learned Counsel for the Appellant that it is not the attitude of an Appellate Court to substitute its views for that of the trial Court in matters of exercise of discretion, but if the discretion is not exercised judicially and judiciously, especially discretion that is exercised in affront to established facts, law and reason, it will interfere.
Now, what were the established facts, law and reason in the circumstances of this appeal? The Appellant would appear to heavily take the special circumstances to be the decision of the Supreme Court in SC/47/70 granting over Lordship and title to the Plaintiff/Appellant’s predecessor in title over land said to encapsulate the land, being the subject of litigation and settled/occupied by Defendants/Respondents and other persons as in an Estate of tenants who claim right of Occupation as ?secured? customary tenants with Rulership recognised but subject to the sovereignty of the Appellant who has a reversion any title only upon misconduct of the Respondents. The Appellant contends that the parcel of land the subject of interlocutory order of injunction was not defined; There is no gainsaying that the parties were ad idem as to the identity of the land, as the Appellant’s Counter Affidavit and Counsel’s address show that the land is that settled on by the Respondents and the subject of the decisions of the High Court of Osun and the Supreme Court in SC/47/70. The identity of the land was/is not in doubt.
Next, the Appellants contended that the decision of the trial Court made no reference to the decision of the Supreme Court. Again, it is plain that the decision was not yet led in evidence at the state of the application for the injunction complained of. A decision of a Court can only be proved by tendering the certified copy thereof and this not having been done, there was no obligation on the Court at that stage to have resort to it by its investigative frolic of discovery to come to a solemn decision in an application that was interim and which ought not to delve into the merit of the substantive suit, at the hearing of which both or either party may tender same and lead evidence that could link the Judgment to the merit or otherwise of the contending claim and Defence led.
The Learned Appellant Counsel had contended that injunction was awardable only at the instance of a person in occupation of the disputed property.
It may well be; Here the 2nd Defendant/Respondent is admitted to be in possession of some plots of land and that the 1st Respondent as Defendant had so appointed the 2nd on the basis of a limited authority conferred on the 1st Respondent by the Appellant.
The Learned Counsel for the Appellant had contended that the balance of convenience was in favour of the Appellant. For being in possession and in the face of the threats to destruction and invasion of their possessory rights as claimed, the Defendants/Respondents were entitled to an order of interlocutory injunction against all save the person who proves a better title. In Udo V. ITC MEC (2010) All FWLR Pt. 507, 102 supra, this Court held that a person can sue for injunction for trespass if he is in possession. The Appellant who had not as yet proved in law that they were in occupation, had been confronted with the application of the Respondents who were in occupation physically and through agents/tenants and servants. Will they fold their arms and watch violation Viet arms of their undisturbed and quite right of occupation?
The 1st Defendant, even by the submission in concession by Appellant’s Counsel is the prescribed authority over Offatedo. See 1st paragraph of page 17 of Appellant’s Brief of Argument.
The problem is not whether Olofa Estate is part of Offatedo land, but whether, the Respondents in possession should not be disturbed in the use and enjoyment of their occupation pending the determination of the claim by the Appellant. In UDO Vs ITC MEC 2010 ALL FWLR (Pt 507) P. 88 cited by the Appellant, this Court held, thus;
“Interlocutory injunction is concerned principally with the protection of the res and maintaining the status quo. It is only where the subject matter will be permanently destroyed and cannot be recovered or replaced or be completely distorted or defaced that an order of interlocutory injunction will be appropriate to maintain the status quo until the final determination of the substantive suit. The status quo to be maintained by the grant of an order of interlocutory injunction is the status quo ante bellum i.e. the state of affairs before the beginning of hostilities and not status quo ante litem, which is, the state of affairs before the parties began to litigate.
In Adewale v. Gov., Ekiti State (2007) ALL FWLR (Pt. 383) 130, (2007) 2NWLR (Pt. 1019) 634. It was held inter alia, that where litigation immediately follows peaceable or peaceful state of affairs or status, the status quo to be maintained by an order of interlocutory injunction is that peaceful state or status before the litigation. But where such state has been disturbed or interfered with, resulting in a law suit, the status quo is not the unlawfully created one immediately preceding the suit, but the original peaceable or peaceful state or status before it was apparently unlawfully altered.
It is imperative to appreciate that the onus of proof is on the applicant to establish that on the affidavit evidence presented by him, it is in the interest of justice in his case and it is desirable in all the circumstances of the case that the interlocutory injunction being sought by him be issued.”
The above case supports the position of the Respondent squarely, in the circumstances of this case.
The other factor to consider in an application for interlocutory injunction is to maintain the status quo. See Adewale V. Ekiti State (2007) All FWLR (Pt. 383) 130; (2007) 2 NWLR (Pt. 1099) 634; in this appeal, the status quo before the suit was the peaceful stay on the land in contention as Offa Estate and environs in Effedato before the Suit (litigation) leading to the application for injunction granted; that is the reason for this appeal. One of the conditions usually considered in the grant of an interlocutory injunction is the extraction of an undertaking to pay Damages and the urgency of the matter. Appellants’ Counsel states that the Appellants have been selling land to different purchasers over the years ever before the 2nd Respondent was purportedly made a king in 2007; that the suit had been pending since 2007 and no such application was made.
That there was delay on the part of the Respondent/Applicants; and that the balance of convenience was in favour of the Appellants and third parties already settled on the land.
It is settled that once an applicant deposed in the affidavit in support of the application that he undertakes to pay damages, the necessity for the Court to extract an undertaking in damages will not arise. See Onyesoh V. Nnebedun (1992) 2 NWLR (Pt. 229) 315.
Where Nnameka-Agu clarified the position of the law, referring to Kotoye V. CBN (1989) 1 NWLR (Pt. 98) 419, at 450.
In the aforesaid case of Onyesoh Vs Nnebedun (supra), it was clarified thus ?I wish to point out straight away that although, as I stated in Kotoye V. Central Bank of Nigeria & Ors (1989) 1 NWLR (Pt. 98) 419 at P. 450, an undertaking as to damages is the price which every applicant for an interlocutory injunction has to pay for it and that, save in recognised exceptions, it ought not to be granted if no undertaking has been given, it is putting the consequences of the failure to give the undertaken too high to say, as the Learned Senior Advocate for the Appellant has stated in his brief, that rendered the order incompetent. A similar contention was rejected at page 451 of Kotoye?s case (Supra). The true position is that it renders the order liable to be set aside. Whether it will be set aside in any case will depend upon the facts of the particular case?. See at page 344 ? 345 of the report.
Where Damages will not adequately compensate a Claimant for injunction, an undertaken to damages may be made and the order may be granted. See Afe Babalola, SAN on Injunctions and Enforcement of Orders Page 94 (a), Obafemi Awolowo University Press Ltd, Ile Ife 1st Edition (2000) Reprinted (2002), 2003.
It is instructive that by paragraph 15 of the Supporting Affidavit to the motion as found on pages 104 – 105, the Applicant/Respondent avers an undertaking to pay damages thus:
15. The Plaintiffs are ready to enter into an undertaking for damages with this honourable Court if the Court discovers that it ought not to have made the order in the first instance.
The above knocks off the argument on the ground of law made on that score against the order. As for the urgency of the matter necessitating the order, the Affidavit of urgency and the Exhibits alleging destruction and threat to lives and the subject property even before the hearing of the suit are evident from pages 104 – 113 of the Record of Appeal.
The Appellant by their submissions of Counsel admitted selling and dealing in the lands in respect of which they had sued and now claims that third party interests/rights had been created such that interlocutory order of injunction against them was wrongful, they not being parties.
The law is that a party litigant in the face of a suit cannot proceed to deal with the Lis at will as if it did not matter that a situation of helplessness may be foisted on the Court of trial and thus render the suit ineffective. There are also cases where a Court will grant injunction, against a 3rd party. The 3rd parties alluded to by the Appellants must be persons abetting or aiding the interference with the subject of the pending suit.
An order of interlocutory injunction against such persons unnamed and unnumbered cannot be wrong in law. See Habbard V. Woodfield (1913) 75 50150 729.
The Appellant had also contended that the Respondent as Applicant could not have sought and be entitled to an order of injunction, since he had filed no claim nor counter claim; that this lacuna operated against the Ruling given in his favour.
The law is that a defendant may be granted interlocutory injunction even where he has not filed a counter claim or given Notice of same. In cases where the application is connected with the purpose of the Plaintiff’s action or relief sought by the defendant arises out of the relief sought by the Plaintiff, the order of interlocutory injunction may be made. See Praying Band of C & S v. Udokwu (1991) 3 NWLR (Pt. 182) 719 at 720.
The above put paid to the contention that the Respondents had filed no claim nor made any counter claim, thus further negating the heresy in the reasoning that the Courts are for complainants who have filed a claim to ask for interlocutory order of injunction and not for a Defendant. Either party, be he a Claimant/Plaintiff or Defendant as Respondents herein has the legal right nay constitutional right to seek an interim order or invoke the judicial power of the Court in the interest of Justice. Section 6 (6) (a) of the 1999 Constitution on the plenitude of judicial powers refers.
The situation as inOkechukwu V. Okechukwu (1989) NWLR Pt. 108 P. 234 where an ex-parte order of injunction was set aside on the appeal of the Plaintiff was based on the ground of want of proof of extreme urgency by the Defendant/Applicant and more so the Plaintiff was available to be put on Notice. See Nig. Cement Co. Ltd V. NRC (1992) 1 NWLR (Pt. 220) P. 747 at 760.
On the whole, and considering that the substantive suit is still pending and not only being delayed and considering that the interlocutory order of injunction is tied to the said suit that claims as declaration No. 2, as to the alienation of a dispute land popularly called Olofa Estate, Offatedo land exclusively against the Defendants/Respondent and incidental or Consequential Declarations therefrom, I do not see how the trial Court erred in the exercise of his undoubted discretion to maintain the status quo in the interest of justice, pending the hearing and determination of the substantive suit. It is however, right that the substantive case be not delved into prejudicially as contended by B. A. Akande, ESQ on behalf of the Appellants.
The discretionary jurisdiction of the trial Court has not been shown to have been wrongly invoked. Indeed it was judicially and judiciously invoked in the circumstance. The judex will do justice even where no letters of the law provides as long as a right and threatened violation nay actual violation has been proved; Ubi jus ibi remedium.
The further prolongation and protraction caused by the instant appeal would have seen the substantive case on the hearing path on its merit. I order that the hearing of the substantive suit be accelerated at the trial Court.
Appeal is dismissed for want of merit.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the advantage of reading before now the judgment just delivered by my learned brother: Mohammed A. Danjuma, JCA, in draft. His lordship dealt with the issues involved exhaustively and I have nothing useful to add. I entirely agree with the reasoning and conclusion marshaled therein that the appeal lacks merit and should be dismissed.
I shall also dismiss the appeal. Appeal dismissed. I also abide by the consequential orders made in the lead judgment.
PATRICIA AJUMA MAHMOUD, J.C.A.: This appeal is against an order of interlocutory injunction granted by the Court below. A grant of the application is premised on the exercise of the Court’s discretion. There are two main principles that guide this Court in considering the exercise of discretion of the Court below:
1) This Court is always slow to interfere;
2) It will not substitute its view with that of the trial Court.
These twin principles were brought out quite clearly in the decision of this Court in the case of DIAMOND BANK PLC V. SLIMPOT NIG. LTD (2016) LPELR 41612 where it was held that while an appellate Court will be “quite loath” in interfering with the exercise of discretion of the trial Court or to substitute its own discretion for that of the trial Court, it would not hesitate to do so where it is shown that a miscarriage of justice has been occasioned from such exercise of discretion.
The appellant herein has not shown in any way that the exercise of the Court’s discretion in granting the order of interlocutory injunction has occasioned a miscarriage of justice to him. I am therefore in agreement with my learned brother, MOHAMMED A. DANNMA, JCA in the lead judgment that there is no merit in this appeal. There is no firm footing to tinker with the judicious and judicial exercise of the lower Court’s discretion in the circumstances. I do dismiss this appeal.
Appearances:
B. A. Akande,Esq. prepared the Brief of Argument which was argued by Nain Adekilekun, Esq.For Appellant(s)
Respondent filed no Brief of Argument and not represented at the hearing; but served hearing Notices on their Counsel Olatoye Aminu, Esq.For Respondent(s)
