AKPAN v. NNAH & ORS
(2022)LCN/16162(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Wednesday, March 30, 2022
CA/C/277/2017
Before Our Lordships:
Raphael Chikwe Agbo Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Between
1. ANWANA-ABASI UDO AKPAN APPELANT(S)
And
1. REV. EDET UDO AKPAN NNAH 2. UWEM UDO AKPAN NNAH 3. IME UDO AKPAN NNAH 4. UNWANA EFFIONG UDO AKPAN NNAH 5. NDUKE OBONG EFFIONG UDO AKPAN NNAH RESPONDENT(S)
RATIO
THE POSITION OF LAW ON INTERLOCUTORY INJUNCTION
Interlocutory injunction is an equitable remedy available to an applicant whose purpose is to protect the res, the subject matter of litigation pending the determination of the dispute regarding it. The order keeps the matter in status quo ante bellum, i.e. the position the parties were before the hostility started. See EDOSOMWAN VS. EREBOR (2001) 13 NWLR (PT. 730) 265 (CA) and ORJI VS. ZARIA IND. LTD (1992) 1 NWLR (PT. 216) 123 (S.C.). PER ALIYU, J.C.A.
FACTORS TO BE CONSIDERED BY THE COURT IN DECIDING WHETHER TO GRANT OR REFUSE AN APPLICATION FOR INTERLOCUTORY INJUNCTION
The factors that should guide a Court in deciding whether to grant or refuse an application for interlocutory injunction include the substance of the issue/dispute to be determined, the balance of convenience and the nature of the subject matter of the case among others. The applicant for interlocutory injunction has the burden to establish and convince the Court that there is substantial issue to be tried and that he has a right that should be protected against violation pending the determination of the case. See BUHARI VS. OBASANJO (2003) LPELR-813 (S.C.) and OKOMO OIL PALM CO. VS. TAJUDEEN (2016) 3 NWLR (PT. 1499) 284 (C.A.). PER ALIYU, J.C.A.
WHETHER OR NOT BALANCE OF CONVENIENCE IS A KEY FACTOR TO BE CONSIDERED IN AN APPLICATION FOR INTERLOCUTORY INJUNCTION
No doubt, balance of convenience is one of the key factors to be considered in an application for interlocutory injunction. It means the disadvantage to one or the other party which damages cannot compensate in the final determination of the case. Balance of convenience means also that more justice will result in granting the application or in refusing it or vice versa. See KOTOYE VS. C. B. N. (1989) 1 NWLR (PT. 98) 419 (S.C.). Also in the case of MABON LTD & ORS. VS. ACCESS BANK (2021) LPELR-53261 (CA) PATRICIA MAHMOUD, JCA speaking for this Court on the meaning of balance of convenience held in page 34-35, paras. E-D that:
This is not an abstract term, but it can be quite subjective because what constitutes a balance of convenience in one situation may not be so in another. In other words, the determination by a Court of where the balance of convenience rests in a case is a question of fact not law. This exercise of discretion implies weighing from the evidence before the Court the degree of hardship or inconvenience which each party is likely to suffer according to whether the order is granted or refused.
The Applicant therefore has the burden to establish or prove by facts in evidence that the balance of convenience rests on his side, not just by merely stating so. PER ALIYU, J.C.A.
BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): The Appellant was the Claimant at the High Court of Akwa Ibom State (trial Court) where he commenced Suit No: HU/74/2015 against the five Respondents claiming title to a parcel of land which he called “Ikot Akpan Odok” situate at Ikot Oku Ikono in Uyo Local Government Area of Akwa Ibom State. He also sought a perpetual injunction and general damages for trespass against the Respondents.
Upon being served with the originating processes of the Appellant, the Respondents filed their statement of defence and counter claimed the title to the disputed land, which they called “Ndun Abat”; injunction and general damages of N5 million for destruction of their palm trees and crops on the disputed land. After conclusion of pleadings, but before the commencement of trial, the Respondents filed a motion on notice on the 14th July 2015, located in pages 161- 229 of the record of appeal, praying the trial Court for the following orders against the Appellant:
1. Granting Interlocutory Injunction restraining the Claimant, his agents, workmen and servants from further entry into the piece and parcel of land, lying, situate at Ikot Oku Ikono in Uyo Local Government Area known and called Ndon Abat and doing any manner of work therein being the property of the Defendants/Applicants until the determination of the substantive suit.
2. And for such further or other orders as this Honourable Court may deem fit to make in the circumstances of this case.
The application was supported by an affidavit of 17th paragraphs sworn to by the 1st Respondent to which are attached documents marked exhibits ‘A’ to ‘E’ and a written address in support.
The facts deposed to in the supporting affidavit indicated that Respondents are in possession of the land in dispute, which they claimed that they inherited through their great grandfather who deforested and lived thereon since the 1890s. Their father also lived peacefully on the land until his death in 1978. The 1st Respondent stated that he applied to the Ministry of Agriculture for Oil Palm Scheme in 1985 and was granted. That since 1985, the Respondents family has been planting and cultivating oil palm fruits on the land and have also leased part of it to various individuals who also cultivate it and profits were shared with the family.
However, some time ago the Appellant tried trespassing into the disputed land and the Respondents resisted and took him to the Ikono Ibom Clan Council of Chiefs who heard the matter and decided in favour of the Respondents. But again the Appellant broke into the land and destroyed the Respondents’ crops and the Respondents reported him to the Police, who charged him to Magistrate Court. While the case was going on at the Magistrate Court, the Respondents went to inspect the land and discovered men working on it. Upon enquiry, the workers informed them that the Appellant employed them to hurriedly erect a building on the land. They took photographs of the workers and the building being erected on the land (exhibit E) as evidence. They stated that the Appellant’s workers damaged all the crops and oil palm trees that the Respondents planted on the land. They attached copies of their application to plant oil palm trees on the land, which they made to the Ministry of Agriculture as exhibit ‘A’, the receipts of payments made to them by persons they leased part of the land to as exhibit ‘B’, the judgment of the traditional Court of Ikono Ibom Clan Council of Chiefs as exhibit ‘C’ and charge sheet filed against the Appellant by the police at the Magistrate Court as exhibit ‘D’ respectively.
The Appellant responded to the Respondents’ motion on notice by swearing to a 31- paragraphed counter affidavit, located at pages 262 to 267 of the record of appeal. He attached documentary exhibits ‘A’ to ‘E’ in opposition to the Respondents’ motion. He averred that the disputed land belonged to him as a gift from his father who also inherited it from his own father. He claimed that the disputed land was founded by his ancestor called Antie Mbot Efe from time immemorial and he has been in quiet possession of the land since it was gifted to him in 1980. It was only in 2012 that Respondents started laying claims to the land. That the letter to the Ministry of Agriculture and various receipts that the Respondents relied upon are all forged in order to deceive the trial Court. He also stated that the judgment of the traditional council was also forged and the only judgment between the parties was the one given by the Ikot Ikono Village Council, which he attached as exhibit ‘C’ and it was decided against the Respondents.
With regards to the charge sheet filed at the Magistrate Court against him, the Appellant stated that it was struck out, upon the letter written by the Ikot Ikono Village council. He further stated that he has been living on the disputed land with his family since it was gifted to him by his late father in 1980, over 35 years ago. In fact, he buried all his parents on the disputed land. Exhibit ‘D’ shows his building on the land.
After considering the affidavits and written addresses of the parties, the learned trial Judge delivered the Court’s ruling on the 13th May 2016 and granted the application. He made an order of interlocutory injunction restraining the Appellant from entering the disputed land pending the determination of the suit.
The Appellant was aggrieved with the ruling and he filed notice of appeal against it on the 27th May 2016, relying on four (4) grounds of appeal to pray this Court to allow the appeal and to set aside the ruling of the trial Court. The notice of appeal was amended with the leave of this Court and filed on the 2nd November 2020 after which the Appellant’s brief settled by CHIDINMA NANCY NWAJOBI ESQ. was filed on the 10th December 2020. She proposed the following issues for the determination of the appeal:
1. Whether the learned trial Judge was right when he restrained a party in possession or occupation from further entry of his premises. (Grounds 2 and 3).
2. Whether the learned trial Judge was right when he delved into the substantive suit at the time of determining the application of the Respondents. (Grounds 2 and 3).
3. Whether the learned trial Judge was right in restraining an already completed act. (Ground 1).
In opposing the appeal, the Respondents filed their Respondents’ Brief settled by FRANCIS EKANEM ESQ., on the 21st June 2021 and he proposed a sole issue for the determination of this appeal thus:
Was the trial Judge right in granting the application for an interlocutory injunction?
On the 1st February 2022, the appeal was called for hearing and the learned counsel adopted the parties’ respective addresses. Their submissions are considered below.
PARTIES SUBMISSIONS
In arguing the Appellant’s issue one, his learned counsel relied on the case of ASICHEIN & ANOR. VS. ALLAGOA (1996) 3 NWLR (PT. 434) 52 at 59, where the conditions for granting an interlocutory application were stated. He submitted that the granting of this type of application is discretionary and that though it is impossible to lay down any general rule regulating the discretion of Court, but it must be borne in mind that interlocutory injunctions are not granted as a matter of course. He contended that the learned trial Judge did not consider the balance of convenience of the parties before granting the application in view of the fact that the Appellant has a building structure already on the land in which he resides and runs a hotel business thereon. That the Respondents had not shown the damages they would suffer if their application was not granted. He argued also that an interlocutory injunction is principally targeted at preserving an existing status quo, and in this case the status quo is the Appellant’s occupation of the disputed land which ought to be maintained. He submitted that truncating the Appellant’s right of entry into the disputed land is never the intention of the law. He urged the Court to uphold the Appellant’s issue one and allow the appeal.
With regards to issue two, learned counsel referred to the holding of the trial Court on page 315 of the record of appeal regarding exhibit ‘D’, the attached photographs of the building on the disputed land, and he submitted that the reasoning of the trial Court is contrary to the trite position of the law that it is improper for a Court to comment or decide the substantive matter at an interlocutory or preliminary stage. He relied on the case of NABORE PROPERTIES LTD VS. PEACE COVER (NIG.) LTD (2015) 2 NWLR (PT. 1443) 286 at 322 for support and to urge us to hold that the learned trial Judge was wrong when he determined the substantive suit at this stage.
On issue 3, the Appellant’s learned counsel submitted that it is the law that where an act sought to be restrained has already been completed, it is wrong to grant an injunction to restrain such a completed act, vide the cases of GOV. OF IMO STATE VS. AMASIKE (1987) 4 NWLR (PT. 66) 663 at 673 and UZONDU VS. UZONDU (1997) 9 NWLR (PT. 521) 466 cited. That even assuming that the Appellant had no right of entry on the disputed land, since it has been established that he was already on the land and had done works on it, his entry is a completed act and the Respondents are guilty of delay in complaining against the Appellant until he filed a suit against them. He urged the Court to so hold and allow the appeal.
The Respondents in arguing their proposed lone issue referred us to the facts deposed in the affidavits in support and in opposition to their application and the exhibits attached thereto. Their learned counsel submitted that their application satisfied the conditions listed in the case of BUHARI VS. OBASANJO (2004) 114 LRCN 2723 vide their affidavits and exhibits attached. He urged us to note that the Appellant did not deny the facts averred by the Respondents that he destroyed their crops and oil palm trees on the disputed land and would continue to do so unless he was restrained.
The Respondents further submitted that they did not delay in bringing this application before the trial Court in order to protect the land that they also counter claim title to.
They further submitted that the Appellant did not place sufficient materials before the trial Court to show that he was actually living and working on the disputed land. In contrast, the Respondents placed sufficient facts that supported their application and the trial Court rightly granted same in their favour.
On the argument of the Appellant that the trial Court ought not to have restrained a completed act, the Respondents pointed out that the order of the trial Court actually restrained the Appellant from further entry on the land that is subject to litigation, having found that he was constructing a yet to be completed house on the land. They urged the Court to dismiss this appeal and affirm the ruling of the trial Court.
RESOLUTION
Upon consideration of the grounds of appeal and the briefs of the parties, I am of the view that the appeal can be determined on the Respondents’ lone issue. I adopt it as my guide to the determination of this appeal.
Interlocutory injunction is an equitable remedy available to an applicant whose purpose is to protect the res, the subject matter of litigation pending the determination of the dispute regarding it. The order keeps the matter in status quo ante bellum, i.e. the position the parties were before the hostility started. See EDOSOMWAN VS. EREBOR (2001) 13 NWLR (PT. 730) 265 (CA) and ORJI VS. ZARIA IND. LTD (1992) 1 NWLR (PT. 216) 123 (S.C.).
The factors that should guide a Court in deciding whether to grant or refuse an application for interlocutory injunction include the substance of the issue/dispute to be determined, the balance of convenience and the nature of the subject matter of the case among others. The applicant for interlocutory injunction has the burden to establish and convince the Court that there is substantial issue to be tried and that he has a right that should be protected against violation pending the determination of the case. See BUHARI VS. OBASANJO (2003) LPELR-813 (S.C.) and OKOMO OIL PALM CO. VS. TAJUDEEN (2016) 3 NWLR (PT. 1499) 284 (C.A.).
In this appeal, the Appellant complained that the learned trial Judge did not properly consider the balance of convenience, which really favoured him and not the Respondents, because by his exhibit ‘D’, he has proved he has a completed building on the disputed land. He contended that it was wrong for the trial Court to grant an injunction against a completed act.
No doubt, balance of convenience is one of the key factors to be considered in an application for interlocutory injunction. It means the disadvantage to one or the other party which damages cannot compensate in the final determination of the case. Balance of convenience means also that more justice will result in granting the application or in refusing it or vice versa. See KOTOYE VS. C. B. N. (1989) 1 NWLR (PT. 98) 419 (S.C.). Also in the case of MABON LTD & ORS. VS. ACCESS BANK (2021) LPELR-53261 (CA) PATRICIA MAHMOUD, JCA speaking for this Court on the meaning of balance of convenience held in page 34-35, paras. E-D that:
This is not an abstract term, but it can be quite subjective because what constitutes a balance of convenience in one situation may not be so in another. In other words, the determination by a Court of where the balance of convenience rests in a case is a question of fact not law. This exercise of discretion implies weighing from the evidence before the Court the degree of hardship or inconvenience which each party is likely to suffer according to whether the order is granted or refused.
The Applicant therefore has the burden to establish or prove by facts in evidence that the balance of convenience rests on his side, not just by merely stating so.
I found that in this case, the learned trial Judge did in fact consider the Appellant’s argument that balance of convenience favours him in page 315 of the record of appeal, and His Lordship found and held thus:
On the consideration of the side on which the balance of convenience lies, the Plaintiff/Respondent was silent on the issue except that according to him, he has done diverse of work on the land in dispute. However the extent of work done as shown to the Court by the Plaintiff/Respondent’ counter affidavit in my view has not demonstrated conclusively the fact that the building has been completed and that there are tenants on the premises. There is also no evidence before me to conclude whether the building occupies the entire land in dispute, for which the order of interlocutory injunction is sought by the Applicant/Respondent (sic). The particulars of the Plaintiff/Respondent are therefore insufficient for the Court to rely on same as proof that the act complained of has been completed….
I have also examined the facts deposed in the affidavit evidence on both sides, which I have painstakingly stated at the beginning of this Judgment, and I observe that the only facts relied upon by the Appellant for opposing the application are that he had a building on the disputed land. He failed to address the allegations of the Respondents that he destroyed their crops and oil palm trees that are on the disputed land, which led to his being charged to Court by the police evidenced by exhibit ‘C’ attached to the affidavit in support of the application. I also consider the receipts the Respondents attached to their affidavit showing payments made to them for leasing the disputed land and the photos of the ongoing building works on the land being carried on by Appellant, not completed and occupied buildings as he claimed.
I am therefore in total agreement with the learned trial Judge’s holding supra that the balance of convenience favours the Respondents more than the Appellant per the evidence before the Court.
The Appellant also asserted that the learned trial Judge determined the substance of the suit in the determination of the application. But he failed to show how the substance of the suit was determined at this stage. The orders made by the learned trial Judge were simply to maintain the status quo pending the determination of the suit that the Appellant himself filed. He should have dissipated the energy used in pursuing this appeal to prosecute his claims before the trial Court.
I therefore do not agree with the submissions of the Appellant that the trial Court decided the substance of the suit at this stage. Rather, the learned trial Judge considered only the affidavits and documents filed in support and in opposition to this application. The Appellant has not placed before us anything showing that the decision of the learned trial Judge to grant the Respondents’ application was wrong to justify our intervention. I therefore resolve the lone issue against the Appellant.
Consequently, I find no merit in this appeal and I dismiss it. I affirm the ruling of the High Court of Akwa Ibom State, sitting at Uyo, delivered on the 13th May 2017 in Suit NO: HU/74/2015. Cost of N50, 000: 00 (fifty Thousand Naira) only awarded to the Respondents against the Appellant.
RAPHAEL CHIKWE AGBO, J.C.A.: I was opportuned to read in draft the judgment of my learned brother Aliyu, JCA and I agree with her that there is want of merit in this appeal. I also dismiss the appeal.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I was afforded the privilege of reading in draft the judgment delivered by my learned brother, Balkisu B. Aliyu, JCA. I agree with the reasonings and conclusion.
The purpose of an interlocutory application is generally to keep the parties to an action in Court in a position of status quo ante bellum and in that way preserve the subject matter of litigation. OBEYA MEMORIAL HOSPITAL V. A.G. FEDERATION (1987)3 NWLR, (Prt.60) 325 and ANDONG V. ASUQUO (2020) 11 NWLR (Prt.1736) 580 at 596.
I agree with the lead judgment that the learned trial judge did not determine the substance of the appellant’s suit but rather maintained the equilibrium pending the hearing and determination of the substantive Suit.
I too dismiss the appeal and abide by the consequential orders.
Appearances:
C. N. NWAJIOBI, ESQ. For Appellant(s)
FRANCIS EKANEM, ESQ. For Respondent(s)