ALCATEL KABELMETAL NIGERIA. PLC (Formerly Kabelmetal Nigeria Limited) & ORS v. ALHAJI LAMINA OJUGBELE
In The Court of Appeal of Nigeria
On Thursday, the 11th day of July, 2002
SUNDAY AKINOLA AKINTAN Justice of The Court of Appeal of Nigeria
MORONKEJI OMOTAYO ONALAJA Justice of The Court of Appeal of Nigeria
FRANCIS FEDODE TABAI Justice of The Court of Appeal of Nigeria
- ALCATEL KABELMETAL NIG. PLC (Formerly Kabelmetal Nigeria Limited)
2 MOSES & MOSES ENGINEERING LIMITED
3. FUNMEC (NIGERIA) LIMITED
4. HADJI BASHY NIGERIA LIMITED Appellant(s)
ALHAJI LAMINA OJUGBELE Respondent(s)
ONALAJA, J.C.A. (Delivering the Leading Judgment): Plaintiff filed an action against the defendants, jointly and severally as 1st, 2nd and 4th defendants were ordinarily resident in Lagos State, plaintiff sought and was granted leave to issue the writ and serve outside the jurisdiction of Ogun State High Court, holden at Ota. After service on the defendants, pleadings were filed by plaintiff, who filed his statement of claim on 22nd July, 1999, and as the claim in the statement of claim, superseded the particulars of claim in the writ of summons, plaintiff’s claims are set out in paragraph 17 of the statement of claim as follows:
“17 WHEREOF the plaintiff claims as per the writ of summons namely:
(a) Declaration that the plaintiff is the holder of the legal estate over a parcel of land of 23.035 acres lying, situate and being at TEMIDIRE, Sango Otta, Ogun State, covered by deed of conveyance No. 42/42 Vol. 34 of Lands Registry Abeokuta, out of which 21.665 acres were granted as equitable LEASEHOLD to the 1st defendant as per agreement, dated 23rd March, 1978;
(b) Declaration that the sale of a portion of the said land by the 1st defendant to the 2nd defendant is ultra vires, the equitable leasehold and illegal, null and void;
(c) Declaration that the sale of a portion of the said land by the 2nd defendant to the 3rd defendant is null and void on the principle of nemo dat quod non habet;
(d) Declaration that the sale of a portion of the said land by the 2nd defendant to the 3rd defendant is null and void on the principle of nemo dat quod non habet;
(e) Order of possession of the whole land covered by deed No. 42/42/Vol. 34 of the Lands Registry, Abeokuta, including the portion covered by agreement dated 23rd March, 1978 in favour of the plaintiff for breach of convenant and destroying the reversionary interest of the plaintiff by the 1st defendant;
(f) Order of injunction restraining the 1st, 2nd, 3rd and 4th defendants, their servants, agents and privies from committing and continuing further acts of trespass on the said land.”
On 11th day of August, 1999, plaintiff as applicant filed a motion on notice at the High Court, Ota, under Order 33, High Court Rules of Ogun State High Court for an order as follows:
“Order of interlocutory injunction restraining the defendants/respondents, their servants, agents, and privies from committing and continuing acts of trespass i.e. alienating, granting tenancies excavating, erecting structures etc. on the parcel of land lying, situate and being at Temidire, Sango Ota, Ogun State of an area of 21.665 acres described in survey plan MAG No. 7/78 attached herewith in agreement, dated 23rd March, 1978.”
Plaintiff filed a supportive affidavit of 12 paragraphs wherein he deposed in particular in paragraphs 5, 6, 9, 10 and 11 as follows:
5. That the plaintiff stated also that he granted an equitable interest over 21.665 acres of the same land to the 1st defendant as per agreement dated 23rd March, 1978, attached herewith and marked exhibit B;
6. That after the grant of the equitable interest, the plaintiff did not sell the said land absolutely to the 1st defendant, nor grant a power of attorney to the 1st defendant to sell the 21.665 acres of land;
9. That the plaintiff informed me that the defendants/respondents are erecting structures on the land at a fast rate in order to permanently destroy the reversionary interest of the plaintiff and make it impossible for the plaintiff to recover the land at the end of the 25 years tenancy granted by Exhibit B. The plaintiff should recover the land in the year 2003;
10. That unless the defendants/respondents are restrained the plaintiff will not be able to recover the land;
11. That plaintiff/applicant is prepared to enter into a bond to pay damages for the order of interlocutory injunction should the honourable court find it necessary.
Plaintiff also filed further affidavit of 8 paragraphs wherein he filed documents marked Exhibits D, E, D1, E2, E3, D4 and D5. Also E1, E4 and F and G; references shall be made to the relevant exhibits when considered necessary.
On 27th day of August, 1999, defendants filed a 22-paragraph statement of defence and set up a counter-claim in accordance with the provisions of the High Court Civil Procedure Rules of Ogun State in paragraph 22 as follows:-
(a) A declaration that by virtue of deed of agreement and deed of supplementary/addendum, dated 23/3/78 and 23/4/85, Certificate of Occupancy No. 0000143 respectively, the plaintiff wholly assigned his rights and interest he acquired under the Land Use Act to the 1st defendant from 23rd of March, 1978, in respect of the land situate at Temidire, Sango Otta, described by the Survey Plan No. MAG/7/78 and prepared by M. A. Laoye Licensed Surveyor.
(b) A declaration that the 1st defendant, its agents, privies and assigns are entitled to the quiet enjoyment of the said land for 99 years from 23rd March, 1978, without any disturbance or hindrance from the plaintiff or any person rightly claiming from him.
(c) A declaration that the 1st defendant is at liberty to assign and/or sublet its unexpired term of years in the said land to any person provided the conditions of such assignment shall not derogate from the 1st defendant right and grant of Certificate of Occupancy No.00000145 issued at Land Registry, Abeokuta.
(d) A declaration that as from the 13th July, 1979, the 1st defendant is the person entitled to exercise all right and interest in pursuance of Certificate of Occupancy No. 00000143 of Ogun State of Nigeria.
(e) A declaration that the purported sales, leases, assignments and/or transfer of any portion of the said land by the plaintiff to any person or persons during the pendency of the terms of years granted by the plaintiff to the 1st defendant is unlawful, illegal, null and void.
(f) An order of injunction restraining the plaintiff, his agents and/or privies from further disturbing, hindering and/or interfering with the 1st defendant’s aforesaid rights on the said land.
(g) Claim of N29,000,000 (Twenty Nine Million Naira) as follows:-
1. Legal loan obtained from UBA Trustees Ltd. Nigeria to the tune of…- 9,000,000.00
2. N4,000,000.00 per acre of land transferred by plaintiff to various persons who trespassed on 1st defendant’s land (5) persons as at now- 20,000,000.00
TOTAL = N29,000,000.00″
On the same day, defendants filed jointly an application on notice under Order 33, High Court Civil Procedure Rules, Ogun State wherein they sought an order of:-
(1) An order of interlocutory injunction restraining the plaintiff/respondent, his agents, privies and assigns from going upon the land measuring 25.665 acres situate and being at Temidire, Sango-Otta to disturb, hinder and/or interfere by whatsoever means with the quiet enjoyment of the said land by the 1st defendant/applicant, its agents and privies pending the determination of the suit herein AND for such further and other orders as this honourable court may deem fit to make in the circumstances of this case.”
The defendants filed a supportive affidavit along with the interlocutory application of injunction on notice to plaintiff. The affidavit had 25 paragraphs but in particular the under-mentioned paragraphs-
“5. That the aforesaid piece of land is lying and situate at Temidire, Sango-Otta, Ogun State, which land is particularly, described and delineated by the Survey Plan No. MAG/7/78 drawn by a Licensed Surveyor M.A. Laoye and also covered by the Certificated of Occupancy of Ogun State No. 00000143, dated 13th July, 1999.
6. That the plaintiff/respondent executed a deed of lease in favour of the 1st defendant/applicant.
7. That the said deed of lease is dated 23/3/78 and as number 33 page 33 Volume 90 in the land Registry Abeokuta.
8. That the aforesaid deed of lease together with the aforesaid survey plan is hereby annexed and marked Exhibit A1
9. That the plaintiff/applicant permitted the 1st defendant to apply to Ogun State Government for a Certificate of Occupation, sometimes in 1979, in respect of the aforesaid land.
10. That the Ogun State Government granted the 1st defendant’s application for Certificate of Occupancy in July, 1979. Annexed herewith and marked Exhibits A2 is the photocopy of the Certificate of Occupancy.
11. That in a bid to formally regularize the 1st defendant’s holding on the aforesaid land, he executed a deed of rectification/addendum in favour of the 1st defendant/applicant on 23rd day of April, 1985.
12. That annexed herewith and marked Exhibit A3 is a copy of the said deed of rectification/addendum dated 23/4/85.
14. That the 1st defendant/applicant subsequently built fence round the said land, and authorised his officers to cultivate and farm on different parts of the aforesaid land.
17. That presently, the plaintiff/respondent together with about thirty hefty-looking men are parading the aforesaid land, disturbing the 1st defendant’s agents on the said land and destroying various crops therein planted by the officers of the 1st defendant/applicant.
18. The plaintiff/respondent has also stationed himself and about thirty hefty-looking men at strategic positions and on various entrances of the land and has been preventing workers of the 1st defendant and its agents to enter upon the land to attend to their various businesses.
22. That the plaintiff/respondent has already collected substantial amount of money from the 1st defendant as seen in exhibits A1 and A3 annexed herewith and so it is unconscionable for him to continue to deny the 1st defendant, officers and or agents from enjoying the benefit of the money it parted with.
23. That the 1st defendant/applicant is willing and ready to enter an undertaking to indemnify the plaintiff/ respondent if it is ultimately discovered that this application ought not to have been granted.
The plaintiff filed a 13-paragraph counter-affidavit to defendant’s application for interlocutory injunction some of the paragraphs in the said counter-affidavit are hereby reproduced:-
4. That the plaintiff/applicant informed me that the agreement dated 23rd March, 1978, is not a deed of lease and the document i.e. Exhibit A3 called deed of rectification/addendum has no legal validity under the Lands Use Decree.
5. That the plaintiff/applicant informed me that the agreement dated 23rd March, 1978, did not assign any interest to the defendant as the document is not a deed of assignment neither is the deed of rectification/addendum an assignment. All that the 1st defendant has is an equitable interest which does not give him power to make out-right sale of the land.
9. That paragraph 22 of the defendants’ affidavit is misleading in that what the plaintiff/applicant is challenging, is the destruction of his reversionary interest over the land by the sale of it, which the 1st and 2nd defendants have carried out to the 3rd and 4th defendants.
10. That the applicant informed me that the defendant’s motion asking for interlocutory injunction over 25.665 acres is irregular, as its exhibit A1 attached to the motion showed that the 1st defendant was granted 25 years tenancy over 21.665 acres.
11. That the 1st defendant/applicant has been aware since 1978, that other parties are occupying the land adjacent to the one over which it was granted 25 years tenancy/equitable interest.
12. That I attached herewith a letter written by the 1st defendant to the plaintiff, dated 1st August, 1978, which confirmed that other parties were occupying the land adjacent to the 1st defendant. The letter is marked exhibit H.
On 6th day of October, 1999, plaintiff filed a 16-paragraph reply and defence to counter-claim. Paragraphs 1 to 9 cover reply to statement of defence whilst paragraphs 10 to 16 were defence to the counter-claim.
On 11th October, 1999, plaintiff filed a counter-affidavit of 6 paragraphs to defendants’ application for interlocutory injunction paragraph 5 had sub-paragraphs a – k at pages 34 to 35 of the record of appeal.
These were the position of the pleadings, affidavits, and counter affidavits as at 11th October, 1999.
On 14th October, 1999, learned Counsel to the parties moved their respective applications of interlocutory injunctions each relying on their respective exhibits attached to their affidavits and counter affidavits for plaintiff’s application for interlocutory injunction and also affidavits and counter-affidavits for the application of interlocutory injunction sought by the defendants.
The plaintiff contended that he granted a leasehold for a term of 25 years in favour of 1st defendant, but to his surprise 1st defendant sold a portion of the land to 2nd defendant, who further resold to the 3rd and 4th defendants. The defendants proceeded to erect permanent structures like petrol stations to forestall his reversionary interest adversely come year 2003, when the term of 25 years certain granted on 23rd March, 1978, by agreement admitted as Exhibit B. Plaintiff submitted he was prepared to enter into a bond to pay damages for the order of interlocutory injunction.
In reply learned Counsel for defendants also argued application by the defendants for an order of interlocutory injunction also sought by defendants. He submitted that defendants set up a counter-claim to the claims of the plaintiff. He contended that plaintiff had no legal right against 1st defendant having granted it a lease of the land in dispute for a term of 25 years certain which was to terminate on 4th March, 2003, as per the deed of lease marked exhibit B in plaintiff’s affidavit and marked that the deed of lease dated 23rd March, 1978, and registered as number 33 page 33 Volume 90 in the Lands Registry at Abeokuta, marked Exhibit A1. He submitted further that with the knowledge and permission of plaintiff 1st defendant applied and was granted by Ogun State Government certificate of occupancy exhibited and marked exhibit A2. To regularise the holding of 1st defendant/plaintiff executed a deed of rectification/addendum in favour of the 1st defendant which deed was marked exhibit A3. By virtue of exhibits A1 and A3, plaintiff assigned absolutely all his rights and interest to the 1st defendant.
1st defendant submitted that in exercise of its interests it permitted the 2nd to 4th defendants, its privies and/or agents to occupy and use various parts of the land, during the period covered by the lease for a term of 25 years certain which would not expire until 2003. Plaintiff with thugs has been disturbing the peaceful possession, so it urged the court to grant defendants’ application for interlocutory injunction whilst the court should dismiss plaintiff’s application as the balance of convenience is in favour of defendants.
Learned Counsel for the plaintiff in reply, contended that relying on Savannah Bank (Nig.) Ltd. v. Ajilo (1989) 1 NWLR (Pt.97) 305 at 311 Exhibits CA 2 and CA 3 were void contrary to sections 22 and 26 of the Land Use Act, 1978, as the consent of the Military Administrator of Ogun State as a result of its voidity Exhibit CA 3 could not confer any right or interest on 1st defendant with respect Savannah Bank (Nig.) Ltd. v. Ajilo, is no longer good law as the Supreme Court had overruled it in Awoju-gbagbe Light Industries Ltd. v. Chinukwe (1995) 4 NWLR (Pt.390) 379 followed and adopted in Dr. N. A. Iragunima & Anor. v. Mrs. Abigail L. Uchendu & Anor (1996) 2 NWLR (Pt.428) page 30 at 52 CA.
The plaintiff by his claim, showed that he has reversionary interest which would be adversely affected and having sold the leasehold interest, 1st defendant was in breach therefore, he had shown that his action was not frivolous or vexatious. The overall evidence showed that the balance of convenience was in plaintiff’s favour having crossed both hurdles his application for interlocutory injunction be granted whilst the application for defendants’ interlocutory injunction be refused. The learned trial Judge then took time for consideration of the submissions for the ruling.
In a considered ruling delivered on 30th day of November, 1999, at pages 40 to 53 of the record of appeal, the learned Judge after considering the facts, the law and submissions of learned Counsel to the parties held that, plaintiff established that his action was not frivolous or vexatious being the first consideration to grant or refuse application for interlocutory injunction which must be a party, who has a legal right which right had been interfered with and cannot be adequately compensated in damages.
The erection of structures by defendants had adversely affected plaintiff’s reversionary interest which could not be adequately compensated. Plaintiff would suffer more injuries should the application be refused.
On the application of defendants learned trial Judge rejected Exhibits A1 and A3 as offending against section 16 of the Land Instruments Registration Law, Cap. 53, Laws of Ogun State as they fell under section 2 of the said Cap. 53 as instrument and to be pleaded in evidence must be registered having not been registered as they were not shown to have been registered as the court is only enjoined to admits admissible evidence Okoro v. The State (1998) 14 NWLR (Pt.584) 181, (1998) 12 SCNJ 84 at 96 and Odejide & Ors. v. Akanni & Ors. (1995) OGSLR 4th they were inadmissible thereby the learned Judge discountenanced the said Exhibits A1 and A3.
With regard to Exhibit A2, the photocopy of certificate of occupancy the learned Judge because plaintiff denied the procurement ofExhibitA2 stated as follows at page 52 of the record of appeal:-
“It claimed to have applied for it (i.e. Exhibit A2) consequent to the permission granted it by plaintiff. The 1st defendant never revealed in what form or manner this permission was given. Whether it was oral permission or written. The plaintiff however in paragraph 3 of the counter-affidavit denied permitting the 1st defendant to apply for a certificate of occupancy in that he claimed not to have executed any deed of lease or deed of assignment in itsfavour. Having regard to the foregoing, I am at a loss to appreciate how the 1st defendant has established his right to the land in question. What the 1st defendant has succeeded in doing having regard to the affidavit in support of its motion for an order of interlocutory injunction is to establish that as at the time when it applied for and procured Exhibit 2, it has no absolute title to the land covered by the said Exhibit. If it has, why did it have to seek for permission from the plaintiff to apply for Exhibit A2 as deposed to in paragraph (9) of the affidavit in support. Accordingly, I do not find the 1st defendant’s legal right to the land in dispute established by evidence before the court. Given this finding, I do not have to proceed to consider of balance of convenience as it related to the first defendant’s application.
Having earlier found that the plaintiff has succeeded in establishing that question of law, legal right and serious issue which would be determined in the substantive suit coupled with the finding of fact that the balance of convenience in this case rests on the side of the said plaintiff, the defendants, the servants, and privies are hereby, restrained from further alienating, granting tenancies, excavating and/or erecting structure on the parcel of land in dispute in this case measuring 21.665 acres situate and being at Temidire, Sango-Otta, Ogun State and described in survey plan MAG 7/78 attached to the agreement dated 23rd March, 1978″.
As I have found, the 1st defendant has not succeeded in establishing its legal right to the land in dispute in this case the said 1st defendant’s motion dated 27/8/99, fails.
In conclusion, the plaintiff’s motion dated 11/8/99, succeeds whilst that of the 1st defendant, dated 27/8/99 is dismissed.” (The italicisings are mine)
Obviously, 1st defendant was dissatisfied with the ruling so timeously, it filed a notice of appeal to be found at pages 54 to 56 of the record of appeal wherein in paragraph 3 of the notice of appeal, it raised 5 grounds of appeal and in accordance with the rules and practice of this court supplied and furnished the particulars. The 1st to 4th defendants are henceforth referred to in this judgment as 1st to 4th appellants. The appellants caused the notice of appeal to be served on plaintiff hereafter called respondent in this judgment.
Appellants in accordance with the rules and practice of this court on 5th day of April, 2001, with the leave of this court filed appellants’ brief of argument, wherein at page 3 they raised the undermentioned issues as issues for determination in this appeal they are:-
“(1) Whether on the facts and materials before the lower court the learned trial Judge properly exercised his discretion in granting the respondent’s application for interlocutory injunction and dismissing that of the appellants.
(2) Whether it is open to the trial Judge to set up and determine issues bordering on the merit of the substantive case upon an interlocutory application.”
Appellants caused their brief of argument to be served on the respondent. The respondent filed on May, 2001, respondent’s brief of argument. Like appellants’ brief complied with the rules of brief writing that issues for determination must be based on the grounds of appeal, but issues for determination must not be more than the grounds of appeal as both the Supreme Court and this court frown and deprecate proliferation of issues. Respondent complied with this rule from the grounds of appeal he distilled at page 4 in paragraph 4.01 the issues for determination in the appeal are as follows:-
“4.01 Issues for determination:
The issues for determination formulated in this brief by the respondent in reply to the appellants’ brief are as follows:-
(a) Whether the respondent established before the lower court questions of law, questions of his legal right over the 23.05 acres of land and other serious issues warranting the grant of interlocutory injunction. Grounds 1, 3 and 5.
(b) Whether the lower court decided in the interlocutory ruling any of the claims before the lower court. Grounds 2 and 4”.
It is pertinent to note that appellants did not file a reply brief to respondent’s brief of argument.
Upon the matter coming up for argument, appellants relied and adopted their brief of argument filed in this court on 5th April, 2001 and adopted the same in argument of the appeal. Similarly, respondent in argument of the appeal relied and adopted respondent’s brief of argument filed in this court on 17th May, 2001.
Appellants’ issue 1 and respondent’s issue 1 are similar, simply put whether the learned Judge in granting respondent’s prayer for interlocutory injunction against appellants whilst the learned Judge refused to grant interlocutory injunction against respondent based on the application of appellants exercised his judicial discretion judicially and judiciously.
Appellants on issue 1 submitted and contended that by its very nature, an interlocutory injunction is a discretionary relief with the discretion to grant or refuse vested in the court, the nature of the discretion was stated by the Supreme Court in Ayorinde v. Attorney General, Oyo State (1996) 3 NWLR (Pt. 434) page 20 at 34 in these words:-
“No doubt an interlocutory injunction may be granted in all cases in which it appears to the court to be just and convenient to do so. But they are not normally granted as a matter of course. The applicant has a duty to satisfy the court that in the special circumstances of his case, he is entitled on the facts presented by him to a relief. The remedy is entirely discretionary and the governing principles depending on the facts but (sic) the issue in a given case admit some elements of flexibility.”
On the exercise of judicial discretion by the Supreme Court and this court, the attitude is that an appellate court would not generally question the exercise of the discretion of the lower court, merely because the appellate court would have exercised the discretion in a different way, if they had been in the position of the lower court. But may be questioned or interfered with in any of the following situation in legal parlance the rule in University of Lagos v. M. I. Aigoro (1985) 1 NWLR (Pt. 1) 143.
(a) where the court acted under a mistake of law; or
(b) where the court acted in disregard. of principles; or
(c) where the court acted under a misapprehension of the facts; or
(d) where the court took into account irrelevant matters or gave no weight or sufficient weight to relevant matters; or
(e) where the exercise of discretion occasioned an injustice; or
(f) where the exercise of the discretion was not done.
See further Ceekay Traders Ltd. v. General Motors Co. Ltd. (1992) 2 NWLR (Pt.222) page 132 at 136; Odutola v. Kayode (1994) 2 NWLR (Pt.324) 1 at 15; Hadmor Productions Ltd. v. Hamilton (1982) 2 WLR 322 at 325; Bank of Baroda v. Mercantile Bank Ltd. (1987) 3 NWLR (Pt.60) 233 at 240.
An applicant for grant of interlocutory injunction must show that there exists a legal right he seeks to protect, which the respondent is threatening to infringe Aku v. Anyebe (1995) 5 NWLR (Pt.397) 631 at 640.
Applying the above, the learned Judge disregarded the facts deposed to in paragraphs 4 – 14 of appellant’s affidavit. Exhibits A2 and A3 showed that appellant gave valuable consideration to the respondent for 99 years from 1st March, 1978, as respondent did not contest due execution of Exhibits A1 and A3 their validities were not in doubt thereby, the reversionary interest was vested in Ogun State Government.
By virtue of Exhibits A1, A2, and A3 since 1978, appellant was in possession and possessed the legal right to protect the legal rights by the grant of interlocutory injunction and therefore, entitled to interlocutory injunction against respondent.
On the balance of convenience, Exhibits A1 and A3 showed that respondent was paid N90,000.00 (Ninety thousand naira) in 1978, as rent for 25 years commencing from March, 1975, with a further payment of N240,000.00 as rent for 99 years, with commencement date of March, 1975. An injunction granted against appellants, who had paid respondents and in possession an injunction against it, would be untold hardship and injustice for loosing the enjoyment of rent paid to respondent and allowed to hold on right to the rent, appellant submitted the balance of convenience was in its favour leading to a review of the exercise of the discretion of the lower court to correct same by granting the interlocutory injunction in favour of appellants.
On issue 1, respondent submitted and contended that the facts in respondent’s affidavit and further affidavit and exhibits showed that, respondent had legal right by virtue of deed of conveyance No. 42/421/Vol. 39.
The tenancy agreement did not empower the appellant to sell the land more also when there was no outright sale to appellant, the sales to 2nd, 3rd and 4th defendants were all null and void. The construction of permanent structures was to make it impossible for the respondent to have the reversionary interest in the year 2003.
This made the balance of convenience to be in favour of the respondent. The respondent established that his claim raised substantial issue and not frivolous for the illegal sales of his land and illegal developments Amachree v. I.C.C. Ltd. (1989) 4 NWLR (Pt.118) page 686, these illegal sales and developments tilted the balance of convenience in his favour.
Appellants too filed motion for interlocutory injunction and relied on tenancy agreement of 23rd March, 1978, referred to as Exhibit A1, the certificate of occupancy 33/33/96 marked Exhibit A2. Exhibits A1 and A2 were not Land Instruments and the lower court properly held that they did not confer any legal rights on the appellant. Exhibit A3 did not authorise the first appellant to transfer land without the consent of the Governor under section 22, Land Use Act. Respondent contended he did not give his consent to appellants to apply for a certificate of occupancy. Exhibit A3 could not be said to have conferred any right on the appellants, accordingly, appellant’s motion for interlocutory injunction was properly refused.
Respondent submitted that the document dated 23rd March, 1978, though described by the parties as lessor and lessee is a tenancy agreement conferring only equitable interest on appellant, it was not a legal leasehold as the consent of the Governor was not obtained neither was it registered as deed of lease in the Lands Registry, Abeokuta, as the consent of the Governor to the transaction was not attached the contention that Exhibits A1, A2 and A3 conferred legal rights on the appellant as respondent stated was on grounds 1, 2, 3, and 4 was misconceived. With respect, I ignored submission based on grounds 1, 2, 3 and 4 as contended by respondent as once, the parties have formulated issues grounds of appeal are not allowed to be used in argument of appeal, so I ignore the submission based on grounds 1, 2, 3 and 4 by respondent.
The above is a summary of the arguments and submissions on issue 1 in appellant’s brief and issue 1 in respondent’s brief succinctly put or encompassed whether the learned Judge exercised his judicial discretion in the treatments of the two interlocutory injunctions under the rule in University of Lagos and Anor. v. M. I. Aigoro (1985) 1 NWLR (Pt.1) 143 SC clearly stated by appellant in its submission above.
The nature of an interlocutory injunction was defined at page 3 of Chief Afe Babalola, SAN’s book INJUNCTIONS AND ENFORCEMENT OF ORDERS as:-
“(b) An interlocutory injunction:- This is a preservatory measure taken at an early stage in the proceedings, that is, before the court has had an opportunity to hear and weigh fully the evidence on both sides and it is intended to preserve matters. It is an injunction which is directed to ensure that particular acts do not take place pending the final determination by the court of the rights of the parties.”
Order 33 Ogun State High Court (Civil Procedure) Rules covers interlocutory injunctions and interim preservation of property and empowers the High Court to grant interlocutory injunction when it is just and convenient.
Order 33 rule 5 provides as follows:-
“33 rule 5, Where on the hearing of an application made before the trial of a cause or matter for an injunction or appointment of a receiver or an order under rules 2, 3 or 4 or it appears to the court that the matter in dispute can be better dealt with by an early trial then by considering the whole merit thereof for the purposes of the application the court may make such order, accordingly and may also make such order as respects the period before trial as the justice of the case requires. Where the court makes an order for early trial, it shall by the order determine the place and mode of trial.”
My understanding of this order for early trial vests the Judge with a discretion to be exercised judicially and judiciously. In the instant appeal, I deliberated and advisedly set out earlier in this judgment the stage of the pleadings on 14th October, 1999, that the pleadings for both the original claim and counter-claim were closed and that the last process filed on the two applications for injunctions was the counter-affidavit of respondent to the application for interlocutory injunction by appellants on 11th October, 1999. The two applications for injunctions were argued on 14th October, 1999, neither the parties nor the learned Judge adverted their attention to the provision of Order 33 rule 5 Ogun State High Court Civil Procedure Rules, when the two applications were brought under Order 33 rule 1 of Ogun State High Court Civil Procedure Rules with respect the learned Judge made a false jump in taking argument for the two applications of interlocutory injunctions instead of granting an order for early trial under Order 33 rule 5 supra, the hearing of the two applications of injunctions when pleadings were closed for both plaintiff’s action and the counter-claim was based on wrong principle of law and wrongful exercise of judicial discretion by the learned trial Judge which empowers an appellate court an exception to interfering by the lower court the exercise of judicial discretion.
The injustice occasioned instead of early trial is delayed trial since October 11th, 1999, when the trial could have commenced on 14th October, 1999, instead of the hearing of the two applications for interlocutory injunctions which is now the subject of this appeal.
Let me reiterate that the rules of court are meant to be obeyed and for quick dispensation of justice as justice delayed is justice denied N. A. Williams v. Hope Rising Voluntary Funds Society (1982) 1 All NLR (Pt.1) 1, (1982) 2 SC 145; Ojugbele v. Lamidi (1999) 10 NWLR (Pt.621) 167 CA; Koku v. Koku (1999) 8 NWLR (Pt.616) 672 CA; Obala of Otan Aiyegbaju v. Adesina (1999) 2 NWLR (Pt.590) 163 SC; Alhaji Jimoh Akintola Odutola & Anor. v. Safiriyu Adebayo Lawal & 20 Ors. (2002) 1 NWLR (Pt.749) 633 CA.The principle to grant or refuse interlocutory injunction is well settled contrary to the statement or observation of the learned trial Judge at page 44 of the record of appeal thus:-
” …Though the jurisdiction of the court to grant interlocutory injunction is equitable, the guiding principles relating thereto are not settled.”
and the principle was stated by Obaseki, JSC in Obeya Memorial Hospital v. A.-G., Federation & Ors. (1987) 3 NWLR (Pt.60) 325 at 337 SC.
“What are the principles governing the grant of an interlocutory injunction? The governing principles are fairly well settled although the statement and restatement of the principles has in some cases been in terms which have created confusion. This was clearly stated by Lord Diplock in the case of American Cyanamid v. Ethicon Limited House of Lords English case (1975) AC 396 at 407, (1975) 1 All ER 504. It was held (1) That on an application for injunction, the applicant need not establish “A prima facie case” or “A strong prima facie case” but the court must be satisfied that there is a serious question to be tried.
(2) It is not part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature consideration. These are matters to be dealt with at trial.
(3) The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at trial.”
See further N.A.B. Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt.98) 419 at 441; Globe Fishing Industries Ltd. v. Coker (1990) 7 NWLR (Pt.162) 265 at 294; Dyktrade Ltd. v. Omnia (Nig.) Ltd. (2000) 12 NWLR (Pt.680) 1 SC; Jabre v. Jabre (1999) 3 NWLR (Pt.596) 606 CA.
Applying the above to the facts of the case, respondent granted equitable interest per his Exhibit B as deposed to in paragraph 5 of his affidavit supra thus:-
“5. That the plaintiff stated also that he granted an equitable interest over 21.665 acres of the same land to the 1st defendant as agreement, dated 23rd March, 1978, attached herewith and marked B”.
Exhibits B and A1 are the same documents granted from 23rd March, 1978, to 1st appellant a term of lease for 25 years certain, which would expire on 22nd March, 2003. Respondent was emphatic that the granted an equitable interest of 25 years and that 1st appellant was immediately put into effective possession. Exhibit A1 created equitable interest with possession and for payment of money served as a receipt and clearly admissible Ogunbambi v. Abowaba (1951) 13 WACA 222; Djukpan v. Orovuyovbe (1967) NMLR 2S7, (1967) 1 All NLR 134; Eze v. A.-G., Rivers State (1999) 9 NWLR (Pt.619) 430 CA; Buraimoh v. Karimu (1999) 9 NWLR (Pt.618) 310 CA; Dyktrade Ltd. V Omnia (Nig.) Ltd. (2000) 12 NWLR (Pt.680) 1 SC.
The learned Judge could not approbate and reprobate by upholding Exhibit B, whilst he declared void Exhibit A1 though the same document. Having so held he confused himself and applied wrong principle of law contrary to directive 2 supra in American Cyanamid v. Ethicon supra by denying balance of convenience to the 1st appellant, who had been on the land in dispute with effective possession granted it for 25 years certain from 23rd March, 1978, which possession was to expire on 22nd March, 2003.
It is common ground and rightly held that respondent’s claims and 1st appellant’s claims were not frivolous, vexatious with serious question to be tried but derailed on the balance of convenience, as to what constitutes balance of convenience the case of E. Akinlose and Others v. A.I.T. Limited and Others. (1961) WRNLR 116 wherein it was held:-
“1. That in deciding whether to grant the interlocutory injunction consideration ought to be given to the balance of convenience to the parties and the nature of the injury which the defendants on the one hand would suffer if the injunction was granted and the case was subsequently decided in their favour and that which the plaintiffs on the other hand would suffer if the injunction was refused and the case was ultimately decided in their favour.
2. That the burden was on the plaintiffs to prove that the inconvenience which they would suffer by the refusal of the injunction would be greater than that which the defendants would suffer if it was granted;
3. That on the facts, it was clear that considerable financial loss would be suffered by the defendants if the injunction were to be granted whereas no appreciable damage or irreparable injury would be suffered by the plaintiffs if it were to be refused.
Let me reiterate as the grant or refusal of interlocutory injunction is discretionary to be exercised judicially and judiciously, a case is no precedent to a subsequent case for the discretion to be exercised in a particular way or manner. A precedent shall fetter the exercise of jurisdiction, the rule of law is that in exercise of judicial discretion each case shall be decided based on the special circumstances of each case Odusote v. Odusote (1974) 1 NMLR 228, (1971) 1 All NLR 219; Okeke v. Oruh (1999) 6 NWLR (Pt. 606) 175 SC; Oyekanmi v. NEPA (2000) 15 NWLR (Pt.690) 414 SC. On the issue of balance of convenience the appellant’s case was not considered at page 52 of the record. The issue of balance of convenience was one sided in favour of respondent.
Both appellants and respondent deposed to entities and provisions of bonds as to undertaking as to damages should the ruling be decided against them regrettably the learned trial Judge did not extract undertaking as to damages from respondent who was prepared to give a bond. The failure does not vitiate a proper grant of interlocutory injunction as the appellate court had discretion to extract on appeal undertaking as to damages Ojimba v. Ojimba (1996) 4 NWLR (Pt.440) 32 CA; Afro-Continental (Nig.) Ltd. v. Ayantuyi (1995) 9 NWLR (Pt.420) 411 SC.
As stated and defined above, an interlocutory injunction is a temporary measure given to last within a particular period, the learned Judge did not specify the period of the interlocutory injunction granted the respondent, one is not surprised at this omission because the application of 11th August, 1999, reflected above did not ask for the length of time or period of the prayer of interlocutory injunction.
Appellant’s prayer for interlocutory injunction of 27th August, 1999, which was refused specified the period thus:-
“With the quiet enjoyment of the said land by the 1st defendant/applicant, its agents and privies pending the determination of the suit herein.”
After the grant of the prayer to respondent at page 53 of the record of appeal no date was fixed for continuation of the trial as it is desirable to specify the period of the interlocutory injunction.
The attitude of appellate court to exercise of judicial discretion was stated in Elendu v. Ekwoaba (1995) 3 NWLR (Pt.386) 704 at 749 CA and held:-
“25. The law is that except upon grounds of law an appellate court will not reverse a discretionary order of a trial court merely because it would have exercised the discretion differently. But if on other grounds, the order will result in injustice being done or if the discretion was wrongly exercised in that due weight was not given to relevant considerations, order may be reversed [Saffieddine v. COP (1965) 1 All NLR 54; Enekebe v. Enekebe (1964) 1 All NLR 102; Awani v. Erejuwa II (1976) 11 SC 307; Odusote v. Odusote (1971) 1 All NLR (Pt.1) 219 referred to.]
(24) It is well settled that if judicial discretion is exercised bona fide by a lower court uninfluenced by irrelevant considerations and not arbitrary or illegal, the general rule is that an appellate court will not ordinarily interfere. The discretion being judicial must at all times be exercised not only judicially but also judiciously on sufficient materials [University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143 referred to.” Confirmed by the Supreme Court in Elendu v. Ekwoaba (1998) 12 NWLR (Pt.578) 320 SC.
Fasanya v. Adekoya (2000) 15 NWLR (Pt.689) 22 CA; Techno Mech. (Nig.) Ltd. v. Ogunbayo (2000) 1NWLR (Pt.639) 150 CA.
Applying the above to the instant appeal, the learned Judge granted the order of interlocutory injunction in favour of respondent based on wrongful exercise of his judicial discretion as stated above in this judgment therefore, empowers this court to interfere and convinced by the contentions and submission of the appellants, their arguments on them are cogent, convincing and substantial therefore resolved issue 1 in appellant’s brief of argument in favour of appellants. The points canvassed by respondent in issue 1 in respondent’s brief of argument are unmeritorious and less convincing, the result is that issue 1 in respondent’s brief of argument is resolved against the respondent.
Issue 2 in appellants’ brief of argument attacked the ruling of the lower court that it had already decided in the consideration for interlocutory injunction the issues to be decided in the substantive case respondent’s issue 2 in respondent’s brief of argument is not dissimilar to issue 2 in appellants’ brief of argument.
At page 46 of the record of appeal the learned Judge stated as follows:-
“In an application for an order of interlocutory injunction the court is enjoined to take care not to make pronounce-ments which may prejudice the trial of the claims filed and still pending before it – See Globe Fishing Industries Ltd. & Ors. v. Coker (1990) 7 NWLR 458 (Pt.162) 265, (1990) 11 SCNJ 65, 68. The plaintiff in this case claims various declarations and injunction over the land in dispute which he claimed is still his own.”
But as stated above in this judgment in the underlinings above as extracted from page 52 and stated:-
“Accordingly I do not (sic not) find the 1st defendant’s legal right to the land in dispute established by affidavit evidence before the court. Given this finding, I do not have to proceed to consider the issue of balance of convenience as it relates to the 1st defendant’s application.
At page 53:
As I have found that the 1st defendant has not succeeded in establishing its legal right in the land in dispute, in this case, the said 1st defendant’s motion dated 27/8/99 fails.”
On issue 2 appellants relied on the judgment of the Supreme Court in Oduntan v. General Oil Ltd. (1995) 4 NWLR (Pt.387) 1 at 13-14
F, G, B) that:-
“The court when considering an application for interlocutory injunction should not try to resolve conflicts of evidence on affidavit as to facts on which either party may ultimately depend or decide difficult questions of law which call for detailed argument and consideration. A Judge in determining such application must be careful and ensure that he does not in the determination of the application, determine such issues that would arise for determination in the substantive suit.”
Appellants submitted that when the learned Judge applied the Land Instruments Registration Law at page 52 supra and underlined that –
“Exhibits A1 and A3 do not.
Accordingly, I must and hereby discountenance the said Exhibits Al and A2.”
The learned Judge in coming to the conclusion that Exhibits A1 and A2 were not registered offended the provision of section 16, Land Instruments Registration Law of Ogun State was arrived at by learned trial Judge without calling on the parties to address the court on it. Respondent’s case was predicated on Exhibit B as equitable interest granted to 1st appellant which Exhibit B was the same document marked Exhibit A1. The learned Judge had decided a vital issue in the substantive suit in the consideration of the application for interlocutory injunction. So issue 2 be resolved in favour of appellants.
Respondent submitted on issue 2 in his brief of argument that it was misconceived and misleading to state that learned Counsel for the respondent made submission on Exhibits A1, A2 and A3 as learned Counsel for 1st appellant also addressed the court at pages 42-43 of the record of appeal on Exhibits A1, A2 and A3.
A consideration of the submissions on decision or issues to be canvassed in the substantive case is the bone of contention in issue 2 of appellants and respondent. The learned Judge adverted his mind to the guiding principle stated by the learned Judge in Globe Fishing Industries Ltd. v. Coker supra and notable case 20 page 300, Chief Afe Babalola, SAN, Injunctions and Enforcement of Orders.
But derailed in its application by declaring Exhibits A1 and A3 void when Exhibit A1 is ipssisma verba to exhibit B on which respondent predicated his case of grant of equitable interest to 1st appellant.
Applying Oduntan v. General Oil Ltd. (1995) 4 NWLR (Pt.387) 1 at 13 – 14, to the facts of this case there is much force in the contention of appellants that the learned Judge unwittingly decided the issues to be decided in the substantive case contrary to the laid down principle of law being an interlocutory stage or interlocutory appeal, the court should not at interlocutory stage decide the issue to be decided at the final trial or substantive appeal Nigerian Breweries Plc v. Lawrence Adetunji Osho & 6 Ors. (2001) 8 NWLR (Pt.716) 746 CA. There is therefore, merit in the submission of appellants on issue 2 which is resolved in their favour. Respondent’s submission on his issue 2 lacks substance and devoid of merit it is resolved against respondent.
Having resolved issues 1 and 2 in appellants’ favour as substantial and meritorious the order of interlocutory injunction against the appellants, their servants, agents and privies on 30th day of November, 1999, is hereby, discharged and set aside. In view of our comments on the application of Order 33 rule 5 of Ogun State High Court Civil Procedure Rules, we remit the case to the High Court of Ogun State holden at Otta that the case be given an accelerated hearing with immediate and utmost dispatch. The application for interlocutory injunction by appellants which was refused by the lower court in view of Order 33 rule 5 aforesaid is now otiose. The new trial shall be before another Judge not Hon. Justice A. Lokulo Sodipe.
Having allowed the appeal for the reasons adumbrated above, appellants are entitled to the cost of this appeal. As costs follow the events and awarded on compensatory grounds in favour of successful party and not to punish the unsuccessful party acting judicially and judiciously, I fix the cost of N10,000.00 in favour of appellants against respondent.
The comedy of errors reflected above in this judgment by the learned Judge has vindicated the concern of the judiciary that at every All Judges’ Conference they focuse on and re-echo the importance of interlocutory injunctions and also reflected in the paper presented by me at the millennium 2001 All Judges’ Conference, Abuja on the topic “The importance of interlocutory injunctions in the administration of justice.”
AKINTAN, J.C.A.: I had the advantage of reading, the draft of the leading judgment, prepared by my learned brother, Onalaja, JCA. I agree with his reasoning and conclusion as set out therein. I also, agree that the appeal should be allowed. I too, allow the appeal and make similar consequential orders, as are made in the leading judgment, including that on costs.
TABAI, J.C.A.: I was privileged, to read the leading judgment, prepared by my learned brother, Onalaja, JCA, and I agree with the reasoning and conclusions therein. I also agree with the consequential orders therein, including the order on costs.
Chief G.A. Bickersteth (with him, Kayode Oyelade, Esq.)For Appellant
- Adenekan, Esq.For Respondent