FLORENCE OWOLABI ENTERPRISES LTD. V. WEMA BANK PLC (2011)

FLORENCE OWOLABI ENTERPRISES LTD. V. WEMA BANK PLC

(2011)LCN/4503(CA)

RATIO

INTERLOCUTORY INJUNCTION: PURPOSE OF AN INTERLOCUTORY INJUNCTION

An interlocutory injunction has been through a plethora of judicial pronouncement both by this court and the Apex court as an injunction that is directed to ensure that particular acts do not take place or continue to take place pending the final determination by the court of the rights of the parties. The purpose of interlocutory injunction is therefore to regulate the position of the parties pending trial whilst avoiding a decision on such issues which would only be resolved at trial. PER UWANI M ABBA AJI, J.C.A.

INTERLOCUTORY INJUNCTION: WHETHER THE GRANT OF AN INTERLOCUTORY INJUNCTION IS A DISCRETIONARY RELIEF; WHEN AN APPLICATION FOR INTERLOCUTORY INJUNCTION WILL BE REFUSED

It is also trite law that the grant or not of an interlocutory injunction is a discretionary relief and the Applicant therefore ahs an unfettered duty to satisfy the court that in the special circumstances of this case, he is entitled on the facts presented by him, to the relief. It is not a matter of course but the balance of convenience must be on a question of fact and not law. See Ayorinde v. Attorney General, Oyo State (1996) 3 NWLR (pt.434) 20. With the jurisdiction of the court to grant interlocutory injunction being equitable, the manner of the exercise of the discretion depends upon the precise nature of the particular rights which is sought to be protected and upon all the materials and circumstances. Mustapher, J.C.A (as he then was) again in the case of Ochudo v. Oseni (supra) further stated on whether or not to grant the relief:- “it will however be refused if it should appear to be unjust or highly unreasonable to grant it, having regard to the well known equitable considerations such as hardship or balance of convenience or such other matters.” PER UWANI M ABBA AJI, J.C.A.

INTERLOCUTORY APPLICATION: WHETHER AN INTERLOCUTORY APPLICATION SHOULD RELATE TO A SUBSTANTIVE CLAIM

It is also settled that an interlocutory application should relate to a substantive claim. See Chiekwelo v. Nwali (1998) 8 NWLR (Pt.560) 114.

INTERLOCUTORY APPLICATION: PRINCIPLES GUIDING CONSIDERATION OF AN APPLICATION FOR INTERLOCUTORY INJUNCTION

The Apex court in the case of Falomo v. Banigbe (1998) 7 NWLR (Pt.559) 679 held and laid down emphatically the principles guiding the consideration of an application for interlocutory injunction. Iguh, J.S.C said at page 695 of the report as follows:- “Although there is no rule requiring the plaintiff to establish a primi facie case before he can obtain an interlocutory injunction, the court must be satisfied that the plaintiff’s case is not frivolous or vexatious and that there is a serious question to be tried. Once this requirement is established, the governing consideration must be the balance of convenience.” PER UWANI M ABBA AJI, J.C.A.

ORDER OF INTERLOCUTORY INJUNCTION: WHETHER THE GRANT OR REFUSAL OF AN ORDER OF INTERLOCUTORY INJUNCTION IS THE ABSOLUTE DISCRETION OF A COURT

It is clear from the plethora of authorities and that it is well settled in law that the grant or refusal of an order of interlocutory injunction is the absolute discretion of a court, which discretion like all other judicial discretions must be exercised judicially and judiciously, having regard to all the facts and circumstances of each and every case. Having restated the general principles relating to interlocutory injunction, the only issue for consideration is whether or not the said application in question satisfies the conditions warranting the exercise of discretion in favour thereof of the Appellant. The determination of the said issue therefore calls for the consideration of all material facts placed before the court. PER UWANI M ABBA AJI, J.C.A.

In The Court of Appeal of Nigeria

On Tuesday, the 19th day of April, 2011

UWANI M ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the interlocutory ruling of Hon. Justice J.O. Adeyeye of the High Court of Justice, Ado-Ekiti Judicial Division of Ekiti State delivered on the 22nd October, 2009 dismissing the application of the Appellant for an interlocutory injunction against the Respondent.

The facts available on record is that the Appellant is a valued customer of the Respondent’s Bank operating three different accounts with the Respondent at its branch in Ado-Ekiti, Ekiti State.

Credit facilities were granted to the Appellant by the Respondent which was secured by the building properties of the Appellant.

The Appellant had been operating the accounts without any abandonment as the Appellant had made a payment of N10 Million into the accounts, out of which the Respondent allowed the Appellant a withdrawal of N3 Million to stay and recoup its dwindling business.

By its solicitor’s letter of 16th February, 2009 the Respondent called in the facility and threatened to dispose of the securities pledged as collateral for the facility by the Appellant alleging a total amount of N132, 331, 254:04k as owed and vehemently disputed by the Appellant as being unascertained and therefore incorrect and overblown, in that, in one of the accounts, the Appellant was falsely debited with a sum of N5 Million Naira instead of N5, 000:00.

With the persistent threat to sell the pledged securities, the Appellant instituted this action by its Writ of Summons dated 2nd March, 2009, claiming the following declaratory and injunctive reliefs:-

A Declaration that by the accounts being claimed on each of the accounts of the plaintiff at Ado-Ekiti branch of the Defendant as contained in the Defendant’s solicitor’s letter of 1st/2/09, the Defendant has overcharged the said accounts with interests, over bloated and unauthorized management fees consequently they are not the true and correct statement of account of the plaintiff.

A Declaration that in the management of accounts of the plaintiff, the Defendant had acted in breach and in violation of Guidelines and Regulations of the Central Bank of Nigeria.

An Order permitting the plaintiff’s auditors to look into the books of account of the plaintiff with the Defendant for the purpose of ascertaining for the true and correct statement of all transactions, charges, credits, debits and interests on the account of the plaintiff.

Perpetual Injunction restraining the Defendant, either by itself or its agents, servants or assigns from dealing with in whatever manner the mortgaged properties or collateral of the Plaintiff.

The Appellant on the 1st/4/2009 filed a motion on notice seeking inter alia for the following injunctive reliefs:-

1. An Order of interlocutory injunction restraining the Defendants/Respondents either by itself, its agent, servant or assign from selling or auctioning either by private or public treaty or by dealing with, in whatever manner the mortgaged properties of the plaintiff/Applicant pending the final determination of the substantive suit.

2. An Order of interlocutory injunction restraining the Defendant/Respondent either by itself, agents, servants or assigns from charging any further interest on the accounts of the Plaintiff/Applicant pending the final determination of the substantive suit.

The application was argued on the 23rd September, 2009 and in a considered ruling delivered on the 22nd October, 2009, the learned trial judge dismissed the application for injunction on the ground that the balance of convenience is not in favour of the Applicant. In dismissing the application, the court held inter alia at page 48 of the record of appeal as follows:-

“Balance of convenience is a question of justice based on facts before the court. The Plaintiff/Applicant did not deny the fact that she is owing the Defendant/Respondent. The Defendant/Respondent no doubt must meet its obligations to other customers. It is as a result of this that I agree with the learned counsel for the Defendant that the balance of convenience is in refusing the application because the Application will be denying other customers of the facility tied down by her if the application is granted”.

It is against the said ruling that the Appellant appealed vide a Notice of Appeal filed on the 30th October, 2009 upon two grounds of appeal. The grounds of appeal are hereby reproduced without their particulars.

Grounds of Appeal

1. The learned trial judge erred in raw when he held that the balance of convenience is in favour of the Respondent and therefore dismissed the application for interlocutory injunction pending the final determination of the substantive suit.

2. The learned trial judge erred in law in holding that the non filing of the statement of claim had made the hand of the Appellant unclean thereby depriving it the equitable relief of injunction.

As it is the practice in this court, parties filed and exchanged briefs of argument. In the Appellant’s brief of argument settled by F. Omotosho, Esq. two issues were distilled for the determination of the appeal, viz:-

1. Whether the decision of the trial court that the balance of convenience is in favour of the Respondent is founded upon any material fact presented before the court.

2. Whether non filing of the statement of claim is fatal to the grant of interlocutory injunction.

In the Respondent’s brief of argument settled by Owoseni Ajayi, Esq. learned counsel, raised a preliminary objection to the competence of the appeal on the ground that no leave was obtained from the lower court to appeal against the said interlocutory ruling that was purely based on facts, and formulated two issues for determination one which was based on the preliminary objection. The issues are:-

1. Whether the Appellant ought to have obtained the leave of the lower court to appeal against this interlocutory ruling that was based purely on facts canvassed before the lower court.

2. Whether the learned trial judge rightly exercised his discretionary power in refusing the Appellant’s prayer for an order of interlocutory injunction.

At the hearing of the appeal on the 17th February, 2011, the Appellant’s counsel Mr. F. Omotosho, Esq. was absent in court even though duly served with a hearing notice of the appeal on the 3rd February, 2011. Mr. E.K. Omosebi, Esq holds the brief of Mr. Owoseni Ajayi, Esq. for the Respondent Mr. Omosebi, Esq. urged the court to deem the brief of the Appellant dated 1st November, 2010 and filed on the 2nd November, 2010 as duly argued pursuant to Order 17 Rule 9 (4) of the Rules of this Court. He also urged the same of the Appellant’s reply brief dated 28th December and filed on the 30th December, 2010. He adopted and relied on the Respondents brief of argument dated and filed on the 9th December, 2010, and urged the court to dismiss the appeal. When asked about the preliminary objection, he interestingly submitted that he is withdrawing the same.

The preliminary objection was consequently struck out along with the argument canvassed thereon.

A preliminary objection at the hearing of an appeal is an opposition to the hearing of the appeal that should be raised promptly and at the beginning of the hearing of the appeal by Respondent’s counsel before counsel for the Appellant opens his oral submissions.

It is clear that the purpose of a preliminary objection is, if successful, to terminate the hearing of the appeal in limine either partially or in toto. This purpose is now defeated by the sudden withdrawal of the preliminary objection for whatever reason or purpose by the Respondent’s counsel.

Be that as it may, the court will now proceed to consider the two issues as formulated by the learned counsel for the Appellant, Omotosho, Esq. the two issues will be taken together.

Issue 1:

Whether the decision of the trial court that the balance of convenience is in favour of the Respondent is founded upon any material fact presented before the court.

In arguing this issue, Mr. Omotosho, Esq, for the Appellant submitted that to determine the balance of convenience between the parties, the court readily poses the question, who will suffer more inconvenience if the application is granted? Or put it in a reverse order; who will suffer more inconvenience if the application is not granted? He cited and relied on the following authorities:-

3. The Law of Interim Injunction in Nigeria, by Niki Tobi, J.S.C, at page 62;

4. Buhari v. Obasanjo (2003) 17 NWLR (Pt.850) 587 @ 651 – 602 and 658;

5. Missini v. Balogun (1968) 1 ALL NLR, 318;

6. Ilechukwu v. Iwugo (1986) 2 NWLR (Pt.109) 99;

He submitted that the court in providing answer to the above questions must be guided by the facts before it as contained in the affidavit evidence, citing Buhari v. Obasanjo (supra) @ 658. He submitted that the trial court rightly considered the question but failed to be guided by the facts as disclosed in the affidavit evidence of the parties in providing the answer.

He referred to the part of that judgment earlier quoted in this judgment to submit that a careful consideration of that part of the judgment with the counter affidavit would show that the Respondent’s counter affidavit does not contain any material facts in support of the court’s finding. He referred to paragraph 13 of the Respondent’s counter affidavit to the effect that, the Application is enjoying the facilities of the other customers of the Bank, granting the application will deprive other customers of the facility tied down by the Applicant, that it is bereft of those facts canvassed. It is also his view that how the indebtedness had adversely affected the operation of the Bank was no where stated or contained in the counter affidavit and submitted that an address of counsel no matter how brilliant cannot be a substitute for evidence necessary to guide the trial court in refusing the application. He cited the cases of Oduwole v. David West (2010) ALL FWLR (pt.532) 1643 @ 1663: Bassev v. Afia (2010) All FWLR (Pt.531t) 1477 @ 1500.

Learned counsel further submitted that the grant or refusal of an application by a trial court for interlocutory injunction is always a product of the exercise of the discretionary power of the court, which must be founded on material facts presented to the court by evidence; and where material facts are not presented, this Honourable court would readily interfere. He cited in support the case of DPCC Ltd. v. B.P.C Ltd. (2008) 4 NWLR (Pt.1077) 376 @ 403.

Learned counsel further submitted that since the exercise of the discretion by the lower court has not been exercised judiciously and judicially in that it was based on extraneous factors not contained in any evidence, the court was urged to interfere and disturb the ruling of the lower court by setting it aside and to resolve the issue in favour of the Appellant.

It is also his view that the finding of the trial court to the effect that it will not be outside pecuniary compensation or difficult to assess damages if it turns out that the interest was wrongly charged as alleged, is perverse when the injury being complained by the Appellant is against the threat of the Respondent to sell the collateral securities of the Appellant which injury cannot be repaired if the application for injunction is refused. He referred to paragraphs 22, 23 and 24 of the affidavit in support of the application.

It is finally submitted by the learned counsel for the Appellant that the determination by a court of where the balance of convenience rests is a question, of fact and not law and the court is obliged to rely on the facts presented to it by the affidavit evidence available, citing the case of Ayorinde v. A.G. Oyo State (1996) 3 NWLR (Pt.434) 20 @ 32 and submitted that the trial court not having relied on the facts presented to it by the affidavit evidence of the Appellant but chose to base its findings on, unavailable material facts, the finding that the balance of convenience is in favour of the Respondent is perverse.

The court was called upon to intervene and depart from the perverse findings of the trial court and to reverse the conclusion arrived at by the trial court and allow this appeal, relying in the case of Oluwole v. Abubakare (2004) ALL FWLR (Pt.226) 289 @ 304

Issue 2:

Whether non filing of the statement of claim is fatal to the grant of interlocutory injunction.

Mr. Omotosho, Esq, for the Appellant referred to the ruling of the trial court that since the filing of the Writ of summons on the 2nd day of March, 2009, the Appellant did not take any step to file the statement of claim eight months after filing the writ of summons’ and concluded that the Appellant is only interested in the injunctive relief and that he who comes to equity must come with clean hands. He submitted that non filing of the statement of claim before the hearing of the application for an injunctive relief does not make the hands of the Appellant unclean or indicate any delay in allowing the Respondent to join issues with the Appellant. It is also his submission that the Appellant is not guilty of delay in the exhibit ‘B’ exhibited with the affidavit in support of the application was dated 16th/2/2009 and the writ of summons with the application for injunction were filed on 2nd/3/2009 and 27th/3/2009 respectively. He relied on the case of Adewole v. Adetimo (1996) 2 NWLR (Pt.431) 391 @ 404 – 405. It is therefore his view that the finding of the trial court that failure to file the statement of claim to enable the Respondent join issues with the Appellant eight months after the writ of summons cannot constitute a delay, more so when an application for interlocutory injunction can be determined in the absence of pleadings. The case of Mobil oil Nigeria Ltd. v. Agadaigho (1988) 2 NWLR (pt.77) 383 at 392 was referred to. It is also his view that the non filing of statement of claim is not a bar to the grant of interlocutory injunction. He also cited and relied on the case Opara v. Ihejirika (1990) 6 NWLR (Pt.156) 129 to submit that the fact that the statement of claim was not filed does not constitute a delay, making the hands of the Appellant unclean or showing that the Appellant is now only interested in the application for injunction. The court was urged to resolve this issue in favour of the Appellant.

Responding, Mr. Owoseni Ajayi, Esq, for the Respondent submitted that the learned trial judge exercised his discretionary power in refusing the Appetent’s application for an order of interlocutory injunction. He submitted that interlocutory relief of this nature is granted at the discretion of the trial judge even though he has to act judicially and judiciously as the burden on how to convince the court to act judicially and judiciously in favour of the applicant rest squarely on him relying on the case of Okomo v. Umoetuk (2004) 10 NWLR (Pt.882) 526 @ 583, wherein the conditions an Applicant for interlocutory injunction need to fulfill were clearly spelt out as follows:

a. That there is a serious issue to be tried.

b. That he has a legal right which is threatened and ought to be protected.

c. The balance or convenience of the parties.

d. Nature of the injury which the Respondent on one hand would suffer if the injunction was granted and the cases is subsequently decided in his favour and that which he the Applicant on the other hand might sustain if the injunction was refused and he ultimately obtains judgment in his favour.

Learned counsel submitted that the learned trial judge carefully x-rayed these conditions before deciding against granting the Interlocutory injunction in favour of the Appellant. It is his view that the Appellant who is obviously aware of the consequences of default in its responsibility to the Respondent in terms of forfeiture of its legal mortgage rushed to the court in order to put a judicial hindrance to the right of the Respondent to exercise its forfeiture right over the mortgaged property by causing a delay by raising spurious issues of charging rate, non furnishing of the statement of account and allowing its own auditors to audit the Bank Account which were all denied in the counter affidavit of the Respondent.

Learned counsel referred to the judgment of the learned trial judge at pages 47 to 48 of the record in reaction to the above stated facts and submitted that to worsen the case of the Appellant and to show its bad conduct in praying for interlocutory injunction to delay her responsibility to the Respondent, the Appellant filed a writ of summons on the 2nd March, 2009 and up till the time of argument of the interlocutory injunction on 2nd September, 2009 about seven months thereafter, the statement of claim was not filed to proceed to trial in case the application for injunction is granted. It is thus submitted that interlocutory relief is an equitable relief and whoever wants to be granted this relief must approach the court with clean hands. He thus referred to page 49 of the record of appeal where the learned trial judge also made pronouncement on the conduct of the Appellant. It is his view that the reasoning of the learned trial judge on the conduct of the Appellant cannot be defaulted and urged us to hold and concluded that the learned trial judge rightly refused the Appellant’s application for an injunction on the ground that the complaint of the Appellant is such that pecuniary compensation can assuage the loss of the Appellant if she succeeds on the issue of charging interest on unascertainable account, which is the main issue in contention. The court was urged to resolve the issue in favour of the Respondent.

I have carefully considered the facts of this case, the arguments of learned counsel thereon, and also the ruling of the learned trial judge. The main contention in the appear is the refusal of the learned trial judge to grant interlocutory injunction to restrain the Respondent from proceeding to realize the securities pledged as collateral for the facilities granted the Appellant by the Respondent Bank on account of spurious charges.

The court should as a general rule have regard only to the under mentioned criteria:-

1. First. Is there serious issue to be tried?

2. Secondly: are damages an adequate remedy?

3. Thirdly: where does the balance of convenience lie?

4. Fourthly: are there any special factors?

The principles upon which the court will act in an application of this nature are further well settled in the case of Ochudo v. Oseni (1998t 13 NWLR (pt.580) l03 wherein it was held:

“……the court should be satisfied that there is a serious question to be tried at the hearing and that on the facts before it, there is a probability that the plaintiff is entitled to relief….that the balance of convenience is on his side and furthermore, that damages cannot be adequate compensation for his damage if he succeeds of the end of the day'”

See also the Cases of Obeya Memorial hospital vs. Attorney-General, Federation (1987) NWLR 325, (2004) ALL FWLR (Pt.239) 1580: and Babatunde v. Olatunji (1994) 4 NWLR (Pt.339) @ 449. It is evident therefore, that the mere fact of a serious issue to be tried is not of itself sufficient. This must be coupled with the fact of establishing the balance of convenience in the Appellant’s favour and a further negation of adequate compensation in damages.

It is also trite law that the grant or not of an interlocutory injunction is a discretionary relief and the Applicant therefore has an unfettered duty to satisfy the court that in the special circumstances of this case, he is entitled on the facts presented by him, to the relief. It is not a matter of course but the balance of convenience must be on a question of fact and not law. See Ayorinde v. Attorney General, Oyo State (1996) 3 NWLR (pt.434) 20. With the jurisdiction of the court to grant interlocutory injunction being equitable, the manner of the exercise of the discretion depends upon the precise nature of the particular rights which is sought to be protected and upon all the materials and circumstances. Mustapher, J.C.A (as he then was) again in the case of Ochudo v. Oseni (supra) further stated on whether or not to grant the relief:-

“it will however be refused if it should appear to be unjust or highly unreasonable to grant it, having regard to the well known equitable considerations such as hardship or balance of convenience or such other matters.”

It is also settled that an interlocutory application should relate to a substantive claim. See Chiekwelo v. Nwali (1998) 8 NWLR (Pt.560) 114. The Apex court in the case of Falomo v. Banigbe (1998) 7 NWLR (Pt.559) 679 held and laid down emphatically the principles guiding the consideration of an application for interlocutory injunction. Iguh, J.S.C said at page 695 of the report as follows:-

“Although there is no rule requiring the plaintiff to establish a primi facie case before he can obtain an interlocutory injunction, the court must be satisfied that the plaintiff’s case is not frivolous or vexatious and that there is a serious question to be tried. Once this requirement is established, the governing consideration must be the balance of convenience.”

Having restated the general principles relating to interlocutory injunction, the only issue for consideration is whether or not the said application in question satisfies the conditions warranting the exercise of discretion in favour thereof of the Appellant. The determination of the said issue therefore calls for the consideration of all material facts placed before the court.

From the affidavit evidence of the parties, the summary of the application before us seeks to protect a threat to the properties of the Appellant under mortgage with the Respondent as collateral for the loan facilities granted to the Appellant.

It is trite law and as already spelt out supra, that the aim and purpose of an application of this nature, is to maintain the status quo and for the applicant to sustain position there must be a legal right to protect. The making of such an order is predicated upon the Applicant establishing a legal right. See Animashaun v. Governor of Lagos State (2002) 16 NWLR (Pt.793) 282.

At this juncture, an examination of the Appellant’s Affidavit, the further and Better Affidavit in support of the application and the Respondent’s counter affidavit deposed to in opposition to the application is necessary. The Appellant deposed to a 27 paragraph affidavit as follows:-

“AFFIDAVIT IN SUPPORT

I MRS. FLORENCE OWOLABI, Female, Christian, Nigerian citizen, Trader of Opopogboro street, Iworoko Road, Ado-Ekiti, Ekiti state do hereby make oath and say as follows:-

1. That I am the Managing Director of the Plaintiff/Applicant Company.

2. That I have the authority and consent of the Board of Directors of the Plaintiff/Applicant to depose to this affidavit.

3. That by virtue of my position in the Plaintiff/Applicant Company, I am very conversant with the facts of this case.

4. That the plaintiff/Applicant is a private limited liability engaging in the business of sales and distributorship of all kinds of brewery products such as beer, malt and mineral and having its registered and principal place of business in Ado-Ekiti, Ekiti State”

5. That the Defendant/Respondent is a banking institution engaging in all varieties of commercial banking with its registered and head office in Lagos and having branches throughout Nigeria including Ado-Ekiti, Ekiti State.

6. That the plaintiff/Applicant has a Customer/Banker relationship with the Defendant/Respondent at its branch in Ado-Ekiti where it operates the following 3 accounts; A/C No.:0891 047123218; A/C No.:089 1047123315 and A/c No.:089104676921.

7. That in the course of the relationship the Defendant/Respondent granted to plaintiff/Applicant some credit facilities for the running of the business of the Plaintiff/Applicant by purchasing large volume of supply of brewery products from Guinness Nigeria Plc and Nigeria Breweries.

8. That however due to unforeseen attack on the business fortunes of the plaintiff/Applicant by vandals, armed robbers and bandits resulting into huge loss of finance, the business of Applicant suffered serious setback.

9. That as a result of this setback the Applicant could not effectively meet its financial obligations to the Defendant/Respondent.

10. That the Defendant/Respondent was aware of the precarious and dwindling financial fortunes of the Plaintiff/Applicant as the Branch Manager of the Defendant/Respondent always have some interactive meetings with the Defendant/Applicant Managing Director on way forward.

11. That to demonstrate the willingness of the Plaintiff/Applicant to settle the indebtedness it paid into its account with the Respondent, entire judgment sum of N19, 888, 301.13 it realized from the Insurance Company that insured the Applicant’s building against acts of vandalism and destruction by fire upon being paid the judgment sum.

12. That a copy of the Plaintiff/Applicant’s Solicitors letter dated 12/6/07 expressing the willingness and readiness of the Plaintiff/Applicant to pay the aforementioned judgment sum to settle the indebtedness is herewith exhibited and marked Exhibit ‘A’.

13. That notwithstanding the payment of the above judgment sum to the Respondent the amount allegedly owed by the plaintiff/Applicant was not accurately ascertained by the Defendant/Respondent.

14. That the Defendant/Respondent has not been furnishing the Applicant with up to date Statement of its Account in spite of demands made by the applicant.

15. That the Applicant was therefore surprised to receive the Defendant/Respondent’s Solicitors letter demanding for payment of an outrageous amount of N81, 334,065.67; N49, 741, 727 .47; and N5, 860,731 .50 respectively on the 3 accounts as at 4/2/09.

16. That a copy of the Defendant/Respondent’s Solicitors letter is exhibited and marked Exhibit ‘B’.

17. That I know as a fact that the total amount contained in exhibit ‘B’ is not a true reflection of the indebtedness of the Plaintiff/Applicant.

18. That upon enquiry at the Respondent Branch at Ado-Ekiti after receiving Exhibit ‘B’, it was discovered that the amount of N5, 860; 1.50 stated as owning on A/C No.: 0891046769211 were incorrect and overblown.

19. That the true and correct amount owning on this particular account is N55, 000.00 which had since been fully liquidated and not a hyper inflated amount of over N5 Million being demanded by the defendant/Respondent.

20. That there is need to allow the Plaintiff/Applicant’s Auditor to carefully scrutinize the books of account of the Defendant/Respondent in respect of the Plaintiff/Applicants account for proper and accurate determination of the precise amount if any owed by the Applicant.

21. That the accounts of the Plaintiff/Applicant with the Defendant/Respondent are fraught with inaccuracies and overcharging of spurious interest and management fees.

22. That unless restrained and Respondent will go ahead to carryout the instruction it gave to its solicitors as contained in Exhibit to “realize the securities pledged as clattered” (sic) when the actual indebtedness is uncertain and unascertainable.

23. That the Plaintiff/Applicant will suffer serious and irreparable injury and loss if this application is not granted as the defendant/Respondent will disposes (sic) off at a ridiculous price the Applicant’s property worth millions of naira.

24. That the balance of convenience (sic) is in favour of the Applicant.

25. That the plaintiff/Applicant undertakes to pay damages the order ought not to have been granted.

26. That it is in the interest of justice to grant this application.

27. That I depose to this affidavit in good faith.”

The Respondent deposed to a counter affidavit as follows: – (See pages 19 – 21 of the record of appeal).

”COUNTER AFFIDAVIT

I, OLAKUNLE AGBEDE, Male, Christian, Nigeria Citizen, Banker of Wema Bank Plc, Ado-Ekiti Ekiti State do hereby make Oath and state as follows:-

1. That I am the Relationship Management Officer of Wema Bank Plc, Ado-Ekiti Branch.

2. That I have the authority and consent of the Defendant/Respondent to depose to this affidavit.

3. That I have read the affidavit in support of the motion on notice for interlocutory injunction against our Bank filed by the plaintiff.

4. That paragraphs 1, 2, 3, 4, 5, 6, and 7 of the affidavit are correct while the rest are false and concerted (sic) stories.

5. That in specific denial of paragraphs 8, 9, and 10 of the affidavit in support defendant states that they are unaware of the said predicament expressed by the plaintiff/Applicant.

6. That in response to paragraph 10 of the affidavit, I verily know that the staffs of the Defendant normally visit the plaintiff/Applicant to advise her on the need to comply with her agreement with the Bank on the repayment of the facilities advanced to her which advise she did not adhere to and invariably leading her into the present situation she finds herself with the bank.

7. That in response to paragraphs 11, 12 and 13 of the affidavit there is nowhere in any of the statement of accounts of the plaintiff with the Bank in which the said sum of N19, 888,301.13 purportedly paid is reflected and Exhibit “A” attached to the affidavit is not an evidence of such payment.

8. That I verily know that the plaintiff/Applicant operates the following accounts with the Defendant/Applicants:

(1) Florence (sic) Owolabi Nig Ltd Act. No.: 0891046769211 (sic)

(2) F. Owolabi Ent. Ltd. Nig. Brew Rel. Act. No. : 089 1047 123315

(3) F. Owolabi Ent. Lt. Guinness Rel. Act. No.: 089 1047 123218

9. That on this various accounts facilities in form of stock replacement facility was granted the plaintiff to facilitate the advancement of her business which was majorly with Nigeria Breweries Plc and Guinness Plc.

10. That I verily know before the advancement of these facilities to the plaintiff/Applicant she pledged two of her properties one at Iworoko road, Ado-Ekiti and the other at Isan Road, Ilafon Ekiti.

11. That when the plaintiff/Applicant came to the Bank to complain about Exhibit ‘B’ that is the letter from the legal firms of Ayoola Adewakun & Co. she was told that the figure concerning Account No.: 089 1046769211 where she was credited to be indebted to the tune of N5, 860, 731.50 as at 4/02/09 was an error but only about N55, 000.00 which she had already liquidated as at date.

Herewith is the statement of the said account marked Exhibit ‘A’.

12. That I verily know that the plaintiff/Applicant is still indebted to the Bank in the two remaining accounts as follows:-

(1) A/C No.: – 0891047234425 N54, 097, 188.23k as at 30/05/2009. The statement is attached and marked Exhibit ‘B’.

(2) A/C No.:- 0891047123218 N81, 334, 065.67 as at 29110/2008. The statement of account is attached and marked Exhibit ‘C’.

13. That in summary, the Applicant is up to date indebted to the Defendant/Respondent to the tune N135, 3331, 254.40 (sic) and her said indebtedness is adversely affecting the operation of the Bank.

14. That what the applicant referred to as “spurious charges” are normal banking charges on facilities obtained from the bank as approved for all bank the Central Bank of Nigeria (CBN).

15. That I verily know that paragraph 14 of the affidavit in support of this application can never be correct as the plaintiff by the nature of the facility granted he is in dairy check up of her statement of account with the Bank.

16. That I verily know that the Applicant is fully conscious of the terms of agreement of the disbursement of facilities granted her and the implication of breaching the terms.

17. That this application is just an attempt by the Applicant who is heavily indebted to the bank as stated in paragraphs 12 and 13 above to delay the execution of the terms of agreement signed with the Bank consequence upon the breach of the said terms of agreement.

18. That it is in the interest of justice and sanctity of Banker/customer relationship to refuse this application.

19. That I swear to this affidavit in good faith believing the contents to be true and in accordance with the oath Act.

In response to the Respondent’s counter affidavit, the Appellant filed an 18 paragraph Further and Better Affidavit. They are hereby reproduced: – (see pages 36 to 38) of the record of appeal.

1. “That I am the Managing Director of the Board of Director of the plaintiff/Applicant.

2. That I have the authority of the Board of Director of the Plaintiff/Applicant to depose to this affidavit’

3. That by virtue of my position in the plaintiff/Applicant company, I am very conversant with the facts of this case.

4. That I have seen and read along with my solicitors the counter affidavit of the Defendant/Respondent.

5. That contrary to Paragraph 6 of the counter affidavit, the plaintiff/Applicant did not at any time turn down any advise of the Defendant/Respondent, rather the strict adherence of the plaintiff/Applicant did not know were fraudulent further compounded the financial woes of the plaintiff/Applicant.

6. That contrary to paragraph 7 of the counter affidavit, N10, Million was cleared out of the over 18 Million paid to the Defendant/Respondent.

7. That out of the N10 Million, the Plaintiff/Applicant was allowed a N3 Million draw tagged ‘transaction dynamics’. Copies of the plaintiff/Applicant’s letter acknowledge the ‘transaction dynamics’ is herewith exhibited as Exhibit C.

8. That contrary to paragraph 7 it is due to the fraudulent mismanagement of the Plaintiff/Applicant’s account that the payment is not reflected in the statement of account.

9. That contrary to paragraph 10 of the counter affidavit, the plaintiff/Applicant’s did not pledge any property either at Iworoko Road, Ado-Ekiti or at Isan Road, Ilafon Ekiti, the Plaintiff/Applicant has no property at Ilafon Ekiti.

10. That contrary to paragraphs 12 and 13 of the counter affidavit, the Plaintiff/Applicant is not indebted to the Defendant/Respondent in the amount claimed as the states of account of the Plaintiff/Applicant remain unascertainable.

11. That the purported indebtedness of the Plaintiff/Applicant is as a result of the fraudulent mismanagement of all the account of the plaintiff/Respondent.

12. That contrary to paragraph 15 of the counter affidavit, the plaintiff/Applicant did not at anytime embark on daily check up of statement of account as the Defendant/Respondent at all times refused and neglected to furnish the Plaintiff/Applicant with its statement of account.

13. The Plaintiff/Applicant was only furnished with a statement of account after persistent demand, pursuant to which various anomalies and spurious dealings were discovered.

14. That upon the discovery of these irregularities and illegal dealings on the account, the Plaintiff/Applicant immediately vide its letters of 13/9/07 and 28/9/07 complained of the irregularities and anomalies in its account to which the Defendant/Respondent refuse and neglected to respond. Copies of the letter of complaints are exhibited as exhibits D & E respectively.

15. That contrary to paragraphs 16 & 17 of the counter affidavit the plaintiff/Respondent did not at anytime breach any term or condition of any facility granted by the defendant/Respondent, rather the Defendant/Respondent fraudulently mismanaged the various accounts of the plaintiff/Applicant.

16. That the statements of accounts exhibits A – C in support of the counter affidavit do not represent the correct position of the account of the plaintiff/Applicant.

17. That I depose to this affidavit in good faith and in accordance with the Oaths Act.”

From the above stated facts contained in the affidavit evidence, the Appellant contended that the trial court failed to take into consideration the facts as deposed to by her in coming to the conclusion that the balance of convenience is in favour of the Respondent when there is no material fact in the Respondent’s affidavit evidence to arrive at such decision.

While it is in dispute in the instant case that, the legal right to the mortgaged property is not in contention and also the fact that it is threatened. The Appellant operated three (3) different accounts with the Respondent on all the accounts which were secured by the building properties of the Appellant. The Respondent’s solicitor by letter dated 16th/2/2009 called on the facility and threatened to dispose of the properties pledged as collateral for the facilities alleging a total amount of N135 254 254:40k owed by the Appellant. The Appellant did not deny the facility but disputed that the amount is overblown and unascertained.

The learned trial judge having considered the affidavit evidence before him, found that there are serious triable issues which is far from being frivolous, but found that the balance of convenience is in favour of the Respondent, the Appellant having admitted the facility granted to her by the Respondent. That if the application is granted, the Appellant will be denying other customers of the facility tied down by her. But can this finding be faulted?

It is enough once an Applicant established that he has a good arguable claim, or serious question to be tried, then the grant or refusal of the application becomes a matter for the exercise of the court’s discretion on a balance of convenience.

In determining the balance of convenience in the consideration of an application for Interlocutory Injunction, the trial court is expected to pose one or two questions: who will suffer more inconvenience if the application is granted? Who will suffer more inconvenience if the application is not granted? The trial court has a duty to provide an answer to the questions, and in doing so it must allow itself to be guided by the facts before it. The balance of convenience between the parties is a basic determinant factor in an application for Interlocutory injunction. In the determination of this factor, the law requires some measurements of the scale of justice to where the pendulum tilts. While the law does not require mathematical exactness, it is the intention of the law that the pendulum should really tilt on the Applicant. And the pendulum can only tilt in favour of the Applicant of the court comes to the conclusion that better justice or more justice in the matter will be done if the application is advantages of granting the injunction will which are really the odds.

In the instant case, the learned trial judge did consider, and weigh the balance of convenience in the imaginary scale of justice to see where pendulum tilts and came to the conclusion that the Appellant did not deny the fact that she obtained loan facility from the Respondent and the Respondent must meet its obligation to other customers because if the application is granted the Appellant will be denying other customers of the facility tied down to her and further stated that it is settled that where damages can sufficiently compensate for the wrong sought to be prohibited, interlocutory injunction should lot be granted. But, if the wrong being perpetrated or feared, may become irreparable outside the scope of pecuniary compensation it cannot be said that damages may sufficiently compensate for this.

Based on the analysis, I do not think, I can fault the above conclusion of J.O. Adeyeye, as it clearly borne out from the affidavit evidence before the court. The learned counsel for the Appellant made heavy weather on this finding of the learned trial judge that the Respondent must meet its obligation to other customers and the balance of convenience is in refusing the application because the Appellant will be denying other customers of the facility tied down by her if the application is granted. He argued that paragraph 13 of the Respondent’s counter affidavit which in summary is that the Applicant is up to date indebted to the Defendant/Respondent to the tune of N135, 333,254.40 and her said indebtedness is adversely affecting the operation of the Bank, is bereft of those finding by the learned trial judge. With due respect to the learned counsel, I do not agree. What does it, mean -when the Respondent stated that the Appellant’s indebtedness is adversely affecting the operation of the Bank? Is it in anyway different from the finding of the learned trial judge that the Appellant is enjoying facilities of the other customers of the Bank, therefore granting the application will deprive other customers of the facility tied down to the Appellant? This pronouncement by the learned trial judge is a product of judicial analysis of the facts disposed to in the respective affidavit evidence of counsel. It is not a matter of address by learned counsel.

It is stated that the mere fact of a serious issue to be tried is not of itself sufficient to warrant the grant of interlocutory injunction. This must be coupled with the fact of establishing the balance of convenience in the Applicant’s favour and a further negation of adequate compensation. In the instant case, the learned trial judge found that damages can sufficiently compensate for the wrong sought to be prohibited by the interlocutory injunction sought.

With the jurisdiction of the court to grant interlocutory injunction being equitable, the manner of the exercise of the discretion depends upon the precise nature of the particular rights which is sought to be protected and upon all materials and circumstances. See BUHARI V. OBASANJO (2003) 17 NWLR (PT.850) 587: AYORINDE V. ATTORNEY GENERAL, OYO STATE (1996) 3 NEWLR (PT.434) 20: OCHUDO V. OSENI (SUPRA); TRANSTON PROPERTIES LTD.V. FBN PLC (2007) ALL FWLR (PT.392) 1954: AND ISAMADE V. OKEI (1998) 2 NWLR (PT.538) 455. Thus, the relief of interlocutory injunction which has the capacity of arresting the res in dispute, pending the determination of the matter, deserves a full dispassionate and proper consideration. This is because its transient effect is just as good as the relief of perpetual injunction as long as it lasts, that is to Say as long as the matter is not finally disposed of.

Giving the facts of this case, it is my considered view that the learned trial judge has exercised his judicial discretion bona fide. To interfere with the orders contained in the ruling of 22nd October, 2009 is to fetter that discretionary power of the learned trial judge.

Mr. F. Omotosho Esq. also argued that the non filing of the statement of claim does not occasion any delay on the part of the Appellant warranting the conclusion of the learned trial judge that the Appellant is only interested in the injunctive relief as the non filing of pleadings is not fatal to the grant of interlocutory injunction.

With due respect to the learned counsel, it is not the conclusion of the learned trial judge that the non firing of the statement of claim does occasion a delay on the part of the Appellant leading to the conclusion that Appellant is only interested in the injunctive relief. The learned trial judge only stated obiter in passing that the Appellant has not taken any further steps to fire the statement of claim eight months after the fling of the writ of summons and went further to state that he is not mindful of the fact that the Applicant need not file her statement of claim before bringing this application, but was of the view that filing a statement of claim would have shown some level of seriousness in the pursuit of the claim and that this would enable the Defendant to join issues with the Respondent thereby accelerating the hearing of the case. He is right. He is entitle to make such analogical deductions after stating the position of the law of the issue, which is that pleadings are not necessary before an application for interim or interlocutory injunction can be brought or granted. Let me quickly add that sometimes they may be desirable. See MOBIL OIL V. AGADAIGHO (1988) 2 NWLR 9PT.77) 383 @ 996: OPARA V. IHEJIRIKA (1990) 6 NWLR (PT.156) 291 @ 303.

In the light of the above discussion, the Appellants two issues for determination are therefore resolved against her. The appeal is without merit and it is hereby dismissed. The ruling of the trial court delivered on the 22nd October, 2009 is hereby affirmed. The Respondent is entitled to costs. I order costs of N30, 000:00k in favour of the Respondent against the Appellant.

CHIDI NWAOMA UWA, J.C.A: I was privileged to read in advance the judgment delivered by my learned brother UWANI MUSA ABBA AJI, J.C.A.

I agree totally with his Lordship’s reasoning and conclusion hat the appeal is without merit and same is also dismissed by me. I affirm the Ruling of the trial court delivered on 22/0/09. I abide by the order made as to costs in the leading judgment.

HARUNA M. TSAMMANI, J.C.A: I had the privilege of reading before now the judgment delivered by my learned brother, Uwani M. Abba Aji, J.C.A.

My learned brother comprehensively considered all the issues raised in the appeal and came to the conclusion that the appeal is without merit. I entirely agree with the reasoning and conclusion arrived at by my learned brother in dismissing the appeal and affirming the ruling of the trial court. l, also dismiss the appeal and affirm the ruling of the trial court delivered on he 22nd of October, 2009. I endorse the order as to cost.

CHIDI NWAOMA UWA, J.C.A: I was privileged to read in advance the judgment delivered by my learned brother UWANI MUSA ABBA AJI, J.C.A.

I agree totally with his Lordship’s reasoning and conclusion that the appeal is without merit and same is also dismissed by me. I affirm the Ruling of the trial court delivered on 22110/09. I abide by the order made as to costs in the leading judgment.

HARUNA M. TSAMMANI, J.C.A: I had the privilege of reading before now the judgment delivered by my learned brother, Uwani M. Abba Aji, J.C.A.

My learned brother comprehensively considered all the issues raised in the appeal and came to the conclusion that the appeal is without merit. I entirely agree with the reasoning and conclusion arrived at by my learned brother in dismissing the appeal and affirming the ruling of the trial court. I also dismiss the appeal and affirm the ruling of the trial court delivered on the 22nd of October, 2009. I endorse the order as to cost.

Appearances

Appellant not represented.For Appellant

AND

Mr. E.K. Omosebi, Esq., holding brief of Owoseni Ajayi, Esq.For Respondent