- G. C. NIGERIA LIMITED v. ALHAJI HASSAN BABA
In The Court of Appeal of Nigeria
On Wednesday, the 22nd day of January, 2003
MAHMUD MOHAMMED Justice of The Court of Appeal of Nigeria
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
BABA ALKALI BA’ABA Justice of The Court of Appeal of Nigeria
- G. C. NIGERIA LIMITED – Appellant(s)
ALHAJI HASSAN BABA – Respondent(s)
DALHATU ADAMU, J.C.A. (Delivering the Leading Judgment): The respondent herein (as plaintiff) instituted this case against the appellant (as defendant) before the High Court of Justice, Kaduna State sitting at Kaduna claiming the following reliefs:
“1. A declaration that the acts of the defendant through its agents in creating a thorough-fare in the plaintiff’s farmland situate at Fauta Village along Sabon Birni Kaduna without the permission/consent or authority of the plaintiff is unlawful and illegal.
2. A declaration that the said acts of the defendant in creating a thorough fare in the plaintiff’s farm land constitutes trespass and illegal encroachment on the plaintiff’s farm land.
3. An order of injunction in perpetuity restraining the defendants, its agents and privies from carrying out any act which constitutes trespass on the plaintiff’s farmland situate at Fauta village along Sabon Birni Road, Kaduna. (see page 2 of the record of proceedings).”
The writ of summons was filed on 9/8/01, along with a motion ex-parte seeking for an interim order of injunction restraining the defendant/appellants its servants, agents etc from further construction of road (thorough-fare) through the plaintiff/appellant’s farmland and from excavating sand/stone in the said farmland pending the determination of the substantive motion on notice for interlocutory injunction. Copy of the substantive motion on notice together with an affidavit of urgency was attached to the ex parte motion.
Upon its being served with the motion on notice for the interlocutory injunction, the defendant/appellant (hereinafter called the appellant), entered a conditional appearance through its learned counsel K. C. Ochu, Esq., and filed a counter-affidavit. The plaintiff/respondent (also hereinafter called the respondent), also filed a further and better affidavit. The learned trial Judge Dalhatu Jaafaru J., who heard the learned counsel for the parties only on the motion on notice for the interlocutory injunction, in a considered ruling dated 22/1/2002 granted the interlocutory orders sought by the respondent.
The appellant, being dissatisfied with the ruling of the learned trial Judge appealed against it in this court. Four grounds of appeal were filed by the appellant in his notice of appeal and in the appellant’s brief of arguments which was filed in this court and adopted at the hearing of the appeal, the following four issues are distilled as calling for determination:
“3. Issues For Determination:
3.1 Whether the learned trial Judge was right in granting an order of interlocutory injunction against the appellant even when the actual and precise area of land which the injunction is to operate is not certain.
3.2 Whether the learned trial Judge was right in granting an order of interlocutory injunction against the appellant even in the face of unchallenged and admitted affidavit evidence to the effect that the appellant’s piece of land is different from the respondent’s piece of land.
3.3 Whether the respondent established a strong prima facie case that he is entitled to the right, the violation of which he complain.
3.4 Whether the trial Judge was right in granting an injunctive relief against the appellant who is not a trespasser?.”
In the respondent’s brief which was deemed filed by this court on 6/6/02, only two issues for determination are formulated and they are as follows:
”3.1 Whether having regard to the state of affidavit evidence before the lower court, it can be rightly said that there is uncertainty as to the area of land in respect of which the respondent sought and was granted the order of interlocutory injunction by the lower court.
3.2 Whether going by the reliefs sought by the respondent in the lower court as manifested in the endorsement to the writ of summons and the affidavit evidence, the respondent made out a case for the grant of the injunctive orders by the lower court.”
It must be appreciated that the respondent has attempted to relate or marry his two issues to the grounds of appeal (in paragraph 4 of his brief). Furthermore, it is my humble view that the issues formulated in the two briefs are substantially the same and it can be safely said that the parties are in mutual agreement on the issues calling for determination in the appeal. For the purpose of this judgment however, I will adopt the issues formulated in the respondent’s brief which are expressly related to or predicated on the grounds of appeal (in the brief). In any case, since the issues in both briefs are substantially the same and the respondent’s two issues are a mere summary of and in fact cover the areas or points canvassed under the appellant’s four issues, the parties can be said to be in accord on the issues involved in the case. It is pertinent to point out at this stage that the appellant issues 1 and 2 (as reproduced above) are mere repetition of the same point namely whether the precise area of the land in dispute is certain or whether or not the piece of land claimed by both parties was the same. Both the two issues are in my humble view bordered on the identity of the land in dispute. In the same way, issues 3 and 4 of the appellant are both on the principles for the grant of an order of interlocutory injunction, and on whether it was rightly granted by the lower court under the circumstance of the present case. In view of my above analysis of the issues in the two briefs or reply thereto, I will consider the appellant’s four issues as unnecessarily repetitive. In any case, since I have already stated that the issues in the two briefs are substantially the same and since the appellant’s issues are also covered by the grounds of appeal and are not therefore, prolix, I will still adopt and consider them for the purpose of this judgment. In doing so however, I will avoid the repetitions caused by the appellant’s counsel by treating or dealing together with and merge the two sets of issues which are on the same points. Thus, I will deal with or merge issues 1 and 2 together.
Similarly issues 2 and 4 which are on the same point will also be merged and be dealt with together. This step will avoid the appellant’s counsel repetitive tendency and in effect reduce their four issues into only two as lightly canvassed or formulated in the respondent’s brief of argument. I will now proceed to consider the four issues of the appellant as merged together and narrowed down into two (2) issues.
Under issues 1 and 2 of the appellant’s brief, the main thrust of the appellant’s submission is on the uncertainty of the identity of the respondent’s farmland which is also said to be different from that of the appellant. In view of the uncertainty about the identity and precise boundaries of the land in question, it was wrong for the learned trial Judge to grant an order of interlocutory injunction in favour of the respondent who did not properly identify the land for which he claimed to have right. It is pointed out that the sale agreement exhibited by the respondent did not show the precise area or boundaries of the land claimed by the said respondent. There was also no survey plan tendered or exhibited by the said respondent in his application for interlocutory injunction. Thus it is pointed out in the brief that the learned trial Judge merely relied on the averment in paragraph 3(b) of the supporting affidavit and the sale agreement, and arrived at a wrong conclusion that the area or dimension of the respondent’s land was certain- see pages 30, 41 and 42 of the record of proceedings. The brief relies on the trite principle in land claims that for such claim to succeed, the plaintiff must show with certainty the identity of the land he claims ownership of. This involves the actual area or dimension of the said land as well as its boundaries and other features, if any. It is also the law that an interlocutory injunction would not be granted where the actual area of the land litigated upon and its identity cannot be ascertained with certainty and mathematical precision- see Oguchi Onea & Ors v. Nwaeke Egbeichi & Ors. (1974) 1 All NLR (Pt.1) 290; Olusegun Rotimi v. O. Macgregor (1970) All NLR 320-323 and Chief Yesifu Onini & 1 Or. v. Wahabi Gbadamosi (1971) All NLR 356-360 cited in the appellant’s brief in support of the argument.
In the second arm of the appellant’s submission under the twin issues, it is pointed out in the brief that the piece of land where the appellant is excavating stone and laterite is situate at Rubu Village Afaka district of Igabi Local Government Area while the respondent’s piece of land is at Fauta Village along Sabon Birni Road, Kaduna- see pages 19-21 and page 16 respectively of the record of proceedings.
The respondent’s counsel also admitted in his submission that the appellant piece of land where they are quarrying stone is different from that of the respondent’s- see page 33 of the record.
Yet, the brief pointed out, despite this admission and the interlocutory of the identity of the farm land in dispute, the learned trial Judge wrongly proceeded to grant an interlocutory order of injunction against the appellant (see page 41 of the record). Reliance is also placed by the appellant on this point on the case of Onea v. Egbeichi (supra) which is said to be very instructive. In that case, (the citation of which is wrongly given in the brief), it is pointed out that the learned trial Judge refused to make an order of interlocutory injunction on the ground that no survey plan was exhibited and the identity of the land in dispute was not certain which made it impossible to know the exact area of land to which the injunction applied for would operate. The Supreme Court upheld the reasoning and ruling of the learned trial Judge. It is pertinent to draw the attention of the learned counsel for the appellant to always give correct citation of the case(s) he cites and relies upon in support of his case. The citation given in the appellant brief for the case cited as (1974) All NLR p. 261-263 is wrong and misleading. The correct citation should be (1974) 1 All NLR (Pt. 1) 290-292. The appellant’s brief pointed out that the above decision of the Supreme Court was cited by the appellant before the learned trial Judge, but he deliberately refused to allow it even on the fact of various affidavit evidence showing that the appellant’s land where they excavate stone and laterite was quite different from that of the respondent’s. Finally, this court is urged in the appellant’s brief to hold that the learned trial Judge erred when he granted the order of interlocutory injunction against the appellant in the face of unchallenged and admitted affidavit evidence to the effect that the appellant’s land was different from that in respect of which the respondent claims are based.
In the respondent’s brief which identified or formulated only two issues for determination in the appeal, the above submissions in the appellant’s brief are responded to or covered under issue 1 (of the said respondent’s brief). It is the respondent’s submission that on the state of the affidavit evidence before the trial court, there is no doubt or any uncertainty as to the precise area of land for which the orders of injunctions were sought for by the respondent and granted by the lower court. The respondent’s piece of land was amply described on the face of the motion on notice as a farmland situate and lying at Fauta Village along Sabon Birni road, Kaduna, the dimension and boundaries of which are adequately given or provided in paragraph 3(b) of the further and better affidavit. With the sufficient description of the respondent’s land, the subject matter of the dispute or claim, the brief submits that the filing of a survey plan is no longer necessary- see Kupeji v. Kogbe (1961) All NLR,(Reprint) 122 at 123 cited in support of the preposition. The piece of land claimed by the appellant, which is different from the respondent’s piece of land is also well described in and ascertained in the affidavit evidence as lying and situate at Rubu Village at Afaka District of Igabi Local Government Area of Kaduna State. Consequently, it is argued in the respondent’s brief that since there is sufficient evidence as to the specific piece of land for which the respondent sought for and obtained the injunctive order at the lower court, the cases of Oguchi Onea v. Nwaeke Egbeichi (supra) and Rotimi v. Macgregor (supra) cited and relied upon by the appellant (in its brief) are not relevant or applicable to the facts of the present case. It is pointed out that there is a difference on the description of land required for the purposes of an interlocutory injunction and that, (i.e., the requirement) needed for the purposes of a permanent or perpetual injunction. Thus, it is argued that the description given in the instant case for the grant of an interlocutory injunction was sufficient (see paragraph 3(b) of the further and better affidavit and on the face of the motion paper). See also the case of Bashorun v. Ogunlewe (2000) 1 NWLR (Pt. 640) 221 at 219 cited in support of the contention. The respondent’s brief finally urged this court in the light of the above submissions to hold that the lower court was perfectly right in holding that there was sufficient description of the land in dispute and consequently a survey plan was not necessary.
From the above submission in the two briefs, the following two crucial issues or questions need to be resolved or answered:
“1. Whether the respondent’s land, the subject of the litigation has been properly identified or described in the affidavit evidence in support of or against the application before the lower court.
2. Whether the lower court in the present case adhered to the principle or condition for the grant of orders of interlocutory injunction.”
On the first of the above issues, it is pertinent to observe that the respondent as plaintiff and applicant in the motion for interlocutory injunction did not file his pleadings, (i.e., statement of claim) before making his application. Consequently, the appellant also did not file his statement of defence. Thus, at the stage of making the application for interlocutory injunction, pleadings were not filed and issues were also not joined. Consequently, at the time of the application, there was no sufficient or enough materials for the court to make use of in determining whether or not the applicant/respondent had a legal interest in the subject matter to be protected by the order of injunction he sought. In other words, if pleading had been filed in the present case before the application was made, it would have afforded enough or sufficient materials for the lower court to use in deciding the application for interlocutory injunction. It was that failure to file the pleadings on the part of the applicant/respondent that caused the uncertainty on the precise area of the land in which the injunction was or were sought for.
The law is settled that in an application for an interlocutory injunction pending trial, (as in the instant case) at the trial court, the trial court makes use of the pleadings as well as the affidavit evidence filed in support of or against the application. In the instant case, only the affidavit evidence was before the court and as such, there were no sufficient materials before the said court for the proper determination of the application- see Oyeyemi v. Irewola L.G. Ikire (1993) 1 NWLR (Pt. 270) 462; Hashim v. Minister, FCT (2002) 15 NWLR (Pt. 789) 159 at 171; Gever v. China (1993) 3 NWLR (Pt. 315) 97 and Isamade v. Okei (1998) 2 NWLR (Pt. 538) 455. Even though there is no strict requirement for the filing of pleading before making the application for injunction, such pleadings are relevant in giving detailed particulars on the facts and other salient features of the applicant’s case and can convince the court in the exercise of its discretion judiciously or judicially in his favour.
An application for an injunctive order, whether interim or interlocutory is equitable in nature and as such, the court is required to ensure that all conditions for its grant are satisfied. It cannot do so without knowing all the facts and antecedent of the case especially, where it has doubt about the applicant’s right or the nature of the subject matter (res) which in the instant case is a farm land, the identity, area, boundary, and other features must under the law, be accurately defined and ascertained with mathematical precision or accuracy.
This can better be achieved by filing a survey plan which is usually filed in or with the pleadings.
I must state here that it is not in every land dispute that a survey plan is required for proof of the identity of the land in dispute and that even where such a plan is not filed, the identity of the land can be properly ascertained if there is a proper description of the said land which will show its area, boundaries, location and other features in such a way that a surveyor can, based on such description, draw up or produce an accurate plan of the land- see Anabaronye v. Nwakaihe (1997) 1 NWLR (Pt. 482) 374; Nwoke v. Okere (1994) 5 NWLR (Pt. 343) 159; Atolagbe v. Sorun (1985) 1 NWLR (Pt. 2) 360. Thus, it is not in all or every land case that the absence of a survey plan is or will be fatal to the plaintiff’s case. A survey plan will not be necessary and can be dispensed with in the following cases:
“(a) Where there is a proper description of the land;
(b) Where there is no dispute as to the boundaries of the land; and
(c) Where the parties are not in any doubt as to the boundaries of the land- see Atolagbe v. Sorun (supra); Etiko v. Aroyewun (1959) SCNLR 308; Arabe v. Asanlu (1980) 5 -7 SC 78.” However, despite the above principle which gives specific instances of exception to the general rule that a survey plan has or must be filed by the plaintiff in land cases in order to ascertain the precise or accurate boundaries of the area and location or other features of the land in dispute, the courts would or should insist on filing of a survey plan when dealing with an application for interlocutory injunction pending trial. The rationale for this requirement or insistence is as given by the learned trial Judge in Oguchi Onea & Ors v. Nwaeke Egbeichi & Ors. (supra, cited and relied upon by the appellant) which was agreed with and endorsed by the Supreme Court. The reason given by the learned trial Judge in that case which was approved by the apex court was as follows:
“It is not denied that at the time this motion was brought, the applicants had filed no plan which would enable this court to determine and identify the area of land where the injunction could operate. The necessity for this has become more obvious since the defendants in their counter affidavits are saying that their own lands are different from that of the plaintiff/applicant’s. There is in my mind some doubt as to the exact areas of land an injunction, if granted will encompass …”
It is my humble view that the above dictum of the trial Judge which by approval has metamorphosed into that of the Supreme Court aptly applies to the present case and makes it uncertain or doubtful, in the absence of a survey plan, for the lower court to know the exact area for which the interlocutory injunction sought by the respondent would operate or encompass. Consequently, I do not agree with the respondent’s submission (in his brief) that the cases (i.e. Onea v. Egbeich (supra), and Rotimi v. Macgregor (supra) cited and relied upon by the appellant are not relevant or applicable to the facts of the present case. In the later case of Ichu v. Ibezue (1999) 2 NWLR (Pt. 591) 437 at 447, the facts of which were on all fours with the present case, this court held a similar view when it pronounced (per Salami, J.C.A.) as follows:
“An order of injunction, be it interim, interlocutory or perpetual can only be made in respect of a parcel of land with a definite or ascertainable boundary. At the stage the respondent herein applied for an interlocutory injunction, pleadings have not been exchanged not to talk of adducing evidence in respect of the parcel of land in dispute. It is therefore impossible for the appellants to ascertain the identity of the land to which the order for interlocutory injunction is attached. Hence, it is incumbent on the respondent to attach a survey plan of the land in dispute… where the boundary of the land can be otherwise established. In the alternative, he defers canvassing the application until some evidence has been led ascertaining the boundary of the land in respect of which the order for an injunction is sought. The bringing of the application was hasty and the grant by the learned trial Judge, in the circumstance, was premature. The appeal consequently succeeds on the ground that the identity of the land in dispute is not proved.” (italics mine).
I am inclined to adopt and apply the principle in the above quoted pronouncement of this court to the present case. There is no reason why I should depart from it.
Consequently, the first of the above crucial issued (as reformulated) must be and is hereby answered in the negative and I hold that the respondent herein, who did not file a survey plan along with his motion for interlocutory injunction and did not give sufficient description, in his supporting and further affidavits of the land in respect of which the injunction he sought at the lower court would operate was not entitled to the order of interlocutory injunction granted by the said lower court. In my view, this is one of the exceptional cases in which this court as an appellate court can interfere with the trial court’s exercise of discretion, where such discretion was based on wrong principle or is tainted with irregularity and it amounts to an error of law- see University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143; 7 Up Bottling Co. Ltd. v. Abiola & Son Ltd. (1995) 5 NWLR (Pt. 381) 257; University of Lagos v. Olaniyan (1985) 1 NWLR (Pt. 1) 156 and Josiah Cornelius Ltd. v. Ezenwa (2002) 16 NWLR (Pt. 793) 298 at 316 – 317.
On the second of the above crucial issues, it is pertinent to point out that the remedy or order of an interlocutory injunction is an equitable one, restraining the person to whom it is directed from doing the thing or things specified in the order pending the hearing and determination of the substantive suit. It is available to restrain the defendant from repetition or continuance of a wrongful act in relation to the subject matter of the suit (the res) and to maintain the status quo between the parties pending the determination of the substantive suit- see Egan v. Egan (1975) 2 All ER 167; Adenuga v. Odumeru (2001) 2 NWLR (Pt.696) 188 SC; (2001) 83 LRCN 64 at 78; Emerah v. Chiekwe (1996) 7 NWLR (Pt. 462) 536; and Alexander Marine Management v. Koda International Ltd. (1999) 1 NWLR (Pt. 585) 40 at 48.
In an application for interlocutory injunction, the courts consider a number of important factors or issues. These include the following:
“(a) Whether there is or are serious question(s) to be tried.
(b) Whether the applicant has a legal right or interest to be protected in the suit or on the subject matter that warrants the grant or the injunctive order.
(c) Whether the damages that will occur if the act is not restrained by an injunction are irreparable or are such that cannot be adequately compensated in monetary terms if the applicant succeeds at the end of the trial.
(d) Whether the balance of convenience is on the applicants side and more justice will therefore result in granting the application than in refusing it; and
(e) The applicant is required to give an undertaking as to damages- see Obeya Memorial Hospital v. A.-G., Federation (1987) 3 NWLR (Pt. 60) 325; Missini v. Balogun (1968) 1 All NLR 318; Osunde v. Co-operative Bank Ltd. (1995) 7 NWLR (Pt. 410) 682 at 687; Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419; Commissioner of Works Benue State v. Devcon Ltd. (1988) 3 NWLR (Pt. 83) 407; Babatunde v. Olatunji (1994) 4 NWLR (Pt. 339) 448; Ita v. Nyong (1994) 1 NWLR (Pt. 318) 56 and Abiodun Akerele v. Chief Obafemi Awolowo & Anor. (1962) WNLR 220 at 224.”
In addition to the above requirements, all of which must be satisfied before an application for interlocutory injunction can be successful, there are other factors which the court considers before granting the order (e.g the conduct of the applicant and the likely injury or harm that may be caused to the other party by the grant of the injunctive orders). Another important factor considered by the court faced with the application is that the ancillary relief of interlocutory injunction must fall within the scope or purview of the plaintiff/applicant’s claim. See- Ogbonnaya & Ors. v. Adaplan Nig. Ltd. (1993) 5 NWLR (Pt. 292) 147; Akibu & Ors. v. Munira Oduntan (1991) 2 NWLR (Pt. 171) 1 at 10 and Adenuga v. Odumeru (supra at p. 77-78 of the record).
It is also a settled principle of law that in dealing with interlocutory application (which includes an application for interlocutory injunction), the court must be circumspect and neutral by maintaining a balance between the parties and by desisting from making any pronouncement or going into the main issue(s) that will finally determine the substantive case or matter which will still be pending before it. See- Akapo v. Hakeem Habeeb (1992) 6 NWLR (Pt. 247) 266; Oduntan v. General Oil Ltd. (1995) 4 NWLR (Pt. 387) 1; Egbe v. Onogun (1972) 1 All NLR (Pt. 1) 95 and Orji v. Zaria Industries Ltd. (1992) 1 NWLR (Pt. 216) 214.
After setting out the principles, or conditions to be considered in the determination of an application for interlocutory injunction, I will apply them to the facts and circumstance of the present case at the lower court to find out whether it was justified in making its injunctive orders in favour of the respondent. First of all, it is worthwhile to consider the claims of the respondent before the lower court and to compare it with the prayers in the application for interlocutory injunction. In doing this, it will be clearly seen that the orders or reliefs sought by the respondent in his application (at page 15 of the record) are different or are not within the scope or purview of the claims set out in the endorsement in his amended writ (see pages 13-14 of the record). It is to be noted that in the respondent’s claim or reliefs, the basis or substance of his said claim is against the creation of a thoroughfare by the appellant in or across his farmland situate at Fauta Village along Sabon Birni Road, Kaduna without his, (i.e., respondent’s) consent or permission which act is said to be or is described as unlawful and illegal. The respondent for that purpose sought for an order of perpetual injunction to restrain the appellant from further acts of trespass. On the other hand, the said respondent in his motion on notice for interlocutory injunction (in prayer 2 thereof) sought for an interlocutory injunction to restrain the appellant from excavating sand or stone in his said farmland pending the determination of the suit. By this second prayer, in my view, the respondent was seeking for a different relief which was not within the scope of his claims. It must be noted that there is a difference between the acts of creating a road or thoroughfare in the respondent’s farmland and excavation of sand and stone in or from the said land. The issue of excavation of sand and stone as also speculatively introduced by the respondent in paragraph 3(h) of the supporting affidavit where it is averred as follows:
“That if the defendant is allowed to continue with the illegal construction of road in his said farmland, the defendant would proceed to excavate sand/stone e.t.c.”
It is also pertinent to point out in the record in this regard, that the main business or trade of the appellant is the quarrying and excavation of sand, stones and laterite and it would not be fair, just, or equitable to restrain it by an order of interlocutory injunction from carrying on its trade or business of quarrying or excavation as was done by the lower court in the present case. Moreover, apart from the lower court’s failure to consider the above important point which shows that the balance of convenience was not in favour of the respondent, it also failed to take into consideration the title documents and various licenses of the appellant which justify its quarrying or excavation activities on its own land which is different from the respondent’s farmland. If these had been considered by the learned trial Judge, he would have found that the quarrying or excavation activities of the appellant were not unlawful or illegal.
On the respondent’s legal right or interest to be protected by an order of interlocutory injunction, I am also of the humble view that that has not been proved in his scanty (4 paragraphs) affidavit and counter-affidavit and in the absence of a statement of claim (or any evidence adduced in support thereof). In dealing with the condition (i.e. of the appellant’s right or interest) the learned trial Judge in his ruling (at page 4 of the record) merely stated as follows:
“In deciding the first issue, the court is enjoined to look at the affidavit evidence, the pleadings if filed and other documents.
The affidavit of the parties show series of disputes. The writ shows series of claims. It is my view that the applicant has discharged the first burden.”
It is clear from the above that the learned trial Judge did not give proper logical consideration of the first issues or condition for the grant of interlocutory injunction, namely, whether or not the applicant has any legal right or interest in the subject matter to be protected by the order of injunction sought. Rather, he treated the issue in a tardy, one sided, illogical and arbitrary manner and ruled in favour of the respondent without regard or consideration of the appellant position on the issue. In the light of my above consideration of the 2nd of crucial (or reframed) issues, it should also be answered in the negative and resolved in favour of the appellant.
Consequently, the twin issues (issues 1 and 2) of the appellant’s brief must be and are hereby resolved in favour of the said appellant.
The remaining two issues of the appellant, (issues nos. 3 and 4), which as I noted above, correspond with the respondent’s issue No. 2 are on the question whether the respondent has established a strong prima facie case that he is entitled to the right, the violation of which he complains. On my careful perusal of the submission under the said issues, I found them to be either misconceived or a mere repetition of the principles or condition for the grant of an order of interlocutory injunction which I have already tackled in my consideration of issues 1 and 2 of the appellant (as merged and treated together) which correspond with respondent’s issue No. 1. Since I have already dealt with the principles for the grant of an order of interlocutory injunction, it is no longer necessary or desirable to repeat them again or to reconsider them under the appellants issues 3 and 4 (or the respondent’s issue 2). It only suffices to point out that some of the points or arguments raised under the said issues are main issues in the substantive case the type of which I already stated that the courts should refrain from making any pronouncements on so that the courts pronouncement on them would not amount to a prejudgment on issues which are yet to be resolved in the substantive suit. Such issues or questions as raised and argued in both briefs include for example, the absence of consent or approval of the Local Government for the sale transaction (i.e. alienation) of the land which resulted in the sale agreement exhibited by the respondent in support of his application before the lower court and the argument that the appellant was not a trespasser as they were in lawful possession of their land as canvassed respectively under the said issues 3 and 4 of the appellant and the corresponding reply thereto under issue 2 of the respondent. All the arguments or submissions on those points are, in my humble view, either misconceived or premature at the stage of the application for interlocutory injunction- see Onwugbu v. Ibrahim (1997) 3 NWLR (Pt. 491) 110; Queen v. Adaroh (1999) 1 NWLR (Pt. 586) 330 at 337 and North-South Petroleum Nig. Ltd. v. FGN (2002) 17 NWLR (Pt. 797) 639 at 655. In view of my above partial consideration of issues 3 and 4 of the appellant (correspondent with issue 2 of the respondent) those issues which have already been dealt with and resolved in my consideration of issues 1 and 2 (of appellant) and are therefore merely repetitive should, rather than bein disregarded also be resolved in favour of the appellant and against the respondent.
On the whole and upon my resolution of all the issues in the appeal in favour of the appellant, his appeal consequently succeeded and must be allowed. I accordingly hereby allow the appeal. All the interlocutory orders made by the lower court against the appellant are hereby set aside and discharged. I assess the costs of this appeal at N5,000.00 which I award in favour of the appellant and against the respondent.
MAHMUD MOHAMMED, J.C.A.: I have had the privilege of reading the judgment of my learned brother Adamu, J.C.A. which has just been delivered and I entirely agree with it.
For the same reasons advanced in the lead judgment which I hereby adopt as mine, I too hereby allow this interlocutory appeal, set aside the order of interlocutory injunction granted to the respondent by the trial court and replace that order by an order dismissing the respondent’s application.
I also abide by the order on costs made in the lead judgment.
BABA ALKALI BA’ABA, J.C.A.: I have had the privilege of reading the judgment of my learned brother Adamu, J.C.A. and I am in agreement with him that there is merit in the appeal. I fully endorsed the reasoning and conclusion reached therein which I adopt as mine and allow the appeal. I abide by the consequential orders including that of costs.
- C. Ochu, Esq. For Appellant
- I. Habeeb, Esq. For Respondent