GEORGE & ORS v. DE STEFANI (2022)

GEORGE & ORS v. DE STEFANI

(2022)LCN/16727(CA)

In the Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, April 06, 2022

CA/L/260/2016

Before Our Lordships:

Obietonbara Owupele Daniel-Kalio Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

1. MRS BISI GEORGE 2. OPE GEORGE 3. MR. FUNMI GEORGE 4. MR. BOB JOHN EZE 5. MR. SADIQ APPELANT(S)

And

FLORIANA DE STEFANI RESPONDENT(S)

RATIO

THE ESSENCE OF A REPLY BRIEF

The resolution will commence with the determination of the propriety of the Appellants’ reply brief. The law is settled that the essence of reply brief is to respond to new issues raised in the Respondent’s brief which were not taken in the Appellant’s brief. Reply brief is not an avenue to reopen argument already canvassed nor an opportunity to re-emphasize the arguments in the Appellant’s brief. See Oguanuhu & Ors vs. Chiegboka (2013) LPELR-19980 (SC), Eromosele vs. FRN (2018) LPELR-43851 (SC), Compact Manifold & Energy Services vs. Pazan Services Nig. Ltd (2019) LPELR-49221, Cameroon Airlines vs Otutuizu (2011) LPELR-827 (SC). A reply brief is not a repair kit to put right any lacuna or error in the Appellant’s brief. See Awusa vs. Nigerian Army (2018) LPELR-44377 (SC). PER SIRAJO, J.C.A.

THE POSITION OF LAW ON THE OBJECT OF AN INTERLOCUTORY INJUNCTION

This appeal borders on the rule and/or principles governing/guiding the grant or refusal of an interlocutory injunction, whose purport is the preservation of the res in the litigation. The law requires that the res or subject matter of the litigation should not be destroyed or annihilated before the judgment of the Court. It is beyond doubt that the object of interlocutory injunction is to protect the Applicant against injury by violation of his right for which he cannot be adequately compensated in damages if the dispute is finally resolved in his favour at the trial. Generally speaking, interlocutory injunction is granted to preserve the property in dispute from acts or further acts of trespass, destruction or injury, etc, pending the determination of the Issues submitted for adjudication by the Court. See Obeya Memorial Hospital vs. AG Federation (1987) LPELR-2163 (SC), Ogbonnaya vs. Adapalm Nig. Ltd (1993) LPELR-2288 (SC), Dyktrade Ltd vs. Omnia (Nig.) Ltd (2000) LPELR-977 (SC), Akinpelu vs. Adegbore & ors (2008) LPELR-354 (SC) and Adeleke vs. Lawal (2013) LPELR-20090 (SC). PER SIRAJO, J.C.A.

FACTORS TO BE CONSIDERED IN AN APPLICATION FOR INTERLOCUTORY APPLICATION

The Apex Court has evolved principles that will guide the Courts in their decision on application for interlocutory injunction. In hearing an application for interlocutory injunction, the Court is called upon to exercise an equitable jurisdiction in the light of facts presented before it by the applicant, as it is not granted as a matter of course. The facts so presented must be convincing as to vindicate the well laid down principles for granting injunction. Some of the principles or factors to be considered in an application for interlocutory injunction are:
1. There must be a subsisting action which must clearly denote a legal right which the applicant seeks to protect.
2. The applicant must show that there is a serious question or substantial issue to be tried, which requires maintenance of the status quo.
3. The applicant must show that the balance of convenience is in favour of granting the application, that is, that more justice will result in granting the application than in refusing it.
4. The applicant must show that there was no delay on his part in bringing the application.
5. The applicant must show that damages cannot be adequate compensation for the injury he will suffer if the application is not granted.
6. The applicant must make an undertaking to pay damages in the event of a wrongful exercise of the Court’s discretion in granting the injunction.
See Kotoye vs. CBN & Ors (1989) LPELR-1707 (SC); Saraki vs. Kotoye (1990) LPELR-15503 (SC); Obeya Memorial Specialist Hospital vs. A.G. Federation (supra); Akinpelu vs. Adegbore (supra); Buhari vs. Obasanjo (2003) LPELR-813 (SC) and Falomo vs. Banigbe & Ors (1998) LPELR-1237 (SC).
On the first ingredient, the Court must be satisfied that the applicant’s substantive claim before the Court is not frivolous or vexatious and that there is a serious question to be tried at the hearing of the substantive suit. This first ingredient is a fundamental requirement which must be established for the success of an application for interlocutory injunction. Failure by an applicant to establish this most important requirement will automatically defeat his application, as the Court has no basis in proceeding to consider the other requirements. PER SIRAJO, J.C.A.

MUHAMMAD IBRAHIM SIRAJO, J.C.A. (Delivering the Leading Judgment): Before the High Court of Lagos State, the Respondent, as Claimant in Suit No. CD/1008/2013, claimed against the Appellants, as Defendants, some declarations, to wit; (a) that she is entitled to possession of the property situate at No. 14, Bayo Kuku Road (formerly Warring Road), Ikoyi; (b) that the Appellants’ entry into the said property constitutes trespass; (c) that the Appellants are in contempt of the orders of the High Court of Lagos State in Suit No. CD/141/2009. She also claimed other sundry reliefs which included mandatory and perpetual injunctions, damages for trespass and for false imprisonment.

The background facts leading to the suit is that the Respondent was let into possession of the property in dispute by the late owner, Mr. Fred Egbe, as a result of a joint venture agreement between them for the management and development of the property. Upon the demise of Mr. Fred Egbe, several members of his family claimed rights to his estate and many suits were filed in Lagos State High Court. In order to preserve the property and other properties, the Court appointed Interim Administrators over the properties and also restrained the 1st Appellant, her agents and privies from interfering with the property in dispute. Intent on selling the property, the Appellants wrote a letter to the Respondent on 28/06/2013 stating that they have not been able to sell the property because of her possession. The Appellants forcefully entered into the property and damaged the security doors and removed valuable paintings and materials and also installed strange persons and thugs on the property. While the Respondent’s security men were arrested on the prompting of the Appellants, the 5th and 6th Appellants forcefully moved into the property and threatened the residents to leave immediately. The appellants locked the gate of the property with the Respondent and other residents inside. The Appellants also cut off the water supply and turned off electricity supply on the property. The Appellants denied the claim and joined issues with the Respondent. The Appellants contended that the Respondent was a tenant at will as her tenancy on the property terminated on 31st December, 2012. According to the Appellants, late Fred Egbe is the brother of the 1st Appellant and an uncle to the other 4 Appellants.

On 10/02/2016, an application for interlocutory injunction filed by the Respondent, pages 98 – 134 of the Record of Appeal, was argued and ruling delivered on 23/02/2016, pages 262 – 268 of the Record, granting the application in the following terms:
1. An order of interlocutory injunction is hereby issued restraining the Defendants, their servants, agents, workmen, privies and any other person whosoever claiming through them from further, unabated, repeated, unwarranted acts of trespassing and not to continue the current and present on daily basis the continuous acts of entering, interfering, destroying, altering, meddling, demolishing, damaging, disturbing, use of self-help, troubling, worrying, upsetting in respect of the land and property being occupied by the Claimant known as at No. 14, Bayo Kuku Road (formerly Warring Road), Ikoyi, Lagos pending the determination of the substantive suit.
2. The Claimant shall not during the pendency of the substantive suit in any manner whatsoever alienate, part or transfer her occupation of the property known as at No. 14, Bayo Kuku Road (formerly Warring Road) Ikoyi, Lagos.
3. The Claimant shall enter into an undertaking which shall be filed within 7 (seven) days from today.
4. Prayer 2 of the application is hereby stuck out.

Aggrieved by the order of interlocutory injunction against them, the Appellants filed a Notice of Appeal on 23/02/2016, predicated on two grounds of appeal, contained at pages 275 — 277 of the Record.

Appellants’ Brief of Argument, settled by Olumide Aju with Chukwudi Eze and Ezekanachi Nnadozie was filed on 22/03/2016. Respondent’s Brief of Argument filed on 20/05/2016 but deemed to have been properly filed and served on 07/02/2022, was settled by Lawal Alebiosu.

Appellants’ reply brief filed on 13/10/2017 was deemed properly filed on 07/02/2022. While Chukwudi Eze adopted the Appellants’ brief and the reply brief, Lawal Alebiosu adopted the Respondent’s brief when the appeal came up for hearing on 07/02/2022.

Learned counsel for the Appellants identified and formulated a sole issue for determination in the Appellants’ Brief of Argument-
“Whether the learned trial Judge was right to grant an order of interlocutory injunction against the Appellants having regards to the facts/circumstances of this case and the legal principles applicable to the grant of that order (Grounds 1 & 2 of the Notice of Appeal).”

The Respondent’s lone issue for determination was couched thus:
“Whether, having regards to the facts and circumstances of the case, and the legal principle applicable, the learned trial Judge was right in granting the order of interlocutory injunction to further restrain the Appellants.”

Argument
Learned counsel for the Appellants submitted that the lower Court misapplied the principles for the grant of an order of interlocutory injunction which he stated as: (a) the applicant must show an existing legal right; or (b) that damages cannot be adequate compensation or (c) that the balance of convenience is on her side; and (d) that she has given satisfactory undertaking in damages.

On the existence of legal right, it was submitted that in view of Exhibit A2 annexed to the Appellants’ counter-affidavit, the Respondent’s 3-year tenancy with the owner of the property, Waterside Properties Limited, expired on 31st December, 2012, therefore as at that date she has no legal right over the property on the basis of which an order of injunction may be granted in her favour. Reliance was placed on Obeya Memorial Specialist Hospital vs. A.G. Federation & Anor (1987) 3 NWLR (Pt.60) 325, Lawal vs. Adeleke (2004) 13 NWLR (Pt.891)476, Lafferi Nig. Ltd vs. NAL Merchant Bank Plc (2002) 1 NWLR (Pt.748) 333 at 349. Counsel argued that the lower Court was wrong in assuming the existence of a legal right from the previous injunctive order made by the Court, coram: Alogba, J., (as he then was, now C.J.) on 25/11/2013, instead of determining the application on the basis of the facts before him; citing Orhue vs. National Electric Power Authority (1998) 7 NWLR (Pt.557) 187 at 200. He contended, relying on Oyeyemi vs. Irewole Local Government Ikire (1993) 1 NWLR (Pt.270) 462, that the lower Court’s reliance on the interim order to maintain status quo issued on 25/11/2013 to found a legal right in the Respondent is manifestly unsupportable in law. Appellants’ counsel referred to page 6 of the ruling, where the lower Court had found the depositions in the opposing affidavits to be in conflict, and submitted that the lower Court ought not to have granted the order sought in view of the conflicting facts in the opposing affidavits as well as within the affidavit of the Respondent itself. The cases of Onyesoh vs. Nnebedun (1992) 3 NWLR (Pt.229) 315 SC, Onyemelukwe vs. W.A.C.C. & Anor (1995) 4 NWLR (Pt.387) 44 at 55 were cited in support.

Learned counsel also faulted the lower Court in not considering his argument that the order sought would adversely affect the owner of the property, Waterside Properties Limited, which was not a party in the proceedings, thereby violating the fundamental rights of Waterside Properties Ltd, Uzondu vs. Uzondu (1997) NWLR (Pt.521) 466 and Yusuf vs. I.I.T.A. (2009) 5 NWLR (Pt.1133)18 at 35 & 37.

On damages not being adequate compensation, counsel contended that the Respondent having not being the owner of the property, and her tenancy having expired on 31/12/2012, she ought not be granted an order of injunction because the award of damages will be sufficient compensation for any loss which she may suffer.

On balance of convenience, it was the argument of Appellants’ counsel that the balance of convenience was not on the side of the Respondent in this matter and that more justice would result in refusing the application than in granting it as the prejudice to Waterside Properties Ltd and the Appellants far outweighed the inconvenience which the Respondent may have suffered if the application was refused. That the burden of showing that the balance of convenience was on her side has not been discharged by the Respondent. C.C.B. (Nig) Plc & Anor vs. Ozobu (1998) 3 NWLR (Pt.541) 290 at 311.

Learned counsel submitted further that the Respondent did not provide any evidence of her capacity to satisfy her undertaking in damages when viewed against the backdrop of the Appellants’ challenge to the Respondent’s capacity to satisfy her undertaking. See Ita vs. Nyong (1994) 1 NWLR (Pt.318) 56 at 67; Leasing co. (Nig.) Ltd vs. Tiger Ind. Ltd (2007) 14 NWLR (Pt.1054) 436.

The Appellants further argued that their rights to fair hearing had been infringed upon when the lower Court varied or extended the previous order of injunction made on 25/11/2013 without an application for variation from the Respondent and without affording them the opportunity to be heard. The Court was urged to allow the appeal.

In his arguments on the lone issue submitted by him for determination, learned counsel for the Respondent drew the Court’s attention to the principles guiding the grant of interlocutory injunction as enunciated in the authority of Buhari vs. Obasanjo (2003) 17 NWLR (510). He submitted that the Respondent has, by her statement of claim, shown that she has a legal right which she seeks to protect as she is in possession and occupation of the property. He maintained that in view of the Appellants’ averment in their statement of defence that the Respondent is a tenant at will, the fact that the Respondent was in possession has never been in issue. It was argued that the agreement relied upon by the Appellants was not made with the Appellants, just as the suit was not filed against Waterside Properties Ltd and the injunction was not made against the said Company but against the Appellants. Counsel argued that the assertion of the Appellants that they were not the people disturbing the possession of the Respondent is enough reason why they should not have any problem with the order of injunction. On the contention of the Appellants that Waterside Properties Ltd is the owner of the property, counsel submitted that the determination of ownership of the property is a matter for the final determination of the suit, and that it will amount to descending into the arena for the Court to determine who owns the property at this stage. What matters at this stage is the preservation of the res.

On the argument of the Appellants concerning the conflicts in the affidavits as found by the lower Court, Respondent’s counsel referred to the conclusion drawn by the lower Court from the conflicts in the affidavits as contained at page 268 of the record with respect to balance of convenience and submitted that from the facts before the Court, the lower Court was right in holding that the balance of convenience tilts in favour of the Respondent who will suffer more inconvenience if the application is not granted. Reliance was placed onBuhari vs. Obasanjo (supra).

Respondent’s counsel further submitted that damages will not be adequate compensation to the continuous acts of trespass, disturbance, threats, entering of thugs, harassment, intimidation and constant fear of imminent danger to the person of the Respondent and other occupants of the property. He maintained that the Respondent has satisfied the Court that she was deserving of the equitable remedy of injunction before the lower Court exercised its discretion in her favour. Calling in aid the cases of F.H.A. vs. Emelie (2013) 3 NWLR (Pt.1342) 478 @ 496; Nathaniel Onwuka Ajero & Anor vs. Bernard Ugorji & Ors (1999) 10 NWLR (Pt.621), learned counsel submitted that where possession is established, order of injunction will be granted in appropriate cases to protect the possession. He maintained that the Respondent, who has established possession and occupation of the property has the legal right to prevent trespass, disturbance, damage and harassment to her peaceful possession.

While agreeing with the Appellants’ submission that an order of injunction cannot be made against a non-party, counsel for the Respondent argued that the facts and circumstances in the cases of Uzondu vs. Uzondu (supra) and Yusuf vs. I.I.T.A. (supra), cited and relied upon by the Appellants, are clearly different from the peculiar facts and circumstances of this case. He argued that in Uzondu’s case, the High Court has no jurisdiction as the land was granted under a customary right of occupancy. Secondly, that the injunction was granted against “respective owners” who were not parties in the case, and further that the act of trespass has been completed before the grant of injunction. With respect to the case of Yusuf vs. I.I.T.A. (supra), it was contended that the Court of Appeal upheld the trial Court’s refusal to grant injunction because the generating machine, subject matter of the injunction, has already been sold to a third party before the application for injunction was made. He submitted that the injunctive order in the instant case was not directed towards any third party other than the Appellants. The Court was urged to dismiss the appeal. Following the service of the Respondent’s Brief of Argument, the Appellants filed a reply brief in response to what they termed ‘new points.’ Learned counsel for the Appellants itemized the ‘new points’ raised in the Respondent’s brief which requires the filing of a reply brief, as follows:
(a) that the lower Court properly exercised its discretion to grant the order of injunction in this matter.

(b) that the cases of Uzondu vs. Uzondu (supra) and Yusuf vs. I.I.T.A. (supra) cited by the Appellants are inapplicable to this case.

Resolution
The rightness or correctness of the order made by the lower Court is central to the issues distilled for determination by both parties to this appeal. I can therefore safely say that the issues formulated by the parties are the same, save for the wordings and the style adopted in their formulation. I will therefore adopt the issue formulated by the Appellants in the resolution of this appeal.

The resolution will commence with the determination of the propriety of the Appellants’ reply brief. The law is settled that the essence of reply brief is to respond to new issues raised in the Respondent’s brief which were not taken in the Appellant’s brief. Reply brief is not an avenue to reopen argument already canvassed nor an opportunity to re-emphasize the arguments in the Appellant’s brief. See Oguanuhu & Ors vs. Chiegboka (2013) LPELR-19980 (SC), Eromosele vs. FRN (2018) LPELR-43851 (SC), Compact Manifold & Energy Services vs. Pazan Services Nig. Ltd (2019) LPELR-49221, Cameroon Airlines vs Otutuizu (2011) LPELR-827 (SC). A reply brief is not a repair kit to put right any lacuna or error in the Appellant’s brief. See Awusa vs. Nigerian Army (2018) LPELR-44377 (SC).

Now, looking at what the Appellants termed ‘new points’, I find that they are really not new issues of law but replies to the arguments in the Appellants’ brief. At paragraph 4.01 of the Appellants’ brief, the Appellants submitted that the learned trial Judge was in error in granting the order of injunction which error stemmed from his misapplication of the principles for the grant of order of interlocutory injunction. It is beyond argument that an application for interlocutory injunction seeks the exercise of the Court’s discretionary power. Where a Court is accused of misapplying the principles for the grant of injunction, what that means is that the Court did not exercise its discretion properly in accordance with laid down rules. The argument in the Respondent’s brief that the lower Court properly exercised its discretion is not a new point, rather, it is a reply to a point of law originally raised in the Appellants’ brief. Similarly, the Respondent’s submission that the cases of Uzondu vs. Uzondu (supra) and Yusuf vs. I.I.T.A. (supra) do not apply to the instant case on appeal, is also not a new point deserving of a reply by the Appellant. It was the Appellants that originally cited and relied on these two cases at paragraphs 4.12 and 4.13 of the Appellants’ Brief of Argument, and all that the Respondent did in her Respondent’s Brief was to distinguish the two cases and show why they cannot apply here. On the whole, I fail to see anything new in the Appellants’ reply brief as the so-called ‘new points’ were actually replies to the Appellants’ Brief of Argument. This reply brief is simply an amplification of the arguments canvased in the Appellants’ brief and If allowed, it will defeat the very essence of reply brief. In the result, I hereby discountenance the Appellants’ reply brief.

Now to the substance/merits of the appeal.
This appeal borders on the rule and/or principles governing/guiding the grant or refusal of an interlocutory injunction, whose purport is the preservation of the res in the litigation. The law requires that the res or subject matter of the litigation should not be destroyed or annihilated before the judgment of the Court. It is beyond doubt that the object of interlocutory injunction is to protect the Applicant against injury by violation of his right for which he cannot be adequately compensated in damages if the dispute is finally resolved in his favour at the trial. Generally speaking, interlocutory injunction is granted to preserve the property in dispute from acts or further acts of trespass, destruction or injury, etc, pending the determination of the Issues submitted for adjudication by the Court. See Obeya Memorial Hospital vs. AG Federation (1987) LPELR-2163 (SC), Ogbonnaya vs. Adapalm Nig. Ltd (1993) LPELR-2288 (SC), Dyktrade Ltd vs. Omnia (Nig.) Ltd (2000) LPELR-977 (SC), Akinpelu vs. Adegbore & ors (2008) LPELR-354 (SC) and Adeleke vs. Lawal (2013) LPELR-20090 (SC).

The Apex Court has evolved principles that will guide the Courts in their decision on application for interlocutory injunction. In hearing an application for interlocutory injunction, the Court is called upon to exercise an equitable jurisdiction in the light of facts presented before it by the applicant, as it is not granted as a matter of course. The facts so presented must be convincing as to vindicate the well laid down principles for granting injunction. Some of the principles or factors to be considered in an application for interlocutory injunction are:
1. There must be a subsisting action which must clearly denote a legal right which the applicant seeks to protect.
2. The applicant must show that there is a serious question or substantial issue to be tried, which requires maintenance of the status quo.
3. The applicant must show that the balance of convenience is in favour of granting the application, that is, that more justice will result in granting the application than in refusing it.
4. The applicant must show that there was no delay on his part in bringing the application.
5. The applicant must show that damages cannot be adequate compensation for the injury he will suffer if the application is not granted.
6. The applicant must make an undertaking to pay damages in the event of a wrongful exercise of the Court’s discretion in granting the injunction.
See Kotoye vs. CBN & Ors (1989) LPELR-1707 (SC); Saraki vs. Kotoye (1990) LPELR-15503 (SC); Obeya Memorial Specialist Hospital vs. A.G. Federation (supra); Akinpelu vs. Adegbore (supra); Buhari vs. Obasanjo (2003) LPELR-813 (SC) and Falomo vs. Banigbe & Ors (1998) LPELR-1237 (SC).
On the first ingredient, the Court must be satisfied that the applicant’s substantive claim before the Court is not frivolous or vexatious and that there is a serious question to be tried at the hearing of the substantive suit. This first ingredient is a fundamental requirement which must be established for the success of an application for interlocutory injunction. Failure by an applicant to establish this most important requirement will automatically defeat his application, as the Court has no basis in proceeding to consider the other requirements.

The Respondent in this appeal took out a Writ of Summons at the High Court of Lagos State against the Appellants on 12/11/2013, claiming inter alia declaration that she is entitled to the possession of premises situate at No. 14 Bayo Kuku Road (formerly Warring Road), Ikoyi, Lagos, and a declaration that the Appellants’ entry into the premises constitute trespass. She averred in her Statement of Claim that she was let into possession of the property in dispute by the late owner, Mr. Fred Egbe, as a result of a joint venture agreement between them for the management and development of the property. Upon the demise of Mr. Fred Egbe, several members of his family claimed rights to his estate and many suits were filed in Lagos State High Court. In order to preserve the property and other properties, the Court appointed Interim Administrators over the properties and also restrained the 1st Appellant, her agents and privies from interfering with the property in dispute. Despite the appointment of Interim Administrators, the Appellants, intent on selling the property, forcefully entered into the property and damaged the security doors and removed valuable paintings and materials and also installed strange persons and thugs on the property. While the Respondent’s security men were arrested on the prompting of the Appellants, the 5th and 6th Appellants forcefully moved into the property and threatened the residents to leave immediately. The appellants locked the gate of the property with the Respondent and other residents inside. The Appellants also cut off the water supply and turned off electricity supply on the property. The facts highlighted above is a clear indication of a serious question to be tried at the hearing of the suit, thereby satisfying the first and most important requirement for the grant of an order of interlocutory injunction. The Appellants denied all the allegations of the Respondent and averred in the Statement of Defence of the 1st – 6th Defendants at pages 40-42 of the Record, inter alia, that; (a) the Respondent is a tenant at will on the property; (b) the owners of the property are Waterside Properties Ltd, a non-party in the proceedings; (c) they never visited the property nor did they put strange men in front of the premises or threatened the residents as alleged by the Respondent; (d) the Respondent has no tenancy relationship with the owners of the property. From the facts stated above, it is clear that at the commencement of the suit at the lower Court the Respondent was in possession of the property in dispute and it is this possession that she wants to protect by her application for an order of interlocutory injunction. The reason for the application was stated in the affidavit in support deposed to by the Respondent herself. She stated in the affidavit that on 04/12/2015, the Appellants in company of fierce-looking thugs descended on the property in war-like manner and gave all occupants 5 days ultimatum to vacate the premises. That her entreaties to the leader of thugs by name, Tonye Amachree, to allow the order of injunction to operate was not heeded to. That the thugs started destroying, damaging, trespassing, demolishing and disturbing the Respondent’s possession by resorting to self-help. She exhibited pictures of the destruction on the property, including the removal of the roof tops. The Appellants, through the counter-affidavit of Funmi Goerge, the 3rd Appellant, denied ever laying siege on the property and causing any destruction through thugs. They denied putting any thug on the property or intimidating, threatening or harassing the Respondent. The Appellants reiterated that the property in dispute belonged to Waterside Properties Ltd who in 2009 leased same out to the Respondent on a three-year tenancy, which expires on 31/12/2012. The Appellants have not made any attempt to explain their relationship with Waterside Properties Ltd whom they continuously alleged to be the owner of the property. The Appellants have not, by their counter affidavit, informed the Court either that they acquired the property from Waterside Properties Ltd or that Waterside Properties Ltd acquired same property from them as to bring the interest of Waterside Properties Ltd within the confines of the cases of Uzondu vs. Uzondu (supra) and Yusuf vs. I.I.T.A. (supra), cited and relied on by the Appellants’ counsel. What is more, the order of interlocutory injunction granted by the lower Court was not made against Waterside Properties Ltd and I fail to comprehend the obsession of the Appellants and their counsel with Waterside Properties Ltd. Also, the Appellants did not state that they are either Directors or alter ego of Waterside Properties Ltd. Better still, since the Appellants very well know Waterside Properties Ltd and even annexed some of its documents to their counter-affidavit, one wonders why they did not inform the Company about the pendency of the action against its interest for it to join and defend its interest. In the Appellants’ Brief of Argument, learned counsel for the Appellants made a heavy weather on the ownership of the property residing in Waterside Properties Ltd, a Company whose legal existence has been faulted and challenged by the Respondent. The appearance entered by counsel in the suit leading to this appeal, pages 38 and 39 of the record, was for the 1st – 6th Defendants, which did not include Waterside Properties Ltd. Of course, counsel could not have entered appearance for Waterside Properties Ltd as the Company is not a party in the suit. Similarly, counsel lacked the locus standi to make submissions on behalf of and/or for the benefit of Waterside Properties Ltd as the said Company is not an Appellant in this appeal. If counsel had known the Company by name ‘Waterside Properties Ltd’ and wanted to represent it in the suit at the lower Court and in this appeal, he should have done the needful. Having not done so, he must confine his brief to the parties he is representing in this appeal. Further to that, by their Statement of Defence and counter-affidavit, the Appellants are not claiming ownership of the property in dispute and have not denied the existence of a Court order appointing Interim Administrators over the property of late Mr. Fred Egbe, which included the property in dispute. With these facts at its fingertip, the lower Court, after alluding to the fact that there seems to be conflict of facts between the contending parties with the denial of the Respondent’s allegation by the Appellants, which it cannot investigate at this stage of the proceedings, held at page 268 of the Record, thus:
“From this conflict of facts, to the Court, the Claimant will suffer more inconvenience if the application is not granted, whereas the Defendants who had positively deposed that they were never near the property at any time, will suffer no harm if the application is granted.”

The reasoning of the learned trial Judge cannot be faulted. If the level of destruction of the property seen in the exhibits annexed to the affidavit and further affidavit in support of the application and the harassment of the Respondent is allowed to continue, the Respondent cannot be adequately compensated in damages if she emerged successful at the end of the litigation.

My Lords, though I am not a Graphic Artist, permit me to attempt painting a picture of a scenario in your mind’s eyes. Here are Defendants to an action who denied all the allegations of tampering with and destruction of the property in dispute as well as harassing the occupant of the property, either by themselves personally or through their agents, servants and privies, and who are also asserting that someone else is the owner of the property in dispute and not themselves, yet they are opposing the grant of interlocutory injunction to preserve the property from further destruction and to stop the harassment of the Respondent, pending the determination of the substantive action. In view of their denial of all the positive allegations of the Respondent against them, one would have thought that the Appellants should have no business or problem at all whether the order of injunction was made or not. But here are they, vehemently opposing the application at the lower Court, and now challenging on appeal the order made by the lower Court. Wonders, it is said, shall never end. It appears there is more than meets the eye; there may be many hidden facts that are in the bosom of the Appellants which are not made available to the Court. It may be that the Appellants know the Unknown Persons that were sued as the 6th Defendant at the lower Court or that the Unknown Persons are aware of the pendency of the action as well as this application but refused to disclose their identity, waiting for the Appellants to defend their cause. Whichever way, it is not within the realm of the law for me or any other person for that matter, to speculate without facts. For now, I hold the strong view that on the basis of the available facts before the lower Court, and also the fact that the Respondent has given undertaking as to damages, that Court has exercised its discretion judicially and judiciously, and was justified in granting the order of interlocutory injunction sought by the Respondent. There is no basis for this Court to interfere with the lower Court’s exercise of discretion. I find this appeal to be without merit and I dismiss it accordingly. The ruling of the High Court of Lagos State presided over by Hon. Justice O.H. Oshodi, in Suit No. LD/1008/2013, delivered on 23/02/2016 is hereby affirmed. N200,000 cost is awarded to the Respondent against the Appellants.

OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother, MUHAMMAD IBRAHIM SURAJO, JCA and I agree with his reasoning in affirming the order of interlocutory injunction granted by the lower Court. One of the considerations in deciding an application for an interlocutory injunction is balance of convenience. If the balance of convenience does not clearly favor either party, then the preservation of the status quo will be decisive. See AMERICAN CYANAMID CO. V. ETHICON LTD (1975) AC 398, AYORINDE V AG AND COMMISSIONER FOR JUSTICE, OYO STATE & ORS (1996) LPELR-685 (SC) 20. There are situations where the balance of convenience favour one party. In that sort of situation, in assessing where the balance of convenience lies, the relative strength of each party’s case as revealed by the affidavit evidence is considered and if it is clear that the strength of one party’s case is disproportionate to that of the other party, the party in whose disproportionate favour the strength of the case lies, will enjoy the interlocutory injunction. See generally, SOTUMINU V. OCEAN STEAMSHIP (NIG) LTD & ORS (1992) LPELR-3106 (SC) 19-20. The position of the Appellants is that the balance of convenience is in their favour. Why do they say so? It is because in their perspective, more justice would result in refusing the application as granting it would be prejudicial to Waterside Properties Ltd and they (the Appellants) would suffer. It is difficult to accept this position of the Appellants. The Appellants are not Waterside Properties Ltd and they have stated that they were not the ones disturbing the possession of the Respondent. There is therefore no faulting the fact that the balance of convenience is not in their favour. For this reason and the more detailed reasons given by my learned brother in the lead judgment, I find no merit in the appeal and therefore affirm the ruling of the lower Court. I abide by the consequential order as to costs made by my Lord.

PETER OYINKENIMIEMI AFFEN, J.C.A.: I had the advantage of reading, in draft, the judgment just delivered by my learned brother, Muhammad Ibrahim Sirajo, JCA, I agree with the judicial reasoning and conclusions reached on the issues raised in this appeal, which I adopt as my own. I hereby record my concurrence with the leading judgment and abide by the consequential orders.