HRH OBA SAMUEL ABOYEJI & ANOR v. PA AKANDE ATOYEBI & ORS
(2018)LCN/11884(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 10th day of July, 2018
CA/IL/M.31/2013
RATIO
COURT AND PROCEDURE: GRANT OF INTERIM INJUNCTION
“It is trite that the essence of the grant of an interim injunction is the protection of the existing legal right or claimed legal right from unlawful or perceived unlawful invasion by the adversary. From the affidavit evidence before the lower Court, it is clear that a piece of land is in contention between two communities. It is also clear that the ownership of the said land is in contest before the Court, which invariable is not on seat to attend to the feuding parties because of the vacation period. The Court cannot shut his eyes and knowledge of the incessant communal clashes over land all over him, and I do agree with the lower Court, that the threat of the breakdown of public peace between the two communities, should weigh more in the mind of the judge, as against the legal principle expressed in the case of Isyaku vs. Masters (supra), owing to the circumstance of the case.” PER HAMMA AKAWU BARKA, J.C.A.
JUSTICES:
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
Between
1. HRH OBA SAMUEL ABOYEJI
OLUSIN OF IJI-ISIN
2. CHIEF EMMANUEL A.O. ADEBOYE
BAALE OF IJI-ISIN
(FOR THEMSELVES AND THE ENTIRE IJI-ISIN COMMUNITY) – Appellant(s)
AND
1.PA AKANDE ATOYEBI (HEAD, ODOJARA FAMILY, IJARA-ISIN)
2. CHIEF MICHAEL ALABI ARANSIOLA
(AGBAJA OF IJARA-ISIN)
3. MR. JOEL BAMIDELE AWOTAYO
4. ARCH. DELE OYEYIPO
(FOR THEMSELVES AND THE ENTIRE ODO-IJARA FAMILY OF IJARA-ISIN) – Respondent(s)
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment):
This Appeal is against the ruling of M. A. Afolayan of the Kwara State High Court sitting in Ilorin; in which the respondents application for injunctive reliefs were granted.
The history of the present case appears straight forward. It is as captured by the lower Court in its ruling of the 12th of October, 2012. For a proper understanding of the situation, I reproduce the series of events that led to the present appeal, as captured by the lower Court thus:
A motion exparte was filed and assigned to this Court during the judges vacation. The motion exparte was accompanied by an affidavit of urgency and a motion on notice. Both the motion exparte and motion on notion are in respect of a case already pending before the Omu-Aran High Court with suit No KWS/OM/8/2011.
This application is given a new suit No KWS/82M/2012. The exparte application and motion on notice were asking for the following reliefs:
An order of this Court restraining the defendants, agents servants and privies or anyone acting for them from building, constructing, continuing with construction, entering or in any manner adversely dealing with the vacant portion of the land in dispute pending the determination of the motion on notice filed contemporaneously with this application.
And for such other order(s) as this Honourable Court may deem fit to make in the circumstance of this application.
The grounds in support of the application are as set down hereunder:
(1) The defendants seizing the opportunity of the current vacation have started construction on a part of the land in dispute and unless restrained will foist injustice on the claimant and the Court.
(2) The defendants are desperate and feverishly carrying on the construction work in order to change the character of the land unless restrained immediately.
(3) The application is of urgency and the urgency is not self-induced.
(4) The applicants have contemporaneously with this application filed their motion on notice.
(5) The defendants if not restrained may cause a serious breach of the peace in the area.
This application was dated 8/8/12 and filed on 9/8/12. There was an affidavit of urgency of 8 paragraphs. In support of the motion exparte was a 23 paragraph affidavit sworn to by one Chief Michael Alabi Aransiola, Chief Agbaja of Iraja – Isin and a principal member of Odojara family who claims to be representing the family as 2nd claimant in the substantive suit. The motion exparte was instantly granted and a date set down for the hearing of the motion on notice, which sought for the same prayers as in the exparte motion, but with the grounds of the application slightly different, as hereunder set out as follows:
(1) The claimants instituted this action against the defendants for a declaration that the expanse of land known as Odo-Ijara land covering the whole of Iji-Isin exempting the Amidefa land in Iji-Isin is owned by the claimants.
(2) The defendants resisted the claimants and have joined issues with the claimants, the suit is thus properly placed before this Court for adjudication.
(3) The defendants rather than exercise restraint on the vacant portion of the land subject of dispute before this Honourable Court are constructing buildings on the land and threatening to deal with the claimants if they disturb them.
(4) The claimants not wanting to cause a breach of the peace in the area reported to the police at the Divisional Headquarters, Owu-Isin, but their intervention and advice to the defendants to exercise restraint and stop the development has been rebuffed by the defendants who have continued albeit illegally and in contempt of this suit, their development of the land.
(5) The defendants are using the opportunity of the Court’s vacation to provoke the claimants into a breach of the peace and totally radically change the character of the vacant portion of the land in dispute.
(6) It is in the interest of peace which the defendants are seriously threatening and justice to grant this application.
The motion on notice is supported by a 20 paragraph affidavit sworn to by the same Chief Michael Alabi Aransiola, and attached thereto are 3 annexures marked exhibits A, B and C; the site plan of the land in dispute as exhibit A, while exhibit B and C are the photographs of building constructions going on the land. There is accompanying the motion; a written address. Further still is a further affidavit in support of the motion, and a reply on point of law to the respondents written address also filed. All the addresses were adopted at the hearing of the application.
The Respondents in opposing the application filed a counter affidavit of 26 paragraphs and attached thereto 7 annexures marked exhibits IJI 1, IJI 7. The written address accompanying the counter affidavit was duly adopted. Exhibit IJI 1 is the ruling of the Upper Area Court Omu-Aran, while Exhibit IJI 2 is a writ of summon in suit No KWS/OM/8/2011. Exhibit IJI 3 is a copy of statement of defence and counsel claim of the defendant.
Exhibit IJI 4 and 5 are copies of the judgments of the Court of Appeal and the Supreme Court respectively. A ruling of the Upper Court in a criminal proceeding is exhibit IJI 6, and a letter dated 25/5/2010 is attached as exhibit IJI 7. The learned counsel on both sides in adopting their written addresses, made brief oral arguments.
As can be seen from the affidavit in support of the application, the claimants allegedly claim being the traditional owners of Odojara comprising of the whole Iji-Isin land, and the defendants their customary tenants on the land.
The land in dispute is the vacant land which the defendants particularly the 2nd defendant is developing. It is their deposition that the 1st defendant gave instruction or directed his wealthy subjects to be constructing and building on the vacant land which forms the subject of the dispute between them. The 2nd claimant reported them to the police to avert the breakdown of peace and the police warned them but they ignored the police warning and proceeded with developing the disputed land. That a case on this land in dispute is pending before the Omu-Aran High Court, but the defendants/respondents took advantage of the judges vacation in August thus desperately and feverishly rushing their construction on the vacant land in dispute, exhibit B and C being the photographs showing the on-going construction of the buildings.
The case before the High Court Omu-Aran is at pre-trial stage, with the parties having filed their Pre-trial processes. That this application before this Court becomes necessary to avert a breakdown of the peace in the area. The claimants undertake to indemnify the defendants if at the end they lose this case after the grant of this application.
There is a further affidavit of 27 paragraphs sworn to by one Ayomide Hamodu, a law office secretary in the Firm of J. S. Bamigboye Esq Counsel to claimants. The further affidavit is a reaction to the counter affidavit. The facts in the counter affidavit are summarized hereunder. The counter affidavit is sworn to by one Chief Emmanuel E. O. Adeboye the 2nd defendant/respondent in this case. It is the deposition of the respondents that the claimants earlier filed a case before the U.A.C Omu-Aran and brought an application for injunction which was refused in Exhibit IJI-1.
Thereafter there was a legal notice No. 8 of Kwara State declaring the land in dispute as urban land and the claimants abandoned the case at U.A.C only to file another suit No KWS/OM/11 at the High Court Omu-Aran, the writ of summons of same is exhibited as Exhibit IJI-2. Also hinged on the counter affidavit are the statement of defence and counter claim, filed by the defendants in the above suit as Exhibit IJI-3, and pleadings having been completed and case adjournment to 30/10/12 for Pre-trial conference by the Omu-Aran High Court, and that up to the time the Court commenced vacation in July the applicants did not tell the trial Court that there was any development going on the land in dispute. That suit no KWS/OM/8/12, is still pending before Hon. Justice Gafar who is equally a vacation judge and both Iyiola Omiyale and Dr Bogunjoko have been allocated the land many years ago and they commenced their building before the institution of this action in suit NO KWS/OM/8/12.
It is also in their deposition that the land on which Mr Iyiola Omiyale is having his uncompleted building is the subject matter of a re-hearing in Appeal No CA/IL/2/99 in MICHAEL BAMIDELE VS DAVID ODETAYO which also went to Supreme Court and was remitted back to the Court of Appeal Ilorin for re-hearing, which is Exhibit IJI 4 and 5 attached.
That the Ruling of the U.A.C Omu-Aran in criminal charge No UACO/CRF.2/2010, C.O.P Vs. EMMANUEL A Exhibit IJI-6, confirm that the land belongs to the defendants/respondents. That if this application is granted the Iji-Isin people will suffer as they will not be able to farm or do anything on their land. The deponent continued to aver that he is not aware of any construction going on during the vacation of judges and the land in dispute comprises of the whole land in Iji-Isin where there are houses, structures both developed and on-going development on the land. That granting this application will amount to transferring the possession of the land to the applicants and also restrict the fundamental human rights of the respondents and the entire communitys freedom of movement.
In the further affidavit in support, the applicants deposed that the spur of this application is Dr Bogunjokos construction of 23/7/12, in line with Mr Iyiola Omiyale and the determination of the respondents to use the cover of the vacation period to change the character of the land. That the judgment of the Supreme Court IJI 5 was remitted (exhibit IJI 4) back to the Court of Appeal in 2007, but the Respondents have abandoned the hearing of the appeal. That paragraphs 18 and 19 of the counter affidavit are misconceived as the claim for interlocutory injunction is limited to the vacant portion of the land in dispute on which nobody can claim prejudice. That at the time this application was filed, Hon. Justice Gafar though a vacation judge has gone on pilgrimage to lesser Hajj to Saudi Arabia and was not available. That this application came before this Court in its jurisdiction as the vacation judge.
It was also stated that what made this application a little peculiar is that the substantive case is pending before another brother judge, and as stated by the said judge, the application was brought accompanied with affidavit of urgency during the annual judges vacation. The Judge in whose Court this application was brought, took note that though the judge in whose Court is pending is also a vacation judge, travelled on pilgrimage to Saudi Arabia for lesser Hajj and by the Rules of this Court, all cases demanding urgency can be heard during vacation and it is not specified that a vacation judge cannot entertain a case already pending before another judge if there is urgency to entertain same.
The lower Court considered the facts in the affidavit of urgency in the application and opined that it was in the best interest of justice to entertain the application, and thereby decided the application on the merit. The Court at page 171 of the records reasoned that:
My overall understanding of the dispute over the land is that two communities are laying claim to the same piece of land. If this application is not granted it may occasion a breakdown of the peace of the area as envisaged in both the affidavit and the written address of the applicants counsel.
This issue of apprehension of threat to public peace super cede the submission of the learned counsel to the Respondent that the subject matter is land, therefore the applicant cannot suffer irreparable injury. I do not agree that the injunction sought by this applicant in a criminal case and refused by the U.A.C can be a bar to this application because the case before the U.A.C was a criminal case.
He concluded that:
In conclusion, I hold that it will be in the overall interest of peace of the two communities to grant this application pending the determination of the substantive suit pending before my learned brother Hon Justice Gafar, I therefore grant the application as prayed.
It is against this ruling that the appellants being dissatisfied, filed the instant appeal vide a Notice of Appeal filed on the 19/10/12 predicated on five grounds of Appeal.
When this appeal was properly entered to this Court on the 8th of May, 2013 with the leave of Court, appellants filed the appellants brief of argument on the 13th February, 2017 deemed filed on the 21/2/17.
It should be noted that though it was evident that respondents were served the appellants brief, failed to file a respondents brief as required by the rules.
On the 24th of November, 2016, this Court granted the appellants request setting down the appeal for hearing based on the appellants brief alone, and on the 19th of April, 2018 when the appeal came up for hearing, and in spite of service of hearing Notice and Order of the Court setting down the appeal for hearing based on the appellants brief alone, and the respondents having still failed and or refused to appear at the hearing of the appeal, appellants were given leave to proceed with the argument of the same, and the learned counsel for the appellants, having been granted leave to proceed with the hearing of the appeal, identified the appellants brief filed and adopted same in urging the Court to allow the appeal.
In the amended appellants brief settled by Dr J. O. Olatoke (SAN) with Oludare W. Akanbi, I. V. Ogiemwonyi (Miss), O. T. Mohammed, three issues were identified for the resolution of the appeal as follows:
(a) Whether having regard to the facts and circumstances of this case, the lower Court is clothed with the requisite jurisdiction to entertain the respondents application for injunction outside the pre-trial conference session.
(b) Whether having regard to the materials placed before the Court, the lower Court ought to make an order for accelerated hearing instead of an order for interlocutory injunction.
(c) Whether the ruling of the lower Court is not against the weight of affidavit evidence.
I humbly adopt the three issues identified, resolving them as argued. In doing so, I am not however unmindful of the established position of the law, to the effect that notwithstanding the absence of any brief from the respondent, appellant must still proceed and argue the appeal. This is in clear sync with the position of the law in that where a judgment appealed against is in favour of the respondent to an appeal, the fact that the respondent fails to file a brief does not create any advantage to the appellant. This is because the appellant is expected to file a brief and to argue the appeal. See Isah vs. INEC (2016) 18 NWLR (pt. 1544) 175 @ 214.
With respect to the first issue, therefore, whether having regard to the facts and circumstances of this case, the lower Court is clothed with the requisite jurisdiction to entertain the respondents application for injunction outside the pre-trial conference session; it was the contention of the learned senior counsel that the lower Court lacked the jurisdiction to entertain the respondents motion seeking for injunction outside the pre-trial conference. He argued that a Court is only competent to entertain a case before it where;
a) It is properly constituted with respect to the number and qualification of its member,
b) The subject matter of the action is within its jurisdiction,
c) The action is initiated by due process of law, and
d) Any condition precedent to the exercise of its jurisdiction has been fulfilled.
He submits that by virtue of Order 33 Rules 3 & 4 of the Kwara State High Court (Civil Procedure) Rules, 2005; a motion can only be entertained during the pre-trial conference session and not at any other time. He further submits that the motion for interlocutory injunction entertained by the lower Court outside the pre-trial session was filed before the pre-trial conference, and no leave of Court was obtained to hear the motion outside the pre-trial conferencing period, thus constituting a gross breach of the rules of Court, and placed reliance on the cases of Ayayi vs. SEC (supra) and Government of Imo State vs. Amuzie (supra).
Further relying on the cases of Oforkire vs. Maduike (2003) 5 NWLR (pt. 812) 166 at 181 per Tobi JSC, counsel stressed that rules of Court are meant to be obeyed maintaining that a Court has no jurisdiction to entertain any application that constitutes an abuse of the Courts judicial process. He made reference to Ntuks vs. NPA (2007) 13 NWLR (pt. 1051) 392 at 419-420 as to what constitutes abuse of Court process, arguing that the substantive suit in respect of which the order of injunction was made was pending before a different judge, while the motion was filed before M. A. Folayan J.
He then drew the Courts attention to Saraki vs. Kotoye (1990) 4 NWLR (pt. 143) 144 at 170 on how an application for an interlocutory injunction based on a pending action can be considered and submits that the lower Court lacked the competence and the jurisdiction to have entertained respondents interlocutory application for an interlocutory injunction.
He concludes that the action of the lower Court including the order made is void, null and of no effect whatsoever. The case of Okpalauzuegbu vs. Ezemeneni (2011) 14 NWLR (pt. 1268) 492 at 525-526 was cited in that regard. I recognise the plank of the appellants complaint to be whether the lower Court in entertaining the respondents application made by way of motion on notice outside the pre-conferencing session was valid, in view of the stipulations of Order 33 Rule 3 of the Kwara State High Court (Civil Procedure) Rules 2005. Although I see with the appellant that rules of Court are meant to be obeyed, as stated in the case of Oforkire vs. Maduike (2003) 5 NWLR (pt. 812) 166 @ 181 cited by the appellants, it is equally trite in that where a party in litigation takes a most irregular, unusual and precipitate action in judicial proceedings, for the sake of action qua litigation as pronounced in the case of Ntuks vs. NPA (2007) 13 NWLR (pt. 1051) 392 @ 419, that would amount to abuse of judicial process. I must however differ with the appellant on his submission that an application as in the instant case cannot be taken outside the pre-trial period.
The lower Court in his judgment dwelt at length on the reason upon which the application was tabled before him, and his reasons for entertaining the application. The rules of the lower Court makes provision for urgent applications. I have been referred to Order 33 Rules 3 and 4 of the Rules of the lower Court by the appellant, and having studiously examined the provision, found it unhelpful to the appellants position. In the same vein all the cases cited by the learned counsel deals with abuse of Court process, and not the appellants main submission on the presentation of the application outside the pre-trial conferencing session as contended.
My humble viewpoint from the rules clearly provided is that interlocutory applications, motions whether exparte or on notice are provided for by Order 11 Rule 1 which states that;
1. Subject to these rules, interlocutory applications may be made at any stage of an action.
On where the application is to be by motion, the rules go on to prescribe the mode of application, and by Rule 4, it is provided that a motion may be heard at any time while the Court is sitting or by a judge in chambers. It may be that learned silk is referring to the practice in our Courts, particularly on election matters, where the consideration of interlocutory applications are only determined at the pre-trial session, the rules having so provided. In the instant case, I have not been convinced that such a rule exists with regard to Kwara State, and I so hold.
Furthermore, by the provision of Order 9(5) (1), to the effect that, notwithstanding the provisions of Rule 4, dealing with the sittings of the Court, any action may be heard by a judge in Court during any of the periods mentioned in Sub-rule (1) (b) or (c) of Rule 4 or Sub rule 2 where the action is urgent. The lower Court at page 168 of the record of appeal identified the fact and rightly too that; by the rules of this Court all cases demanding urgency can be heard during the vacation period and it is not indicated that a vacation Judge cannot entertain a case pending before another Judge if there is urgency to entertain same and therefore held that the Court, considering the facts in the affidavit of urgency in this application of the view that it is in the interest of justice to entertain the application. I cannot fault him on that regard.
I therefore hold that the contention by the learned silk to the effect that the rules of the lower Court prohibits the hearing of applications outside the pre-hearing period as misconstrued, more so when the nature of the application brought during the vacation period is considered. I will rather hold with due respect to the learned senior counsel, that the rules of the lower Court do not preclude an urgent application during the vacation period to be entertained outside the pre-trial session, consequently, the contention by the appellants that such amounted to a miscarriage of justice as unfounded. I resolve the issue against the appellants.
In proffering argument with respect to the second issue distilled, whether having regard to the materials placed before the Court, the lower Court ought to make an order for accelerated hearing instead of an order for interlocutory injunction, it was submitted by the learned senior counsel, that assuming though not conceding, the Court holds that the lower Court had the jurisdiction to entertain the respondents application, it can only make an order for accelerated hearing of the substantive suit instead of granting the application sought. Alluding to the prayer of the respondents in their application, it was submitted that the location of the land upon which the respondents are seeking for an interlocutory injunction and the extent of the disputed land had not been specified. Relying on authorities cited by him, the learned Silk is of the opinion that the interlocutory injunction is not grantable as the condition precedent has not been met.
He further relied on the case of Isyaku vs. Master (2003) 5 NWLR (pt. 814) 443 at 471-472 to argue that when the subject matter of the substantive litigation is not perishable, the better option for the Court is to accelerate the hearing of the substantive suit, contending that the respondents who have no title to the land in dispute cannot override the legal and possessory right of the appellants, as the law will always protect a person in possession, as in the instant case.
On balance of convenience, learned counsel argued relying on the case of Alcatel Kabell Metal (Nig) Plc. vs. Ojuegbele (2003) 2 NWLR (pt. 805) 429 at 456 per Onalaja JCA relying on the case of Akinlose and ors vs. A.I.T Ltd (1961) WRNLR 1 that in granting interlocutory injunction, consideration ought to be given to the balance of convenience.
He posits that in the case being considered, the balance of convenience tilted in favour of the appellants and the Court ought to have decided who will suffer more if the application is granted or refused. On whether the respondents placed before the lower Court any material showing what they will suffer if the application is not granted, learned counsel referred to the case of Yar’adua vs. Lado (2011) 9 SCN 125 at 139 per Mohammed JSC on the need for sufficient materials to be placed before the Court while seeking for its indulgence to exercise its discretion in his favour. He continued to argue that the respondents having failed to establish that they are entitled to the grant of the application, the lower Court ought not to have granted same.
He complained about the situation whereby an applicant approaches a different Court for its application when the substantive suit is before a different Court, and further submits that it is wrong to grant an injunction over a completed act. He alluded to the legal principle of Quic quid plantatur solo cedi in that land being imperishable, the respondents have nothing to lose at the end of the day and the order for injunction can be left to the end pending the determination of the suit. On the third issue canvassed, which is whether the ruling of the lower Court is not against the weight of affidavit evidence, the learned senior counsel submits that the ruling of the lower Court is against the affidavit evidence placed before it, and further that the lower Court took into consideration extraneous matters in arriving at its decision contrary to the holding of Uwais CJN in the case of Orisakwe vs. The State (2004) 12 NWLR (pt. 887) 258 at 286.
He contended that the ruling of the lower Court based on the fact that there was a dispute between communities and therefore the order of injunction must be granted is extraneous, as same is unknown in law. He goes further to contend that the ruling of the lower Court being based on speculation, which ought not to be, the lower Court should have rejected the application, the balance of convenience being in favour of the appellants, furthermore according to learned counsel, an application for injunction is not granted as a matter of course. He posits that there were no reasons adduced for the grant of the application, and the lower Court therefore wrong to have acceded to their request and thus granting the application for interlocutory injunction.
I have in the circumstance given a sober and dispassionate consideration to the arguments of the learned senior counsel, on the issues addressed, and carefully studied the case law cited. My simple answer to the two issues raised and argued is that, it seems the learned silk closed his eyes to the nature of the application.
If I correctly understand the first issue canvassed by the learned silk is that the order made by the lower Court granting the interlocutory injunction was in the circumstance inappropriate, the application being that which borders on land which by its nature is not perishable. In making this argument, the senior counsel relied on the case of Isyaku vs. Masters (2003) 5 NWLR (pt. 814) 443 at 471, where it was held that:
It is however trite that when a subject matter of the substantive litigation is not perishable commodity the better course for the Court to adopt when faced with an application for interlocutory injunction is to accelerate the proceeding and hear the substantive action with a view of saving time and inconvenience instead of hearing or taking arguments on the interlocutory injunction. See Governor of Imo State vs. Anosike (1987) 4 NWLR (pt. 66) 663 @ 672 it is my humble view that the subject matter (res) in the instant case which is land is not perishable commodity rather it is an unmovable property as opposed to corporeal.
He also argued on the authority of the case cited, that where the interest or possession of the subject matter of the application will be affected adversely, the application cannot be granted. The prayer of the respondents before the lower Court was for an order of interlocutory injunction restraining the defendants/respondents by themselves, servants, agents, privies or anyone acting on their behalf from building, constructing, developing, continuing development, entering the land or changing the character of the vacant portion of the land in dispute in any manner whatsoever pending the determination of the substantive suit. Appellants now state that the lower Court ought to have abided by the principle laid down in the case of Isyaku vs. Masters (supra), the res in the action being land which is not perishable. I have earlier captured the prayers of the applicants before the lower Court. The fear expressed by the applicants, as can be seen on their affidavit evidence is premised on the fear of breakdown of peace and order between the two communities laying claim to the vacant land shown by Exhibits B and C.
It is trite that the essence of the grant of an interim injunction is the protection of the existing legal right or claimed legal right from unlawful or perceived unlawful invasion by the adversary. From the affidavit evidence before the lower Court, it is clear that a piece of land is in contention between two communities. It is also clear that the ownership of the said land is in contest before the Court, which invariable is not on seat to attend to the feuding parties because of the vacation period. The Court cannot shut his eyes and knowledge of the incessant communal clashes over land all over him, and I do agree with the lower Court, that the threat of the breakdown of public peace between the two communities, should weigh more in the mind of the judge, as against the legal principle expressed in the case of Isyaku vs. Masters (supra), owing to the circumstance of the case.
A careful examination of the order granted shows that the order was granted pending the determination of the case. Indeed from the records, the order granted since the 12th of October, 2012, ought ordinarily to have been abated all this while, since the substantive case must have been determined. In that regard the appellants contention that the lower Court acted on extraneous matters cannot also be sustained. Tobi JSC in the case of UTB Ltd vs. Dolmetsch Pharm. (Nig.) Ltd (2007) 16 NWLR (pt. 1061) 520, considered what a Court should take into consideration in granting an application of interim injunction, which includes, the existence of real urgency, and a right by the applicant to prevent the violation of which he seeks to prevent, and to seek that the stage of proceedings in which they are in, be maintained, the gravity of the injury and loss.
I am at one with the lower Court that going by the affidavit evidence before him and the circumstance and peculiarities of the case before him, the Court granting an interlocutory order for the preservation of peace between the two communities is in consonance with the Courts duty and therefore unimpeachable. I take refuge in the words of my Lord I. T. Muhammad JSC, in the case of Okpe vs. Fan Milk Plc (2017) 2 NWLR (pt. 1549) 282 @ 311, where he stated thus:
Furthermore, interest of justice connotes such interests, aspirations and or attempts to achieve justice in a given case or situation. The whole goal is the achievement of justice. Justice is fair and proper administration of laws, whereas anything done in the interest of justice is done in pursuance of fairness to all the parties in a case without compromising the principle of the law and evidence under consideration which as of right entitle successful party to judgment.
I am also of the firm view that the grant of the applicants order of interim injunction to the determination of the case, would not prejudice either of the parties, it being clear that the injunction is in respect of the area of land not under development. I will in the circumstance resolve issues two and three against the appellants.
All the issues having therefore been determined against the appellants, this appeal must fail, and it is hereby dismissed by me. I make no order as to costs.
MOJEED ADEKUNLE OWOADE, J.C.A.: I had read in advance the Judgment just delivered by my learned brother, HAMMA AKAWU BARKA, JCA. His lordship has comprehensively dealt with the issues that arose in the Appeal and resolved same. I agree with the reasoning and conclusion therein. I also dismiss the appeal. I abide with the consequential Order.
CHIDI NWAOMA UWA, J.C.A.: I read in advance the judgment of my learned brother, HAMMA AKAWU BARKA, JCA. I agree with his reasoning and decision arrived at in holding that the appeal lacks merit. I adopt same as mine and also dismiss the appeal for the same reasons. I abide by the order made as to costs in the leading judgment.
Appearances:
O. W. Akanbi Esq. with him, K. A. Aminu Esq. For Appellant(s)
For Respondent(s)
