MADAM ABIOSE ABEGBE & ORS. V. FASASI KOBIOWU & ANOR.
(2011)LCN/4661(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 29th day of June, 2011
CA/I/71/2002
RATIO
IDENTITY OF A LAND IN DISPUTE: WHAT IS THE ACID TEST FOR ASCERTAINING THE BOUNDARIES OF A PIECE OF LAND IN DISPUTE
It is not in doubt that the parties know the piece of land that they are contesting ownership of among themselves. Giving the land in dispute different name tags does not change its identity. It still remains the land in dispute. In ATE KWADZO V. ROBERT KWASI ADJEI 10 WACA 274 the West African Court of Appeal held that in the ascertainment of boundaries of a piece of land in dispute the acid test is whether a surveyor taking the record could produce a plan showing accurately the land to which title has been given. See generally DOSUNMU v. JATO (1987) 4 NWLR (PART 65) 297; CHUKWUEKE & ANOR V. OKORONKWO & ORS (1999) 1 SCNJ 44. Appellants’ contention that to show identity of the land Respondents should have produced a survey plan is therefore not the position of the law. In WAHAB MABERI V. CHIEF ALADE & ORS (1987) 4 SC 184 at 186 the Supreme Court Considered the following as descriptive of the land in dispute – “On one side is Gbelugbelu stream. On another side is Alese family land at Ogbegun stream. On another side is Parakoyi family land. On another side is the old foot path demarcating our boundary. PER STANLEY SHENKO ALAGOA, J.C.A.
INTERLOCUTORY INJUNCTION: FACTORS THAT MUST BE CONSIDERED BY THE COURT IN THE CONSIDERATION OF WHETHER OR NOT TO GRANT AN ORDER FOR INTERLOCUTORY INJUNCTION INTO CONSIDERATION
It is now settled on the authorities that in the consideration of whether or not to grant an order for interlocutory injunction, the Court must take the following factors into consideration- (i) The strength of the Applicant’s case. Is there a real possibility not a probability of success at the trial? (ii) Balance of Convenience. The applicant must show that the balance of convenience is on his side that is that more justice will be done by granting the application than in refusing it. (iii) The applicant must show that damages cannot be an adequate compensation for his damage if he succeeds at the end of the day. (iv) Conduct of the parties. (v) The Applicant must show that there is a serious issue to be tried. (vi) A satisfactory undertaking as to damages saves in recognized exceptions. See generally the following cases NATHANIEL ADEDAMOLA BABALOLA KOTOYE V. CENTRAL BANK OF NIGERIA & 7 ORS (1989) 1 NWLR (PART 98) 419 at 441 paragraphs C-H; OBEYA MEMORIAL SPECIALIST HOSPITAL V. ATTORNEY GENERAL OF THE FEDERATION & ANOR (1987) 3 NWLR (PART 60) page 325 at 340; AMERICAN CYAMID CO. V. ETHICON LTD (1975) AC 407-409; (1975) 1 All ER 504; PROFESSOR MOJISOLA A.O. SOYANWO & ANOR V. AKIN AKINYEMI (2001) 8 NWLR (PART 714) 95 at 124 paragraphs C-G; WEST AFRICAN OIL FIELD SERVICES V. PELFACO LTD (1994) 1 NWLR (PART 319) 164 at 189; NIGERIAN CIVIL SERVICE COMMISSION V. ESSIEN (1985) 3 NWLR (PART 12) 306; SARAKI V. KOTOYE (1990) 4 NWLR (PART 143) 144 at 189. The list of authorities is inexhaustive. PER STANLEY SHENKO ALAGOA, J.C.A.
JUSTICES:
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
1. MADAM ABIOSE ABEGBE
2. TAIRU AGBOOLA
(For themselves and on behalf of Osunseni Family)
3. MURITALA ALIMI
4. ALFA OLAIDE
5. MADAM MISITURA RASIDI
6. PASTOR OBAFUNMISO
7. PASTOR OGUNMODEDE
8. PASTOR ANIMASHAUN – Appellant(s)
AND
1. FASASI KOBIOWU
2. ALHAJI SADIKU KOBIOWU
(For themselves and on behalf of Kobiowu Family) – Respondent(s)
STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment): By a motion on Notice dated the 22nd January 2001 and supported by a 17 paragraph affidavit., the present Respondents as Plaintiffs sought from the High Court of Justice sitting at Ibadan, Nigeria, the following orders .-
“An Order of Interlocutory Injunction restraining the defendants, their servants, agents and privies from digging the land for building purposes, commencing and continuing building operations on the land, digging the land for extraction of sand, leasing and alienating any part of the land in dispute pending the final determination of the substantive suit in this case and for such, further order or other orders as this Honourable court may deem fit to make in the circumstances.
The Appellants as defendants in the court below filed an 18 paragraph counter affidavit on the 26th March 2001. The motion went on to be argued by both Counsel for the parties and in a considered ruling delivered by Jimoh J. on the 19th June 2001, the Court ruled in favour of the plaintiffs and granted the orders sought by them. It is this ruling that is being appealed against by the defendants now Appellants.
The Plaintiffs’ affidavit in support of their motion reads as follows –
I, Alhaji Sadiku Kobiowu, Male, Carpenter, Nigerian of S2/81 Kobiowu’s Compound, Oranyan Ibadan, make oath and state as follows: –
1. That, I am the second plaintiff/Applicant in this Motion.
2. That I have the authority of the other Plaintiff and members of my family to swear to this affidavit.
3. That our, claims against the Defendants in this case are:
1. A declaration that the plaintiffs’ family, are entitled to a Statutory Right of Occupancy in respect of the Land in dispute Situate, lying and known, as, Osunseni Village, near the New Airport about 8 Kilometers to Mapo Hall, bounded by Ikuogbolekun, Sarumi and Apata family lands.
2. A, declaration that Osunseni family represented by the first and second Defendants have incurred forfeiture, under native law and custom of the land in dispute, which they occupy as plaintiffs’ family’s Customary tenants at Osunseni, by reason of misconduct by denying the title of the Plaintiffs’ family to the land, refusing to pay Ishakole, and selling portions of the land to others.
3. As against the third to eight Defendants
N1,000 damages against each of the 3rd, 4th, 6th 7th and 8th Defendants for continuing trespass committed on the land in dispute.
4. An order that the Defendants do deliver up possession of the said land, to the plaintiff.
5. Injunction restraining the Defendants their servants, agents, privies and, those claiming through them from further coming to the land in dispute.
4. That between Osunseni Village and Sarumi family land there is L shaped wall fence which demarcated two sides of osunseni village from Sarumi Village; that between Ikuogbolekun and Apata family land and Osunseni village there is a stream called Osun which runs through the remaining two sides of Osunseni-Village.
5. That sometime it December 2000, I visited Osunseni Village in company of Lasisi Kobiowu, my Cousin.
6. That we observed that about five structures which were on D. P. C. level and stopped when we sued the Defendants to court had been built up to level and, are now ready to be roofed.
7. That we also observed that sand is extracted in an area close to the wall fences demarcating Osunseni to Sarumi’s land.
8. That as we did not authorise any one to extract sand we queried those met on site, they explained that someone in the Village authorized them to extract the sand.
9. That unless restrained the workers will dig the Soil to a fault whereby any development of the area will cause much more money than is necessary.
10. That the whole Village is about 10 acres in area and that if, we allow houses to spring up here and there in the Village, the space there will soon get exhausted.
11. That our compound at Oranyan have been developed to its, full capacity, that the family may not find it easy to direct members of our family to land in dispute to make use of part thereof, unless the Respondent are restrained from further building on the land in dispute.
12. That it was the sale of part of our land at Osunseni by inmate of the village that some of the grandchildren of Osunseni are selling lands to others.
13. That it was the sale of part our land at Osunseni land by the inmates that started trouble amongst them whereby our attention at Kobiowu Compound was directed to the place.
14. That it was thereafter that went to the village and saw that about two houses had been completed and that about five others are in various stages of development.
15. That when I visited the site last week, the number of completed houses had increased to six while the uncompleted had increased to about twenty.
16. That we are ready to enter into recognisance to pay, damages to the Respondents if it turns out that the Respondents should not have been restrained.
17. That I make this oath in good faith believing same to be true.
The defendants/counter affidavit at page 26 of the Record of appeal reads as follows:
I, Taru Agboola, Male, Businessman, and Nigerian, of Osunseni Village do make oath and say as follows:-
1. That I am the second Defendant in this suit.
2. That I have the authority of all the Defendants to swear to this affidavit.
3. That I have seen the affidavit in support of the motion on notice dated 22-01-2001 and say paragraph 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 & 17 are UNTRUE.
4. That the 1st & 3rd Defendants being the owners of the lands in Osunseni Village have continued to exercise various act of ownership on the land.
5. That in furtherance of Paragraph 4 above, we have built many houses on the land prior to the time we are taken to courts and some of our members also sold their interest in the lands.
6. That when we were taken to court our lawyer told us that our members building on the land should stop and we complied.
7. That the writ of summons of the Plaintiffs were dated 8-09-99 but when they were unable to effect personal service they did not file a motion for substituted service until 19-1-2000 which was granted on 9-2-2000.
8. That the enrolment of order for substituted service and writs of summons were served on 2-3-2000.
9. That since 27-3-2000 the Plaintiffs only filed their statement of claim on 16-10-2000 (a time lag of 7 months and 19 days instead of 60 days given to them by law).
10. That the plaintiffs did not file their statement of claim until the Defendant filed and served a motion on notice dated 10-10-2000 praying for the striking out of the Plaintiffs’ case for wants of diligent prosecution. The said motion is still before this Honourable court.
11. That the Plaintiffs’ Counsel fail (sic) to appear in court on 16-10-2000 when the case was still before Honourable Justice Adeniji and consequently they did not regularize their statement of claim which was later regularized on 7-3-2001.
12. That with specific reference to paragraph 6 of the affidavit in support of the motion, it was after some of our family members, notice (sic) that, the Plaintiffs are not interested in prosecuting their case that they resumed the building of their houses which they had earlier stopped and since this motion was served on us we have been told to stop by our lawyer, we have complied.
13. That in plaintiffs know that they do not have a good case this is why it took them over one year to file and regularise their statement of claim.
14. That with specific reference to paragraphs 7 & 8 of the affidavit in support of the motion, some of our members are earning their living on the said land and should they be restrained they will be jobless and have no means of livelihood.
15. That if this Honourable court to grant us expeditious hearing of this case.
16. That we want this Honourable court to grant us expeditious hearing of this case.
17. That damages cannot compensate for the loses (sic) we are going to incur if this Honourable court should grant plaintiff’s prayer.
18. That I swear to this affidavit in good faith.
Arguments of counsel were in line with the affidavit evidence and the averments in the respective pleadings. The Learned trial Judge made a restraining order of interlocutory injunction against the defendants from digging the land for building purposes, commencing and continuing building operation on the land; digging the land for excavation of sand, leasing and alienating any part of the land in dispute pending the final determination of this case.
The defendants as Appellants filed a Notice of Appeal contained at pages 46-50 of the Record of appeal. The said Notice of Appeal consists of eight grounds listed hereunder:-
(1) The learned trial judge misdirected himself when he failed and/or neglected to pronounce on the Defendants’ counsel’s application urging him to strike out paragraph 12 of affidavit in support of the motion on notice dated 22/01/2001 and filed on 23/01/2001.
(2) The learned trial judge erred in law when he held that the plaintiffs have legal right to the land in dispute.
(3) The learned, trial judge erred in law when he held that the Defendants by their paragraphs 12 and 14 of their counter affidavit admitted, some of the averments in the affidavit in support of Motion on Notice.
(4) The learned trial judge erred in law when he failed to consider where the balance of convenience lies.
(5) The learned trial judge erred in law when he failed to consider whether damages to be suffered by the plaintiff could be adequately compensated.
(6) The learned trial judge erred in, law when he failed to exercise his discretion judicially and judiciously.
(7) The learned trial judge erred in when the failed to pronounce on conduct of the plaintiffs.
(8) The learned trial judge erred in law when he failed to extract an undertaking as to damage; from plaintiff.
The appeal came up for hearing on the 18th April 2011. Counsel for the appellants Musibua -Adetunbi him K. K. Oyerinde adopted the Appellants’ Brief of Argument dated the 22nd May 2003 and filed same day but deemed properly filed on the 11th November 2003 and urged this court to allow the appeal.
Chief Abimbola Ajibola counsel for the Respondents also adopted and relied in the Respondents, brief of Argument dated the 2nd December 2003 and filed on the 4th December 2003 and urged the court to dismiss the Appeal and affirm the Ruling of the trial court below.
The Appellants at page 2 paragraph 3.0 of their Brief of Argument formulated, the following four issues for, the determination of this appeal which issues are as follows –
1. Was the learned trial Judge right to have granted an order of interlocutory injunction in respect of a piece of land that has not been precisely ascertained? (Ground 2)
2. Whether paragraph 12 of the affidavit in support of the motion dated 22nd January 2001 and filed on the 23rd January 2001 negates sections 88 and 89 of the Evidence Act Cap 112 LEN (sic) and if so has the failure to strike it, out occasioned a miscarriage of justice to the defendants. (Ground 10)
3. Taking into consideration the circumstances of this case, has the learned trial Judge properly and adequately considered all necessary factor guiding the granting or refusal of interlocutory injunction and as such exercised his discretion judicially and judiciously. (Grounds 4, 5, 6, 7 & 8)
4. Whether paragraphs 14 and 15 of the counter affidavit amounted to admission or a defence of confession and avoidance. (Ground 3)
The respondents distilled the following two issues in paragraph 3.00 at page 2 of their Brief of Argument for the determination of this appeal. The Issues are as follows –
1. Whether the land in dispute is certain circumstances of this case; and
2. Whether the trial court was right in granting the interlocutory injunction pending the determination of the case.
I consider the issues formulated by the Appellants in their Brief of Argument somewhat proliferated and the Respondents’ Issues as distilled in their Brief of Argument sufficient to properly dispose of the appeal.
Issue 1 is whether the land in dispute is certain and known to the parties. This in effect is the same as issue 1 in the Appellants’ Brief of Argument.
Appellants’ counsel has submitted at page 3 of their Brief of Argument that paragraph 4 of the supporting affidavit of the Respondents has been relied upon by the, Respondents in proof of the identity of the land in dispute when there is nothing in that averment that described the land in dispute. The said paragraph 4 states as follows –
“That between Osunseni Village and Sarumi family land there is a shaped wall fence which demarcated two sides of Osunseni Village from Sarumi Village: that between Ikuogbolekun and Apata family lands and Osunseni Village there is a stream called Osun which runs through the remaining two sides of Osunseni Village.”
Reference was also made by the Appellants to paragraphs 4 and 8 of the plaintiffs/Respondents statement of claim as descriptive of the land in dispute by the plaintiffs/Respondents which was specifically denied by the defendants/Appellants in paragraph 2 of their statement of defence. Other paragraphs of the defendants/Appellants’ statement of defence which deny plaintiffs/Respondents’ claim apart from paragraph 2 are paragraphs 8 and 28. Appellants then went on to submit that if one were to contrast paragraphs 4 and 28 of the statement of claim on one hand with paragraphs 8 and 28 of the statement of defence the following differences are obvious –
(i) The parties are not talking of the same boundary families.
(ii) The Plaintiff is talking of a piece of land that is 8 km to Mapo hall while the defendants are talking of a piece of land that is 5 km to Mapo Hall.
(iii) The Defence clearly pleaded that its land is no where referred to in the statement of claim.
Citing BABATOLA V. ALADEJANA (2001) 12 NWLR (PART 728) 59, Appellants submitted that the issue of identity of the land in question had, not been established with certainty and that the only way in which the learned trial Judge would have granted an order of interlocutory injunction was to have a dispute survey plan placed before him by the Respondents. Reliance was placed for this proposition on the case of OSANYANBI V. SOKEMU (2001) 3 NWLR (PART 699) 170 at 172. In the alternative the description of the land in the statement of claim and/or the affidavit must be such that a Surveyor supplied with the description of the land should be able to go there and prepare an accurate survey plan, the Appellants’ Counsel further submitted. There was no such survey plan and no precise description of the land and the learned trial Judge should have refused to grant the order for interlocutory injunction, Appellants’ Counsel stated. He relied further on the following cases – ROTIMI & ORS V. MACGREGOR (1970) 1 All NLR p. 323; OLUWI V. ENIOLA (1967) NMLR 339; OJO V. AZAMA (2001) 4 NWLR (PART 702) 57 at 67; KYARI V. ALKALI (2001) 11 NWLR (PART 724) at 421; OKABULU V. ABBAH 2 NWLR (PART 77) 496 at 502.
The Respondents for their part have submitted in their Brief of Argument at page 2 that in both their statement of claim in paragraphs 4 and 28 and in paragraphs 3(1) and 4 of their supporting affidavit that the land in dispute is identifiable by both parties in the sense that it relates to Osunseni Village as opposed to a piece of land in Osunseni Village. He referred to paragraph 3(1) of the Respondents’ supporting affidavit where the Respondents claimed –
“A declaration that the Plaintiffs’ family are entitled to a statutory right of occupancy in respect of the land in dispute situate, lying and known as Osunseni Village near the new Airport about 8 kilometres to Mapo Hall bounded by Ikuegbolekun, Sarumi and Apata family lands.”
By this description the Respondents claimed the whole of Osunseni Village. The Respondents went on to further submit that they further described the boundaries of the land known as Osunseni Village as follows –
“That between Osunseni Village and Sarumi family land, there is “L” shaped wall fence which demarcated two sides of Osunseni village from Sarumi village; that between, Ikuegbolekun and Apata family lands and Osunseni Village there is a steam called Osun which runs through Village.”
The Respondents went on to pose this question –
“If the Respondents claim a declaration to the whole of osunseni village near the Airport and the Appellants also claim that Osunseni family owned and counter claimed for osunseni Village wherein the family and their grantees built houses and extract sand which is the subject of the Respondents’ grievances, how then can it be said that the land in dispute which is Osunseni Village land is not identifiable and known to the parties?”
Respondents went further to submit that in a situation such as this what is required of the Respondents is the establishment of features and boundaries which a surveyor can and produce” a plan. Reference was on the made to ADOMBA V ODIESE (1990) 1 SCNJ 135 at 144. From the description of the boundaries of Osunseni Village described by the Respondents a surveyor can pick up the features and produce a survey plan. Reliance was placed on KWADZO V. ADJA 10 WACA 274. Respondents submitted that the mere fact of ascribing different names to some boundaries of Osunseni village as the defendants have done would not make the land in dispute unidentifiabte. Reliance was placed oh ONWUKA V. EDIALA (1989) 1 NWLR (PART 96) 182 at 198; MAKANJUOLA v. OYELAKIN BALOGUN (1989) 5 SCNJ 42 at 50. Respondents submitted that the Appellants must be taken as having admitted the specific and distinctive averment contained in paragraph 4.03 of the Respondents’ brief since the Appellants did not controvert same and the Appellants’ own description was evasive. There aren’t two Osunseni villages and both parties are laying claim to the same Osunseni Village and distances of 8 km and 5 km from Mapo Hall to Osunsen, Village may well depend on the route taken, Respondent’s Counsel asserted.
Is the land in dispute certain and known to the parties? To answer this question it is necessary to look at the averments and depositions of the Respondents in their statement of claim and affidavit in support of motion for an order of interlocutory in injunction and compare these with those of the Appellants in their statement of defence, counter claim and counter affidavit to the Respondents’ motion for interlocutory injunction. Paragraphs 4 and 28 of the Respondents’ statement of claim as reproduced from pages 18 and 21 of the Record of Appeal are as follows:-
Paragraph 4 –
“That the land in dispute is near the New Airport, Ibadan, situate lying and being and known as Osunseni Village, bounded by Sarumi family lands Ikuogbolekun family land and Apata family land.”
Paragraph 28 –
“Further on paragraph 4 of the statement of claim the plaintiffs state that the land in dispute is about 8 km to Mapo Hall Ibadan, that between Sarumi family land and Osunseni Village, there is a wall fence which demarcated the two sides of Osunseni village from Sarumi family land. Between Ikuogbolekun and Apata family land and, Osunseni, there is a stream called Osun which runs through the remaining two sides of Osunseni Village.”
Paragraphs 3(1) and 4 of the Respondents’ motion for interlocutory injunction read as follows as reproduced from page 23 of the Record of Appeal –
Paragraph 3(1) –
“That our claims against the defendants in this case are –
1. A declaration that the plaintiffs’ family are entitled to a Statutory Right of Occupancy in respect of the land in dispute, situate, lying and known as Osunseni Village near the New Airport about 8 Km, to Mapo Hall, bounded by Ikuogbolekun, Sarumi and Apata family lands.
Paragraph 4-
“That between Osunseni Village and Sarumi family: land, there is L shaped wall fence which demarcated two sides of Osunseni Village from Sarumi Village; that between Ikuogbolekun and Apata family lands and Osunseni Village there is a stream called Osun which runs through the remaining two sides of Osunseni Village.”
What is certain from these depositions and averments is that the Respondents are referring to the whole of Osunseni Village land. That the Appellants are referring to one and the same Osunseni Village land irrespective of whatever name they have given to its description is borne out by the following paragraphs of their counter affidavit to the Respondents’ motion for interlocutory injunction –
Paragraph 4 –
“That the 1st-3rd defendants being the owners of the land in Osunseni Village have continued to exercise various acts of ownership on the land.”
Paragraph 5 –
“That in furtherance of paragraph 4 above we have built many houses on the land prior to the time taken to we are court and some of our members also sold their interest in the lands.”
Paragraph 12 –
“… It was after some of our family members notice that plaintiffs are not interested in prosecuting their case that they resumed the building their houses which they had earlier stopped…”
Paragraph 14 –
Some of our members are earning their living and on the said land and should they be restrained they will be jobless and have no means of livelihood.”
What better admission can there be to show that the Appellants are referring to one and the same osunseni land upon which the Respondents are seeking to restrain them by an interlocutory court injunction.
Furthermore in paragraph 3 of their statement of defence at page 29 of the Record of Appeal the Appellants as defendants referred to themselves as –
“lawful owners of all the pieces of land lying and situate at Osunseni Village except the pieces of land they have sole of (sic) their interest to the 6th to 8th defendants and any other buyer that may be shown in evidence.”
In their Counter claim at page 35 of the Record of appeal the Appellants claimed –
“A declaration that the piece of land lying at Osunseni Village was acquired by the ancestors Akinwunmi and Asabi.”
It is not in doubt that the parties know the piece of land that they are contesting ownership of among themselves. Giving the land in dispute different name tags does not change its identity. It still remains the land in dispute. In ATE KWADZO V. ROBERT KWASI ADJEI 10 WACA 274 the West African Court of Appeal held that in the ascertainment of boundaries of a piece of land in dispute the acid test is whether a surveyor taking the record could produce a plan showing accurately the land to which title has been given. See generally DOSUNMU v. JATO (1987) 4 NWLR (PART 65) 297; CHUKWUEKE & ANOR V. OKORONKWO & ORS (1999) 1 SCNJ 44.
Appellants’ contention that to show identity of the land Respondents should have produced a survey plan is therefore not the position of the law. In WAHAB MABERI V. CHIEF ALADE & ORS (1987) 4 SC 184 at 186 the Supreme Court Considered the following as descriptive of the land in dispute –
“On one side is Gbelugbelu stream. On another side is Alese family land at Ogbegun stream. On another side is Parakoyi family land. On another side is the old foot path demarcating our boundary?”
Whether the Respondent said Osunseni is 8 km from Mapo Hall and the Appellant said Osunseni land is 5 km from Mapo Hall is immaterial to the identity of the land Osunseni Village land: It is common knowledge that distances vary depending on the routes taken. In any case the depositions of the Appellants in paragraphs 4, 5 and 12 of the counter affidavit to the Respondents’ motion for interlocutory injunction, paragraph 3 of the Appellants’ statement of defence as well as relief (i) of the Appellants’ counter claim earlier reproduced and dealt with here are an admission by the Appellants against interest and even without more leave no one in any doubt as to the identity of the land which is known by both parties. See OTIEGBE V. OKWARANYIA (1962) 2 SCNLR 356; ADEOYE ADIO FAGUNWA & ANOR V. CHIEF NATHANIEL ADIBI & 2 ORS (2004) 17 NWLR (PART 903) PAGE 544 at 566; OKAI V. AYIKAI (1946) 12 WACA 31; SALAMATU V. BIBA (1975) NNLR 176. I therefore hold that the land in dispute is certain and known to the parties. Accordingly Issue. No. 1 is resolved in favour of the Respondents against the Appellants.
Issue No. 2 is whether the learned trial Judge was right in granting injunction pending the determination of the case.
It is now settled on the authorities that in the consideration of whether or not to grant an order for interlocutory injunction, the Court must take the following factors into consideration-
(i) The strength of the Applicant’s case. Is there a real possibility not a probability of success at the trial?
(ii) Balance of Convenience. The applicant must show that the balance of convenience is on his side that is that more justice will be done by granting the application than in refusing it.
(iii) The applicant must show that damages cannot be an adequate compensation for his damage if he succeeds at the end of the day.
(iv) Conduct of the parties.
(v) The Applicant must show that there is a serious issue to be tried.
(vi) A satisfactory undertaking as to damages saves in recognized exceptions.
See generally the following cases NATHANIEL ADEDAMOLA BABALOLA KOTOYE V. CENTRAL BANK OF NIGERIA & 7 ORS (1989) 1 NWLR (PART 98) 419 at 441 paragraphs C-H; OBEYA MEMORIAL SPECIALIST HOSPITAL V. ATTORNEY GENERAL OF THE FEDERATION & ANOR (1987) 3 NWLR (PART 60) page 325 at 340; AMERICAN CYAMID CO. V. ETHICON LTD (1975) AC 407-409; (1975) 1 All ER 504; PROFESSOR MOJISOLA A.O. SOYANWO & ANOR V. AKIN AKINYEMI (2001) 8 NWLR (PART 714) 95 at 124 paragraphs C-G; WEST AFRICAN OIL FIELD SERVICES V. PELFACO LTD (1994) 1 NWLR (PART 319) 164 at 189; NIGERIAN CIVIL SERVICE COMMISSION V. ESSIEN (1985) 3 NWLR (PART 12) 306; SARAKI V. KOTOYE (1990) 4 NWLR (PART 143) 144 at 189.  The list of authorities is inexhaustive.
As to the strength of the Applicants’ case i.e. whether they have a legal right worthy of protection for which an interlocutory injunction is sought and whether there is a real possibility not a probability of success at the end of the trial, the Appellants have submitted in the Brief of Argument that in so far, as the respondents/Applicants (plaintiffs, in the court below) failed and/or neglected, to identify the land in dispute, they (Respondents) have not shown that they have a legal right to the land in dispute, and therefore the issue of reasonable chance of success does not arise. The Appellants went further to submit that the possibility of the Respondents succeeding becomes a matter of serious doubt in the absence of a survey plan showing the land in dispute. Reference was made to OSANYANBI V. SOKEMU (2001) 3 NWLR (PART 699) 170-172 RATIO 2.
The Respondents on their part have submitted that the consideration of the Court at this stage is for a determination whether on the facts, the Respondents- have disclosed any rights in respect of the subject matter of the substantive action. They referred to paragraphs 5, 6, 7, 8, 11, 12, 13, 15, 22, 23, 24, 25, 26 and 29 of their statement of claim in the court below on pages 18-21 of the Record of Appeal as well as paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of their affidavit in support of their motion for interlocutory injunction at pages 40-41 of the Record of Appeal and submitted that there is a serious issue to be tried and that they (Respondents) have a real possibility of succeeding at the trial and that there are sufficient facts to persuade the court to keep the parties in the position in which they were before the violation of their rights complained of. Reliance was placed on GLOBE FISHING INDUSTRTES V. COKER (1990) 11 SCNJ 56 at 72-73.
As has been seen Appellant main argument here is that the land in dispute has not been identified and can only be identified with the production of a survey plan. Earlier in this write-up I had stated that a survey plan was not necessary at this stage of the proceedings and what was necessary was for the Respondents to so describe the land in question that a surveyor if called upon could produce a survey plan from it. This is the decision of the Supreme Court in WAHABI MABERI V. CHIEF OYENIYI AIADE & ORS (supra) where the Supreme Court granted a declaration to the plaintiffs/Respondents on the land in dispute described hereunder as:
“On one side is Gbelugbelu stream… On another side is Alese family land at Ogbegun stream. On another side is Parokoyi family land. On another side is the old foot path demarcating our boundary?”
I had referred to paragraphs 3(1) and 4, of the Respondents’ motion at page 23 of the Record of Appeal wherein the Respondents gave a description of the land in dispute and it has become necessary to repeat same if only to properly drive home the point being made –
Paragraph-3(1)
“A declaration that the plaintiffs’ family, are entitled to a Statutory Right of Occupancy in respect of the land in dispute, situate, lying and known as Osunseni village near the New Airport about 8km to Mapo Hall bounded by Ikuogbolekun; Sarumi and Apata family lands.
Paragraph 4 –
“That between Osunseni Village and Sarumi family land, there is L shaped wall fence which demarcated two sides of Osunseni Village from Sarumi Village; that between Ikuogbolekun and Apata family lands and Osunseni village there is a stream called Osun which runs through the remaining two of sides of Osunseni village.”
Indeed the Appellants unwittingly admitted that what was necessary was for a description of the land to be given in such a way that a surveyor could rely on such description to produce a survey plan of the land in dispute by, relying on the case of BABATOLA V. ALADEJANI (2001) 12 NWLR (PART 728) 597 at 610 paragraph E to p. 614 paragraph G at page 612 paragraphs E-9 at page 3 of the Appellants’ Brief of Argument where Mohammed JSC said thus –
“The issue of identity of land trespassed upon was contested vigorously by both parties at the trial court. In a land dispute the boundaries of the land in dispute must be proved with certainty such that a Surveyor taking the record could produce a survey plan showing with accuracy the land in dispute.”
(Underlining mine for emphasis.)
Earlier in this write-up, I had also made references to paragraphs 4, 5 and 12 of the Counter Affidavit of the Appellants qt pages 26 and 27 of the Record of Appeal, paragraph 3 of the statement of defence at page 29 of the Record and the relief sought by the Appellants in their counterclaim at page 35 of the Record of Appeal which all show that the Appellants are not in doubt as to the identity of the land and which admissions are against their interest at least as against the identity of the land. What is required at this stage is for the Respondents to show such facts as are necessary to keep the land in dispute which as we have seen is Osunseni Village in status quo until the final determination of the case. From their disclosures in their statement of claim and affidavit in support of their motion for interlocutory injunction, Respondents have shown that they have a real possibility as distinguished from a PROBABILITY of success at the trial.
With respect to the balance of Convenience, Appellants have expressed doubts -whether the learned trial Judge considered where the balance of convenience would lie as between the parties and later came to the conclusion that the balance of convenience was never considered by the trial Judge below. The Appellants therefore went on to submit that on the authorities of KOTOYE V. CBN (supra) pp. 441 paragraphs E-F and NIGERIAN GAS CO. LTD. v. ONWUBIYA (1998) 10 NWLR (PART 569) 322 at 325 ratio 4, the learned trial Judge is bound to consider where the balance of convenience lies which he failed to do. The Appellants also submitted that if the learned trial Judge had carefully examined- the cases of AMERICAN CYRAMID V. ETHICON (supra) and AKAPO V. HAKEEM HABEEB (supra) he would have held that the balance of convenience lay with the Appellants.
The Respondents on their part have referred to paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of the affidavit in support of their motion for interlocutory injunction which were admitted in paragraphs 5, 6, 12 and 14 of the counter affidavit of the Appellants’ paragraphs 6-15 of the affidavit in support of the Respondents’ motion for interlocutory injunction which are a reference to the continuous construction of houses on the land in dispute by the Appellants, some houses constructed to completion, digging of sand which will render the soil faulty and the continuous sale of portions of the land by the Appellants all of which ought to be restrained by the Court. On the other hand paragraphs 5, 6, 12 and 14 of the Counter affidavit of the, Appellants to the said motion of the Respondents for interlocutory injunction are an admission by the Appellants that they (the Appellants) have built many houses on the land even before legal action was instituted while some of the Appellants had even sold their interest on the land. The Appellants by those paragraphs also admitted that with the advice of their lawyer they have stopped further construction of houses on the land in dispute and that it was after some of the family members noticed that the Respondents were not interested in prosecuting the case that they resumed construction of the buildings, which they had earlier stopped. Should the Appellants be restrained some of them who earn a living on the land will be jobless and have no means of livelihood. The Appellants, have made specific reference to paragraphs 14 and 15 of their Counter affidavit and the comment of the learned trial Judge.
Paragraph 14 states as follows –
“That with specific reference to paragraphs 7 and 8 of the affidavit in support of the motion, some of our members are earning their living on the said land and should they be restrained they will be jobless and have no means of livelihood
Paragraph 15 –
“That if this Honourable court should restrain us the plaintiffs who are not interested in prosecuting their case would abandon it and leave us to suffer.”
With all these averments on whom does the balance of convenience lie? Who stands to suffer more if the interlocutory injunction sought by the Respondents is not granted? The onus is again on the Respondents to discharge. See MISSINI V. BALOGUN (1968) 1 ALL NLR 318. From the deposition in paragraphs 6, 7, 8, 9, 10, 12, 13, 14 and 15 of the Respondents’ Supporting affidavit, I think it can safely be said that, the Respondent stand to lose more if the interlocutory injunction sought by them is refused. The continuous excavation of the land, continuous construction and completion of houses, continuous sale of portions of the land in dispute are bound to create more problems for the Respondents should they at the end, emerge victorious. The Appellants, in their counter affidavit have admitted that on the advice of their lawyer they in fact had stopped further building on the land only to resume building when it became clear to them that the Respondents were not prosecuting the case. That meant that they could stop building and possibly also stops other acts inimical to the interest of the Respondents without their livelihood being threatened until the disposal of the case. Thus more justice will be done by granting the interlocutory injunction than refusing to grant, same. See IKECHUKWU V. IWUGO (1989) 2 NWLR (PART 101) 99; KOTOYE.V. CBN (supra).
On the question of damages i.e. whether damages will compensate the respondents for the injuries that will arise if the interlocutory injunction is not, granted, Appellants have quite rightly stated in their Brief of Argument in paragraph 5.12 at page 12 that facts which are relevant in this regard are the same when considering the issue of balance of convenience and that the view of the learned trial Judge that the Respondents will not be adequately compensated in money is not borne out of evidence and so is, liable to be set aside. If the Appellants would be able to pay damages no interlocutory injunction would be granted. See ORJI V. ZARIA INDUSTRIES (1992) 1 SCNJ 29 at 40. Paragraphs 9, 10, 11, 13 and 15 of the Respondents’ supporting affidavit are instructive –
9- “That unless restrained the workers will dig the soil to a fault whereby any development of the area will cause much more money than is necessary,”
10 – “That the whole village is about 10 acres in area and that if we allow houses to spring up here and there in the village, the space there will soon get exhausted'”
11- “That our compound at Oranyan have (sic) been developed to its full capacity that the family may not find it easy to direct members of our family to land in dispute to make use of Part thereof unless the respondents (sic) (Appellants) are restrained from further building on’ the land.”
13 – “That it was the sale of part of our land at Osunseni by the inmates that started trouble amongst them whereby our attention at Kobiowu Compound was directed to the place.”
15- “That when I visited the site last week the number of completed house had increased to six while the uncompleted houses had increased to about twenty.”
The Respondents went further to say in paragraph 9.01 at page 7 of their Brief of argument that the Appellants sell parts of, the land to others who build according to their individual tastes which will not suit the family taste and plan for the village and the family may not be in 3 financial position to pull down houses already built, and then build according to their wishes in the event that they win the case. The Respondents in paragraph 9.02 at page 7 of their Brief of Argument further stated that whatever damages are awardable, the Appellants would not be in a position to pay. These averments have not been controverted by the Appellants. See also SARAKI V. KOYOTE (1990) 4 NWLR (PART 143) 144 at 187; UNION BEVERAGES LTD. V. PEPSI COLA INTERNATIONAL LTD (1994) 3 NWLR (PART 399) 1 at 17. I therefore hold in favour of the Respondents that, damages would not be adequate compensation should the case be in favour of the Respondents at the end of the trial.
On the conduct of the Respondents/Applicants for example as to whether they are guilty of any undue delay in bringing the Application for interlocutory injunction, Appellants have submitted in paragraph 5.13 at page 12 of their Brief of Argument in reliance on paragraph 7, 8, 9, 10, 11, 13 and 15 of their counter affidavit to the Respondents’ Application for interlocutory injunction that the Respondent are not diligent in prosecuting their case in the court below. On that account the conduct of the Respondents is such that the application for interlocutory injunction cannot be considered in their favour. Reliance was placed on the case of AFROTEE TEELER SERVICE (NIG) LTD. V. MIA & SONS LTD (2001) 15 NWLR (PART 592) 730 at 751 ratios 36 where the Supreme Court held as follows –
“The conduct of the plaintiff must also be taken into consideration in determining whether of not to grant an injunction. The plaintiff must come to equity with clean hands and if therefore he is in breach of his own obligations, he will not be granted an injunction. In the same vein he who comes to equity must do equity. Accordingly a plaintiff will not succeed in his claims for injunction if he is unable or; unwilling to carry out his own obligations.”
Respondents for their part attributed part of the delay complained of by the Appellants to the effect that the Appellants could not be served timeously with the writ of summons because they were evading service and that was why a writ of summons issued on the 8th September, 1999 against the Appellants was served on the Appellants on the 26th March, 2000 by substituted service to wit pasting the summons on the Appellants’ houses. Respondents referred to the several lapses of the Appellants as a result of which the long vacation in August and September when time does not run by virtue of Order 48 Rule 6 of the Rules of Court set in.
What is certain is that a writ of summons issued in September 1999, was not served until some six months later on the Appellants and even at that by substituted service. The filing of the action itself was not sufficient to stop the Appellants from dealing with the land the way they chose as paragraphs 5, 6, 7 and 8 of the Respondents’ supporting affidavit shows. It was at this point in time that the Respondents saw the need to file an interlocutory injunction to restrain the Appellants. Paragraphs 12 and 14 of the counter affidavit are as follows –
12 – “… It was after some of our family members noticed that the plaintiffs are not interested in prosecuting their case that they resumed the building of their houses which they had earlier stopped and since this motion was served on us we have been told to stop by our lawyer we have complied.”
14 -“…some of our members are earning their living on the said land and should they be restrained they will be jobless’ and have no means of livelihood.”
This is a tacit admission by the Appellants of the averments of the Respondents in the aforementioned paragraphs of their supporting affidavit. Looking through the totality of the affidavit evidence I do not think that the Respondents are guilty of delay sufficient enough to refuse the application for interlocutory injunction,
As to undertaking in damages, Appellants have referred to the case of KOTOYE V. CBN (supra) page 424 ratio 7 where the Supreme court per Nnemeka Agu held thus –
“Where a court of first instance fails to extract an Undertaking as to damages, an appellate court ought normally to discharge the order of injunction on appeal.”
Appellant went on to say that there is a list of exceptions to this rule which however are not covered by the present situation. The Appellants went further to say that in the present case no undertaking as to damages was filed and none was referred to by the court below.
In paragraph 16 of their, affidavit in support of the motion for interlocutory injunction at page 24 of the Record the Respondent averred as follows –
“That we are ready entering into a recognizance to pay damages to the Respondents if it turns out that the Respondents should not have been restrained.”
The Contention of the Appellants here is that the court below did not make any order as to Undertaking and being the case the order for injunction should be refused. Happily reference has been made to OGAR v. JAMES by the Appellants in paragraph 5.20 at page 14 of the Appellants’ Brief of Argument to the effect that –
‘Justice is a two-way traffic and it must be what is fair, and just to both sides and not only one side in the case.”
The Scenario-here is not that the Respondents did not give an undertaking in damages which in fact they did in paragraph 16 of the supporting affidavit. The situation is that the court failed to make a pronouncement and extract an undertaking from the Respondents. Under the Court of Appeal Act, the Court of Appeal has enormous powers to take over and do what the lower court would have done but failed to do if it would serve the ends of justice. However despite the wide powers of the Court in this regard under the Court of Appeal Act, what kind of order should the Court make with respect to undertaking bearing in mind all the circumstances of the case. By their own admission the Appellants had earlier begun to restrain themselves when their ‘lawyer told them to stop erecting further buildings on the land and only continued doing so when they thought the Respondents were no longer interested in prosecuting the case. The Appellants admit that some portions of the land have already been sold by them. I do not think this is a proper case in which an undertaking should be extracted from the Respondents. It is certainly not the same with the situation that came before the Supreme Court in and to that extent I distinguish it from that case.
The Appeal therefore lacks merit and is dismissed and the ruling of the lower court delivered on the 19th June 2001 in Suit No. I/632/99 are hereby affirmed by me. I make no order as to costs.
SIDI DAUDA BAGE, J.C.A.: I had the privilege of reading in draft the lead judgment of my brother, S.S. Alagoa J.C.A. All the issues canvassed have been adequately dealt with. I do not have anything more useful to add.
I entirely agree with the reasoning and conclusion arrived, at, that the appeal lacks merit and ought to be dismissed. I also dismiss same and I abide with consequential orders made in the lead judgment.
MODUPE FASANMI, J.C.A.: I had the advantage of reading in draft the judgment of my learned brother S. S. Alagoa J.C.A. just delivered.
The issues have been dealt with comprehensively in the judgment and there is a complete want of merit in the appeal. I also dismiss same and affirm the ruling of the lower court delivered on the 19th of June 2001 in Suit no. I/632/99. I make no order as to cost.
Appearances
Musibau Adetunbi Esq. with him K. K. Oyerinde Esq. For Appellant
AND
Chief Abimbola Ajibola For Respondent
