MARDANNI NIGERIA LIMITED v. GABRIEL BAGUDU GALADIMA & ORS
(2019)LCN/12576(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of January, 2019
CA/K/228/2016
RATIO
INTERPRETATION: MEANING OF PRIVY
“The meaning of privy has been defined. A privy is defined as that person whose title is derived from and who claims through a party. It may also imply identity of successive interest or persons having interest in property. See Agbogunleri V Depo & Ors (2008) LPELR-243 (SC). The Plaintiff/Respondent having stated that Sani Abbas Abubakar is a shareholder in the Plaintiff/Respondent can properly be said to be a privy of the Plaintiff/Respondent. Facts admitted need no proof . See Offor & Anor V State (2012) LPELR-19658 (SC).” PER JAMES GAMBO ABUNDAGA, J.C.A.
LAND LAW: PROOF OF OWNERSHIP/POSSESSION
“As settled by law, proof of ownership is prima facie proof of possession (see Apata V Olanlokun & Anor (2013) LPELR-20938 (SC); Bassil & Anor V Fajebe & Anor (2001) LPELR- 757 (SC). But the same cannot be said of claim of possession. Being in possession is not prima facie proof of ownership. If otherwise was their contention they should have counter-claimed for title based on possession. A person in possession may very well be a trespasser. Therefore on the clear admission by the defendants/respondents that they have no counter claim to the plaintiff’s action, the statement of the defence filed by them would have been of immense assistance to this Court in its enquiry as to whether they have shown that there is a serious question or substantial issue to be tried, or that they have a legal right in the action which they sought to protect under the motion for interlocutory injunction.” PER JAMES GAMBO ABUNDAGA, J.C.A.
JUSTICES
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
MARDANNI NIG. LTD Appellant(s)
AND
1. GABRIEL BAGUDU GALADIMA
(Sarki or Mai Unguwan Kudenda)
2. AUDU MADAMI
3. BITRUS BUSA
4. CHIDO AGANISI
5. ADO ZOKORUKO Respondent(s)
JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Ruling of Hon. Justice D.H. Kbobo of Kaduna State High Court delivered on 22nd February 2016.
The Ruling was predicated on a motion on notice filed before the Court on 11th August, 2015 wherein the defendants in the substantive suit (now Respondents in this appeal) moved the Court for an order of interlocutory injunction restraining the parties in this suit, their privies, particularly Abdullahi Abbas Abubakar and Sani Abbas Abubakar and or any other person claiming through, under or on behalf of all or any of them from entering into, excavating and removing laterite there from or doing any act that affects the physical structure or value of the land in dispute pending the hearing of the motion on notice.
The motion was opposed by the plaintiff (now Appellant) who filed a counter affidavit to challenge the application. In the ruling delivered on the motion, the lower Court granted the prayer as sought, and this precipitated the filing of the instant appeal by the Appellant who was aggrieved thereby. The notice of appeal was filed on 1st March 2016. The notice of appeal contains three grounds of appeal. The Grounds with their Particulars are reproduced hereunder:-
GROUND ONE:
The learned trial Judge erred in law when he granted the motion dated 10th August, 2015 whereas the Respondents herein did not satisfy the requirements guiding the grant of injunction. The Court held thus:
thus, subsisting action pending before this Court has serious question of substantial issues to be tried necessitating that the status quo should be maintained pending the determination of the substantive action. No doubt in my mind that there is need for both parties to be restrained to stay off the disputed land pending the determination of the substantive suit before the Court as rightly applied for by the counsel for the Defendant/ Applicant.
PARTICULARS:
(a) The motion dated 10th August, 2015 did not pray for injunction pending the determination of the substantive suit.
(b) The status quo is that the Appellant was in possession of the disputed land before the suit was filed and the Respondents did not satisfy the requirements of the law guiding injunction.
(c) The Appellant has economic trees which it tenders and order restraining it from entering is injurious. Monetary compensation is adequate as contemplated by NBM Bank Ltd V Oasis Group Ltd (2004) (Pt.239) 915 at 921.
GROUND TWO:
The learned trial Judge erred in law when he held that:
That the Plaintiff is using the filing of this case to have access to the land, which in my view must be discouraged.
thereby prematurely resolving an issue which ought to be resolved after taking oral evidence at the end of the matter and thereby causing mis-carriage of justice.
PARTICULARS:
(a) Both parties claimed to be in possession by their pleadings and affidavit.
(b) The learned trial Judge unfortunately has taken side by accepting one version at interlocutory stage and before taking oral evidence.
GROUND THREE – ERROR IN LAW:
The learned trial Judge erred in law when he restrained Abdullahi Abbas Abubakar and Sani Abbas Abubakar who are not parties to the suit in the name of being privies whereas the Respondents did not show how they qualify to be privies.
Following the compilation and transmission of the record of appeal to this Court, the parties filed their briefs of argument. The Appellant’s brief of argument settled by M.T. Mohammed, Esq was filed on 18th May, 2018, vide an order of this Court. The said brief was deemed properly filed and served on 23rd May, 2018.
The Respondents’ brief of argument settled by Emmanuel B. Kantiok, Esq was filed on 22nd November 2016 and deemed filed on 5th October, 2017 and further deemed filed on 22nd November 2018. The appeal came up for hearing on 22nd November 2018 whereat both briefs of argument were adopted.
In the Appellant’s brief of argument, one issue was formulated from the three grounds of appeal. The issue was thus framed:
Whether the trial Judge was right in law in granting the Respondent?s motion for injunction in view of the materials placed before the Court.
Learned counsel submitted on the lone issue that the Applicants/Respondents did not satisfy all the requirements laid down by law for the grant of an interlocutory injunction, and therefore contrary to the duty on the Court to exercise its discretion not only judicially but judiciously, the Court did not and consequently fell into error to grant the injunction. Many cases were cited and relied on by learned counsel. They include but not limited to Adeleke V Lawal (2014) ALL FWLR (Pt.710) 1226 at 1237, Paras B-7, P.1249, Para E, P.1238 Paras A-H; Uket V Okpa (2006) ALL FWLR (Pt.311) P.189 at 1906; Odulana V Oladejo (2013) ALL FWLR (Pt.707) 746 at 760-761; Uma V Effiom (2014) ALL FWLR (Pt.731) P.1647, Paras F-G 1648, Paras A-C. Counsel concluded the Appellant’s brief of argument by calling on this Court to resolve the lone issue formulated in favour of the Appellant and to set aside the order of the lower Court.
Counsel to the respondents formulated two issues, the first, he adopted the Appellant’s sole issue, and added another issue, which he thus framed:
Whether the Appellant can challenge the decision of the trial Court made against Abdullahi Abbas Abubakar and Sani Abbas Abubakar who failed to appeal against the judgment of the Court.
On the Appellant’s issue which he adopted, Respondents’ counsel submitted that the trial Court rightly granted the order of interlocutory injunction as prayed for in their application. He submitted that it is settled law that the grant or refusal of an application for injunction involves the exercise of discretion, which exercise must be exercised both judicially and judiciously. That the Court must look at the whole case ‘that is both plaintiff’s and defendant’s case. On the principles applicable he cited Adeyemi Works Construction (Nig) Ltd V Omolehin (2004) ALL FWLR (Pt.232) P.1564 at 1577, Para A-B; Udo V I.T.C.M.E.C (2010) ALL FWLR (Pt.507) P.88 at 103-104; Orji V Zaria Ind. Ltd (1992) NWLR (Pt.216) 124 at 138, Para G-H.
He submitted that the Respondents made out and satisfied the legal requirement for the grant of an order of interlocutory injunction and that the filing of a counter claim is not sine qua non for the application for interlocutory injunction by a defendant. Counsel urged us to resolve this issue in favour of the Respondents.
On issue two, counsel submitted that the Appellant has no locus standi to complain against the order of the trial Court against Abdullahi Abbas Abubakar, who though affected by the order, have not appealed it. Counsel referred to S.243 of the 1999 Constitution of the Federal Republic of Nigeria, (as amended) which gives right to a person who though not a party in a case who has interest in the matter, to seek leave to appeal. Counsel urged us to resolve this issue in favour of the Respondent. He concluded by urging us to dismiss the appeal.
The totality of the submissions of counsel on the whole issues can be subsumed into the sole issue formulated by Appellant’s counsel which Respondents’ counsel also adopted. For ease of reference, the issue is:
Whether the learned trial Judge was right in law in granting the Respondents’ motion for injunction in view of the materials placed before the Court.
In dealing with this issue, I intend to first tackle the issue of propriety or otherwise of the grant of the order of interlocutory injunction against Abdullahi Abbas Abubakar and Sani Abbas Abubakar. Learned counsel for the Appellant in his submission contended that the Court restrained Abdullahi Abbas Abubakar and Sani Abbas Abubakar who are not parties to the suit in the name of being privies, whereas the respondents did not show how they qualify to be privies. He viewed this as inappropriate. There is no response from Appellant’s counsel on this submission. In law he must be deemed to have conceded to that argument.
Be that as it may, be it noted that the reliefs in the motion were directed at the parties, and the privies particularly Abdullahi Abbas Abubakar and Sani Abbas Abubakar.
In paragraph 8 of the affidavit in support of the motion, Bitrus Busa (the 3rd defendant) deposed to the fact that while the suit was pending Abdullahi Abbas Abubakar and Sani Abbas Abubakar on 25th July 2015 took a grader and tipper into the land in dispute and started excavation of the laterite therefrom and were selling it to their detriment. He further averred in paragraph 10 of the affidavit that before they were sued by the plaintiffs, they had been in possession of the land in dispute and that Abdullahi Abbas Abubakar and Sani Abbas Abubakar who claimed to be connected with the plaintiff were using the case to have access to the land. One Rabiu Haruna, swore to the counter affidavit in opposition to the motion on 23/11/15.
She averred that she had the consent of the Plaintiff/Respondent to depose to the counter affidavit. Her depositions in paragraphs 3 and 8 deserve attention in respect of the issue under consideration. I hereby reproduce the said paragraphs for ease of reference:
3. That I am particularly informed by Sani Abbas Abubakar in our chambers on the 20th November 2015 around 2.30pm of the following facts which I verily believe to be true:
8. Defendants have been advertising the land for sale through one Haruna Musa and threatening to unleash violence on the plaintiff or its share holders (like Sani Abbas Abubakar) or any of its workers that goes close to the land. They have have them arrested and detained several times.
The Respondents alleged that one of those affected by the order complained of in this appeal (Sani Abbas Abubakar) put himself out as the alter ego of the Plaintiff/Appellant. The Plaintiff/Appellant confirmed that assertion in their counter affidavit (paragraphs 3 and 8 read together). And yet, counsel for the Appellant submitted that the Respondents did not show how they qualify to be privies.
This submission necessitates that we understand who in law is a privy. The meaning of privy has been defined. A privy is defined as that person whose title is derived from and who claims through a party. It may also imply identity of successive interest or persons having interest in property. See Agbogunleri V Depo & Ors (2008) LPELR-243 (SC). The Plaintiff/Respondent having stated that Sani Abbas Abubakar is a shareholder in the Plaintiff/Respondent can properly be said to be a privy of the Plaintiff/Respondent. Facts admitted need no proof . See Offor & Anor V State (2012) LPELR-19658 (SC).
There is another vital issue raised by the Appellant which this Court must address. It was thus raised by counsel on page 6 of the record of appeal thus – ‘ if at all there is need to restrain parties in an action for alleged trespass, it is only proper, fair and with best interest of justice, at interlocutory stage of the proceedings to restrain the defendants, as opposed to the plaintiff who has been sued for trespass. But the vice-versa is the case here. It is simply inconceivable and unheard of for a defendant (the Respondents in this case) who had been sued for trespass and who has not counterclaimed in an effort to show that he has a title and therefore, right of possession to apply for and be granted an injunctive relief, even as against both parties.’
By this submission, it is the contention of the Appellant that for a defendant in an action for declaration of title to land to apply for an interlocutory injunction, he must counter claim. That it is unheard of for a defendant to apply for an interlocutory injunction in an action for declaration of title to land especially when he files no counter claim as in the instant case.
This issue invariably leads me to the inquiry as to whether the conditions which an applicant for interlocutory injunction must fulfill before it can be granted were indeed fulfilled. Generally the purpose of an application for interlocutory injunction is to keep the parties in the action in status quo in which they were before the judgment or the act complained of. See Adeleke V Lawal (2014) ALL FWLR (Pt.710) p.1226. But before it can be granted several factors must be satisfied or be seen to have been established on the materials placed before the Court by the applicant.
Learned counsel for the Applicant enumerated the factors as enunciated in several cases including Adeleke V Lawal (2014) ALL FWLR (Pt.710) p.1226 at 1237 paras B-F, p. 12..9, para E, p. 1238, paras A-H wherein the conditions were stated as follows:
(1) There must be a subsisting action;
(2) The subsisting action must clearly denote a legal right which the applicant must protect;
(3) The applicant must show that there is a serious or substantial issue to be tried.
(4) Because of the above requirement, the status quo should be maintained pending determination of the substantive action.
(5) The applicant must show that the balance of convenience is in favour of granting the application.
(6) The applicant must show that there no delay on his part in bringing the application.
(7) The applicant must show that damages cannot be adequate compensation for the injury he wants the Court to protect.
(8) The applicant must make an undertaking to pay damages in the event of a wrongful exercise of Court?s discretion in granting the application.
Broadly, the aforestated are the factors or conditions. However not every single of them are considered in every given application. The application of the conditions differs from one case to another. However, the following are basic and must be found to be established in every application for interlocutory injunction.
(i) That there must be a subsisting action which must clearly denote a legal right which the applicant seeks to protect.
(ii) the applicant must show that there is a serious question or substantial issue to be tried.
(iii) the applicant must show that the balance of convenience is in favour of granting the Application.
(iv) that the applicant must show that damages cannot be adequate compensation for the injury he wants the Court to protect.
To be on sure footing in dealing with an application for interlocutory injunction, the Court must, and not merely should, first enquire into the first two condition. The necessity for this was further elucidated in the case of Union Beverages Ltd V Pepsi Cola Int.l Ltd & Ors (1994) LPELR-3397 (SC) where the Court held:
“what was required in this case before the application for the interlocutory injunction could be granted was not only affidavit evidence that the alleged activities of the 1st, 2nd and 3rd respondents were damaging the appellant and would prove fatal if not restrained. This is because the fact that the act of a defendant is causing injury to the plaintiff is not sufficient for the purpose of determining whether an application for an interlocutory injunction should be granted. The application will not be granted if it is not shown that the alleged act of the defendant constitutes an infringement of a legally enforceable right of the plaintiff. See Day V Brownrigg (1878)10 Ch. D.2 and Akapo V Hakeem Habeeb (1992) 6 NWLR (pt.247) 266. It is a fundamental rule of law that the Court will grant an injunction only to support or protect a legal right. If the applicant has no legal right recognised by law, there is no power to grant an injunction. See Braide V Adoki (1931) 10 NLR 15 and Morohunfola V Kwara College of Technology (1990) 4 NWLR (Pt.145) 506. Another fundamental rule of law is that it is for an applicant for an interlocutory injunction to satisfy the Court that there is a serious question to be tried as between him (applicant) and the defendant (respondent). An applicant for an interlocutory injunction must satisfy the Court, if he is to succeed, that there is a serious question to be tried in addition to his satisfying the Court that he has a right which ought to be protected. See Obeya Memorial Hospital. Per Adio JSC (Pp.10-11, para C).”
The questions I now put to myself is whether from the affidavit evidence before me, the defendants/respondents have established the following:
(i) There is a subsisting action which clearly denotes a legal right to protect between them and the plaintiff/appellant;
(ii) Whether they have shown that there is a serious question or substantial issue to be tried between them.
I must therefore go to the record of the lower Court, particularly the Ruling of the Court to know what its findings were on the aforestated issues.
The finding of the Court on this issue can be found at page 48 of the record of the lower Court. see lines 7-18 where the Court stated as follows:
“In the instant case, there is no doubt that there is a subsisting action duly filed by the plaintiff/Respondent and against the defendants/Applicants in this application wherein the plaintiff/Respondent is claiming declaration of title, injunction and damages for trespass to the land in dispute against the defendants/applicants and issues have since been joined by the parties before the Court from the pleadings of the parties filed and exchanged. While the plaintiff is claiming the land in dispute through purchase, the defendants have denied that the land in dispute have not been sold and was never purchased by late Abbas Abubakar and late Paul Mshelia in 1977. Thus the subsisting action pending before this Court has serious questions of substantial issues to be tried necessitating that the status quo should be maintained pending the determination of the substantive action.”
Merely denying the plaintiff’s claim as done in this case is not sufficient traverse of the plaintiff?s claims. If as stated by the lower Court before which was both the plaintiff’s statement of claim and the statement of the defence of the defendants, the defendants denied the claim by the plaintiff that they bought the land in 1977, what is the basis of their own claim to the land? They are the applicants in the application, and the law mandates them to show prima facie on the pleadings that they have a legal right to protect, and that there is a serious issue to be tried between them and the plaintiff. A mere denial of plaintiff’s claim cannot be the basis of the defendants’ claims.
The defendants/respondents have admitted in their brief of argument that they do not have a counter claim. They submitted that they do not require a counter-claim to be entitled to apply for an order to preserve the res because of their claim of being in possession which was the basis of their being sued to Court by the plaintiff/appellant. As settled by law, proof of ownership is prima facie proof of possession (see Apata V Olanlokun & Anor (2013) LPELR-20938 (SC); Bassil & Anor V Fajebe & Anor (2001) LPELR- 757 (SC). But the same cannot be said of claim of possession.
Being in possession is not prima facie proof of ownership. If otherwise was their contention they should have counter-claimed for title based on possession. A person in possession may very well be a trespasser. Therefore on the clear admission by the defendants/respondents that they have no counter claim to the plaintiff’s action, the statement of the defence filed by them would have been of immense assistance to this Court in its enquiry as to whether they have shown that there is a serious question or substantial issue to be tried, or that they have a legal right in the action which they sought to protect under the motion for interlocutory injunction.
Unfortunately, the statement of defence did not form part of the record of the lower Court transmitted to this Court.
In the absence of the statement of defence, I will only be blindly endorsing the finding of the lower Court if I come to the decision as the lower Court did, that there is a serious and substantial issue to be tried necessitating that the status quo be maintained. Moreover, the defendants/respondents did not at all disclose the basis of their being in possession. They were just concerned with stating the acts of the plaintiff/appellant that precipitated the motion for injunction they filed.
This can be seen in paragraphs 8, 9, 10 and 11 of the affidavit in support of their motion which the lower court referred to in its ruling.
Lest I am misunderstood on this point, I need to state this. The defendants/respondents are not at this stage required to prove that they have a legal right. Not at all. What the law requires at the interlocutory stage is that there are averments in either their statement of defence or affidavit in support of the motion showing their entitlement to a legal right or prima facie showing that they have a substantial issue relating to ownership or title to the land to canvass at the trial. That is what I am saying. I find it difficult to resolve in the absence of a counter claim and the statement of defence that the Respondents have established prima facie, their legal right to the land.
And as stated in the case of Union Beverages Ltd V Pepsi Cola Int.l Ltd & Ors (supra), an application for interlocutory injunction will not be granted if it is not shown that the alleged act of the defendant constitutes an infringement of a legally enforceable right of the plaintiff. I therefore resolve the lone issue in favour of the Respondent.
I have considered balance of convenience being one of prerequisites which an applicant for interlocutory injunction is required to prove to be entitled to the grant of the order of interlocutory injunction. Indeed the acts of excavation which I find not controverted by the plaintiff/appellant are acts capable of serious devaluation of the land in dispute. But for what I have said in respect of the first hurdle which an applicant for interlocutory injunction must cross, that is, the Respondents’ failure to show that they have a legal right to protect or that there is a serious issue to be tried between them and the plaintiff/appellant; my finding would have been that the balance of convenience is in the Respondents’ favour.
The lone issue in this appeal having been resolved in favour of the Appellant, I hereby find merit in this appeal. It is therefore allowed. The ruling of the lower Court is hereby set aside.
Parties are to bear their respective costs.
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the draft judgment of my learned brother JAMES GAMBO ABUNDAGA JCA and I agree that the appeal should be allowed. I accordingly allow it and set aside the Ruling of the lower Court.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the Judgment of my learned brother, James Gambo Abundaga JCA. I also resolve the lone issue for determination in favour of the Appellant.
This appeal accordingly succeeds. The ruling of the lower Court is accordingly set aside. I make no order as to costs.
Appearances:
M.T. Mohammed, Esq. with him, A.B. Usman, T.A. Bello Esq. and Kabir Lukman, Esq.For Appellant(s)
B. Kantiok, Esq.For Respondent(s)
