NAVY CAPTAIN ABIMBOLA ADESINA (RTD.) V. KAFARU AROWOLO & ORS
In The Court of Appeal of Nigeria
On Wednesday, the 17th day of December, 2003
JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria
CHRISTOPHER MITCHELL CHUKWUMA-ENEH Justice of The Court of Appeal of Nigeria
ABUBAKAR ABDUL-KADIR JEGA Justice of The Court of Appeal of Nigeria
NAVY CAPTAIN ABIMBOLA ADESINA (RTD.) – Appellant(s)
- KAFARU AROWOLO
2. MUMUNI IBIKUNLE
3. LT. COL. T. A. OGUNNIYI – Respondent(s)
CHRISTOPHER MITCHELL CHUKWUMA-ENEH, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Ikeja High Court (Coram A.J, Coker, J.) contained in the ruling delivered on 608 the 11th day of January, 2002 dismissing the plaintiff’s (appellant) application for an order of interlocutory injunction.
In both the writ of summons and statement of claim, the plaintiff claimed against the defendants (respondents) jointly and severally a declaration of entitlement to the statutory right of occupancy of plot of land situate and otherwise known as No.2 Dele Ojo Street, New Oko-Oba, Agege, Lagos State; possession of (he land in dispute and an order of perpetual injunction restraining the defendants and their agents, privies and assigns from further trespass upon the said plot of land and the sum of N2,660,00 being both special and general damages for the acts of trespass.
On the 29/11/01 the plaintiff (appellant) by way of motion applied for an interlocutory injunction to restrain the defendants and their agents from further trespassing upon or erecting any structures on the disputed land pending the determination of the suit and supported it by an affidavit of twenty eight paragraphs with one exhibit marked exhibit A and sworn to by the plaintiff. He also filed a reply to the counter-affidavit with four documents attached to it marked exhibits A1, B, B1 and B3. The defendants (respondents) filed a counter affidavit sworn to by the 3rd defendant (respondent). After hearing the submissions of the learned counsel on both sides of the matter the court below in a considered ruling dismissed the application with costs.
Aggrieved by the said decision the plaintiff (appellant) appealed to this court upon 9 (nine) grounds of appeal by a notice of appeal filed 21/1/02. The parties have in accordance with the rules of this court filed and exchanged their briefs of argument. The appellant in his brief of argument identified 4 (four) issues and they read as follows:
“1. Whether or not the trial court touched on the issues for the substantive stage or whether or not he demanded a prima facie case from the appellant when it held that there is no enough prima facie evidence that there was anything on the land which was destroyed before the defendants commenced construction works on the land, and also by holding that the appellants ought to have shown such by way of photographs and having not done so, the court was unsatisfied as to his affidavit evidence despite the evidence that the respondents with the help of armed thugs have kept the appellant away from the land.
2. Which of the 2 parties i.e. appellant or respondents stand to loose more if the order of injunction is refused and it is later discovered that it ought to have been granted or whose loss can be better compensated in damages.
3. Whether or not the court’s discretion was judicially and judiciously exercised by refusing to stop the respondents from building on the land when it is so obvious that if the respondents are not restrained they will complete their building on the land and permanently render the land totally unfit for piggery breeding and agricultural purpose in the event that the appellant succeeds at trial.
4. Whether the claims for special damages for the destruction of the properties on the land and general damages for trespass can compensate for losing the agricultural purposes for which the land was brought on one hand, and whether because the appellant has claimed special and general damages, the loss of the agricultural purpose of the land is also quantifiable in damages.”
The respondents in their brief of argument distilled as the sole issue for determination thus:
“Whether the learned trial Judge was right in the way and manner she exercised her discretion in refusing the appellant’s application for an order of interlocutory injunction.”
The respondents on 4/10/02 filed a notice of preliminary objection under Order 3 rule 2(2) and (4) of the Court of Appeal Rules challenging the competence of grounds 2,4,5,6,7, 8 and 9 of the notice of appeal and more specifically,
(i) that the grounds alleged misdirection or errors in law without setting out particulars and nature of the misdirection or errors; and
(ii) that the grounds disclosed no reasonable ground of appeal, being vague.
The respondents argued the preliminary objection in their brief of argument. I go on to set out their case in this regard which in the main was that the grounds fell short of the mandatory requirement of Order 3 rule 2(2); and based that conclusion as have been established in several dicta of the Supreme Court, for example, in the case Adeleke v. Asani (2002) 8 NWLR (Pt.768) 26 at pp.42-43 per Ejiwunmi, JSC and per Ogwuegbu, JSC at p.45. On the incurable vagueness of these grounds the respondents had charged that there was no standard means for their being understood and for failing to disclose any reasonable ground of appeal. They also in this respect relied on the dictum of Uwaifo, JSC in Central Bank of Nigeria v. Okojie (2002) 8 NWLR (Pt.768) 48 at 61. Order 3 rule 2(7) was invoked to ask the court to strike out the notice of appeal on grounds of incompetence. See Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) 285.
The appellant has not so far filed a reply brief in answer to the aforesaid grounds taken in the preliminary objection. Before dealing with preliminary, I think I should set a resume to the background of the matter.
The facts of this matter are fairly straight forward. The appellant contended he bought the disputed land from one Fred Williams in 1977 and immediately thereafter entered into possession and surveyed the same. He later renegotiated with the true owners of the land i.e. Olarokun family and paid them for a 99 year lease. He built a wall fence and installed a gate, constructed a piggery house and farmed the rest of the land. He was in a peaceable occupation until about 19/11/01 when the respondents ruthlessly invaded the land destroying all he had on the land and started construction works.
Even though he reported the matter to the police, the respondents had persisted in their acts of trespass hence the instant application.
It is on these facts that the parties joined issues as per their respective affidavits in this application.
The appellant in his brief of argument relied on the case of Abbas v. Ajoge (1996) 4 NWLR (Pt.444) 596 at 605 D-F to contend that to require him to show further evidence in proof of for example photographs of his damaged structures on the disputed land was a misconception of the present position of the law requiring him at that stage to show only that there was a serious issue to be tried and no longer that there was a strong prima facie case. Also see Ayorinde v. Attorney-General of Oyo State (1996) 3 NWLR (Pt.434) 20 at 32 paragraphs A-C and Amira v. Alo (1995) 7 NWLR (Pt.409) 623 at 630 paragraphs G-H. And also that whether the appellant had structures on the disputed land, he argued, should form part of the facts on which the appellant’s claim. ultimately would be decided and could only be tested at the trial stage.
On issue 2, the appellant contrasted as against the respondents’ position how he would otherwise be disadvantaged and irreparable injury caused to him, even though quantifiable in damages if the application was refused. As for the agricultural purpose, with regard to his piggery business in particular would have been defeated and he was saddled with structures not really ideal for piggery nor for farming purposes. In other words, as for the respondents’ inconvenience it was put as capable of being quantifiable in damages which could be covered by his (applicant) undertaking as to damages where it turned out that the injunction ought not to have been granted in the first place. See Ayorinde v. Attorney-General of Oyo State (supra) page 32 paragraphs F-H on balance of convenience.
On issue 3, the appellant submitted that the court below under a misapprehension of facts acted in total disregard of the principle to act judicially and judiciously in the circumstances and that this court should, therefore, interfere with the exercise of the trial court’s exercise of its discretion as it was founded on wrong principles of law. See Ikeni v. Efamo (1996) 5 NWLR (Pt.446) 64 at 94. For the principles to guide the court in that event he referred to Adegoroye v. Adegoroye (1996) 2 NWLR (Pt.433) 712 paragraphs G-H page 720 paragraphs B-C. Particularly, he observed that the court below did not give due consideration to whether the land could be useful for agriculture or piggery purpose after the respondents were allowed to complete their buildings before the trial and the appellant eventually was declared the winner.
The respondents’ position in this matter can be summed up thus that apart from noting that the appellant’s aim was not to destroy the existing structures but to prevent further construction on the disputed land they observed that since there appeared to be a triable issue between the parties that an order of interlocutory injunction in this matter had to rest on the balance of convenience between the parties as enunciated in Obeya Specialist Memorial Hospital v. Attorney General of Oyo State (1987) 3 NWLR (Pt.60) 325; Oyeyemi v. Irewole Local Government (1993) 1 NWLR (Pt.270) 462 at 477; Hart v. T.S.K.J. (Nig.) Ltd. (1998) 12 NWLR (Pt.578) 372 at 440; U.B.A. v. GMBH (1989) 3 NWLR (Pt.110) 374 at 409; Sotuminu v. Ocean Steamship (1992) 5 NWLR (Pt.239) 1. They claimed that the balance of convenience was in their favour and relied on their affidavit evidence for so contending.
And that the fresh case now put up by the appellant to the effect that he could not take photographs because of lack access to the disputed land should be discarded as baseless as it was not an issue taken in the court below. They remarked that he was however, able to produce one photograph i.e. exhibit B1. See Adesola v. Abidoye (1999) 14 NWLR (Pt.637) 28 at 68 per Ayoola, JSC. Want of adequate materials to help the court arrive at fair decision in the matter was highlighted.
The question whether the court below exercised its discretion judicially and judiciously was said to be misplaced and the court was urged not to interfere. See Saraki v. Kotoye (1990) 4 NWLR (Pt.143) 144 at 171 per Obaseki, JSC. Echaka Cattle Ranch Ltd. v. N.A.C.B. Ltd. (1998) 4 NWLR (Pt.547) 526 at 544 per Iguh, JSC.
The court was urged to dismiss the appeal.
Coming to the preliminary objection, even though the appellant has not by way of a reply adverted to the objection taken by the respondents as set out above in this judgment, that is to say, with regard to the competence of grounds 2, 4,5,6, 7,8 and 9 the court still has to scrutinise them, all the same, in the context of their competency. The objection cannot however be, sustained in that respect as a matter of course. That an appellant is bound to frame his grounds of appeal with such clarity as would enable the other party and the court to grasp his complaint cannot be over-emphasised.
So also is the question that a ground of appeal is a statement setting out the nature of the error or mistake made by a court. The particulars of the ground seek to expatiate on the reasons why what is alleged as an error or misdirection, as the case may be, is in fact so. It is also a point well taken by the respondents that vagueness of grounds of appeal as charged here against the aforesaid grounds may arise where the complaint is not clearly defined in relation to the subject or it is not particularised or the particulars are clearly irrelevant. See C.B.N. v. Okojie (supra). I think it is only proper to set out the said grounds as per pages 33 and 34 of the record as follows:
“1. The learned trial Judge erred in law in holding that since the plaintiff has claimed damages in the substantive suit, balance of convenience cannot be resolved in his favour when there is evidence that the agricultural purpose for which the plaintiff bought the land would be defeated if the defendants are allowed to continue building on the land.
2. The learned trial Judge wrongly exercised her discretion by construing balance of convenience in favour of the defendants/respondents and by refusing to restore the status quo that existed peaceably before the action that caused the controversy amongst the parties arose, a decision which permits the defendants to continue building on the land and thereby render the outcome of the substantive case futile and unrewarding.
3. The learned trial Judge erred in law in overruling the application for an order of interlocutory injunction, a decision which is absolutely against the weight of the plaintiff/applicant’s affidavit evidence.
4. The learned trial Judge erred in fact in holding that balance of convenience is in favour of the defendants who can be adequately compensated in damages by the plaintiff.
5. The learned trial Judge erred in law when she held that because the plaintiff had claimed damages in his substantive suit he is not entitled to an order of interlocutory injunction.
6. The learned trial Judge erred in law when she held that on the basis of the latin maxim Quid Quid, plantato solo solo cedit an order of interlocutory injunction is unnecessary in this suit, because if the plaintiff succeeds he will own whatever is found on the land when in actual fact the agricultural purpose for which the land was bought will have been defeated by the continuation of the building on the land by the defendants will have prejudiced the plaintiff’s evidence and the outcome of the substantive suit by foisting upon him a situation of fait accompli.
7. The learned trial Judge erred in law in restoring the defendants to their forcefully and illegally gained status quo on the land.
8. The learned trial Judge erred in law by touching on the issue for the substantive stage by holding that the plaintiff/applicant did not lead enough evidence to show that there was a piggery house on the land before the defendants trespassed on and destroyed same and commenced their structures on the land.
9. The learned trial Judge erred in fact and misdirected herself when she held that this is not a case where balance of convenience should be resolved in favour of the plaintiff/applicant but a case where balance of convenience should be resolved in favour of the defendants to continue to build on the land just because of inflation in the prices of building materials when title of the land is yet to be determined.
I must also add here that in George Osahon & Ors. v. Federal Republic of Nigeria & Anor. (2003) 16 NWLR (Pt.845) 89 (at pp.115-116, paras. EA., E-H), I held the view on a similar question, that is, what constitutes question of law from which I have no reason to depart to the effect that:
An error in law is where the appellant is complaining of the failure of the court to apply the correct principles of law to established and undisputed facts, or that the court has come to a conclusion on admitted or proved facts which no reasonable tribunal would come to. It could also mean a question, which the court is bound to answer in accordance with a rule of law. Thus, a question of law is one predetermined and authoritatively answered by the law …
Relating these principles of law to the aforesaid grounds of appeal there can be no doubt that the way they are framed, to say the least, has represented them as wholly unwieldy, verbose and overlapping with one another in setting out whatever errors or misdirection was contemplated. It is a most novel manner of raising grounds of appeal. For example, grounds 1, 5 and 6 complain of damages being an adequate remedy in the matter as found by the court below as against granting him an injunction; while grounds 2, 4, 6 and 9 have raised question as to where lies the balance of convenience between the parties. It is difficult in perusing the grounds to ascertain from the said grounds the principle of law the court below has failed to apply or how the court has defaulted in its conclusions on the proved or admitted facts as found on the affidavit evidence placed before it. It cannot be the function of the courts to supply these missing links in the appellant’s case. Having examined these grounds again, against the backdrop of the foregoing reasoning 1 uphold the respondent’s objection and strike down grounds 2, 4, 5, 6 and 9 as being unwieldy and as suffering from serious overlapping and vagueness in the sense that they are not particularized as required by law. I must also add that the court is not supposed to rummage through such jumbled grounds 2, 4, 5, 6 and 9 to speculate on the true nature of their complaints. The courts have consistently cautioned times without number on the need for counsel to be mindful in raising grounds of appeal and issues for determination. They are indeed vague by all standards. See C.B.N. v. Okojie (supra). Finally, I therefore, strike out grounds 2, 4, 5, 6 and 9 leaving grounds 1 and 3 which were not challenged and 7 and 8.
The issues identified for determination by the appellant in his brief, with respect, show a total lack of compliance with the rudimentary rules of how issues for determination in matters as the instant one are couched; besides, they are afflicted by the same type of virus as have afflicted the framing of the grounds of appeal. In this instance, it is more debilitating because appeals are allowed on the issues identified and successfully canvassed as they must be formulated as arising from grounds of appeal in the instant case, the appellant ought to have set boundaries around the thought informing each of the four issues so that one can perceive its shape and extent and thereby avoid confusing it for something else. The four issues raised for determination have been reproduced herein. With respect, in the four issues raised by the appellant, there- is evident aimless wandering from one point to another within the context of each and everyone of the four issues raised, with the result, that there is the tendency to confuse the issues ,being discussed. Indeed, there is an obvious want of precision in couching the four issues identified by the appellant in his brief. On the other hand, the respondents’ sole issue for determination not only encompasses the four issues raised by the appellant, it is capable of resolving the controversy in this appeal hence I have adopted to be guided by it in dealing with the matter.
I have gone through the compendium of materials placed before the court in this matter, most crucial being the affidavits of the parties and the submission of their counsel as encompassed in the briefs.
The whole essence of asking for an order of interlocutory injunction which is a provisional remedy, in the sense that it is a pre-trial remedy, is to remedy an injury which a person has already suffered or to prevent it from occurring.
From the decisions of such cases as American Cyanami v. Ethicon (1975) A.C. 396 as approved in Obeya’s case in particular and other leading authorities as the cases cited above on the subject, are deducible, the factors which an applicant has to satisfy to be entitled to the remedy and they include most importantly in a synopsis as follows:
The existence of a legal right in the applicant; presence of a triable issue in the matter; the question of balance of convenience between the parties i.e. to determine where the balance of convenience lies, courts have to consider whether damages will not serve as adequate remedy as well as other consideration as regards social or economic factors.
I see the need to highlight some crucial findings of the court below. showing its attitude in relation to the crux of this matter i.e. as regards the foregoing factors. At page 30 of the record the court below found that there existed competing legal rights of the parties and the existence of a triable issue in the matter and I entirely agree with the findings. It cannot be faulted.
Having made this preliminary findings it proceeded to consider the question of where lay the balance of convenience as between the parties and at page 31 of the record last paragraph stated thus:
From the foregoing, the balance of convenience must necessarily tilt and the court’s discretion exercised in favour of the party who stands to loss more if construction work on the building is stopped at the stage shown and agreed to by both counsel is the current stage as depicted in the plaintiff’s photo – exhibits C, D and E. It is definitely the defendants/respondents who had up till now not been able to commence construction due to lack of funds (see paragraphs 13 and 14.of their counter-affidavit) who would stand to lose more. It is not in the interest of justice and does not make economic sense for the court to order that the construction be stopped at the stage in view of (and the court must take judicial notice as urged by defendants/respondents’ counsel) the rising costs of materials and the general inflationary trend in the economy.
Before the forgoing abstract, the court below also found at page 31, 1st para. et seq ….. that they (the appellant) do not necessarily want the building presently on the land destroyed or pulled down, all they require is for the court to stop further construction. (words in brackets supplied by me).
It has not been shown that the respondents even now are not in position to pay damages; an onus in my view on the applicant/appellant. I must reach that to determine the balance of convenience firstly, it is settled that where damages are an adequate remedy and the defendant is able to pay them, that injunction will be refused; and secondly, again, in deciding question of balance of convenience the courts can take into account of such factors as pervading social and other economic factors appurtenant to the situation. In this regard, I refer to the court’s reference to economic factors that came into play in the matter, for example, the rising costs of building materials and the general inflationary trend in the economy rightly taken into account in determining the balance of convenience here. The finding cannot be faulted.
I think that the findings of the court below that the appellant having clearly quantified in his claim the damages both special and general to be N2,660,000,00 has shown that damages will adequately compensate him should he succeed at the trial. This proposition is well grounded on the authorities. There is no other cogent reason to be inferred from the appellant quantifying his claim in damages.
This conclusion is consolidated all the more by the appellant unambiguously deposing to the effect that all he required was for the court to stop further construction on the land and not to destroy the existing structures as shown in exhibits C, D and E. Against the extensive building operations on the land as depicted in exhibits C, D and E there is no way the land could be put into immediate use for piggery business and other agricultural purpose without destroying the structures in the land.
As regards the other aspect of the matter, there are authorities to support the trial court taking into account of the rising costs of building materials and economic trend in determining the question of balance of convenience as between the parties. See Beaverbrook Newspaper v. Keys (1978) 1 CR 582.
Finally, it seems to me on the peculiar facts admitted on both sides to this matter, which clearly have acknowledged the building construction works already on the land in dispute, that the maintenance of status quo cannot, therefore, be contemplated as the prevailing factors are no longer evenly balanced between the parties.
The instant application has suffered some considerable delay thus making the changed state of affairs in this matter not fit for status quo to be ordered. In the same vein, an undertaking as to damages, which is another aspect of the factor to have in consideration in this matter, again on the particular facts of the matter cannot offer adequate protection to the respondents. This is so irrespective of whether the appellant is capable of meeting the terms of such order or not. Besides, the finding of the court below on the rising cost of building construction has put any serious consideration of this measure beyond the pale of this matter.
It is against the foregoing background that I have come to the ultimate conclusion that the court below was right in holding that pending trial, the respondents stand to lose more at the end of the day if the court were to grant the interlocutory injunction in this matter. And if I may repeat, the rising cost of building construction coupled with the general inflationary trends in the economy, factors the court below rightly in my view took notice of pose very imponderable proposition to granting the said relief. Also the appellant’s averments as contained in his statement of claim show that the land in dispute is situate in a layout now the scene of intense development activities.
For all this, the balance of convenience in this matter is undoubtedly on the side of the respondents. And I so order. Besides, this court would be loathe to interfere with a trial court’s exercise of its discretion as here which has not led to miscarriage of justice.
I am therefore satisfied that the trial court exercised its discretion judicially and judiciously in refusing the application. Its reasoning and conclusions cannot be faulted in that respect.
In the result, I find no merit in the appeal and dismiss it as unmeritorious with N7,500.00 costs to the respondents.
JAMES OGENYI OGEBE, J.C.A.: I read before now the lead judgment of my learned brother, CHUKWUMA-ENEH, JCA just delivered and I agree with his reasoning and conclusion. I have nothing useful to add. The appeal lacks merit and I hereby dismiss it with costs of N7,500.00 in favour of the respondents.
ABUBAKAR ABDUL-KADIR JEGA, J.CA.: I read in advance the lead judgment of my learned brother, Chukwuma-Eneh, JCA just delivered and I agree with his reasoning and conclusion that the appeal is totally lacking in merit and I hereby dismiss it.
The respondents are entitled to the cost of this appeal which I assess and fix in their favour at N7,500.00.
- Adepoju, Esq. For Appellant
- Adejuyigbe, Esq. For Respondent