S.O. ODULAJA BLACK AND WHITE HOTEL LIMITED v. WEMA BANK LIMITED & ORS (2014)

S.O. ODULAJA BLACK AND WHITE HOTEL LIMITED v. WEMA BANK LIMITED & ORS

(2014)LCN/7480(CA)

In The Court of Appeal of Nigeria

On Monday, the 20th day of October, 2014

CA/L/236M/90

RATIO

COURT: DISCRETION OF THE COURT; WHETHER THE DISCRETION OF THE COURT NOT EXERCISED JUDICIALLY AND JUDICIOUSLY CAN BE INTERFERED WITH

The discretion of the court cannot be questioned where it was exercised judicially and judiciously. Indeed the Court of Appeal will not interfere with a proper exercise of discretion of a lower court. However, where the exercise of discretion tends to do injustice to one of the parties, the Appeal Court must employ its judicial sledge hammer to salvage the situation. Guda v. Kitta (1999) 12 NWLP (Pt. 629) pg. 21; Imani 4 Sons Ltd. v. Bil Construction Co. Ltd. (1999) 12 NWLP (Pt. 630) pg. 254; Mohammed v. C.O.P. (1999) 12 NWLR (Pt. 630) pg. 331; Ehindinhen v. Musa (2000) 4 SC (Pt. 11) pg. 160; Oyekanni v. NEPA (2000) 12 SC v. Kudu Holdings (2000) 12 SC (Pt. 1) pg. 139. per. UZO I. NDUKWE-ANYANWU, J.C.A.

COURT: DUTY OF THE COURT; WHETHER THE COURT CAN GRANT ORDERS NOT PRAYED FOR

The court is not a Father Christmas that grants orders not prayed for. See Oladunjoye v. Akinterinwa (2000) 4 SC (Pt. 1) 19, AGF v. A.I.C Ltd (2000) 6 SC (Pt. 1) p. 175, Dyktrade Ltd v. Omni Nigeria Ltd (2000) 7 SC (Pt. 1) pg. 56 Agrotec Technical Services (Nig) Ltd v. Miit 4 Sons Ltd (2000) DSC (Pt. II) pg, 1, Badmus v. Abegande (2001) 3 WRN pg. 40. per. UZO I. NDUKWE-ANYANWU, J.C.A.

COURT: GRANTING PRINCIPAL ORDER; WHETHER NO ORDER INCIDENTAL TO THE PRINCIPAL ORDER CAN BE GRANTED ONCE THE PRINCIPAL ORDER SOUGHT IN AN ACTION IS REFUSED

COURT: INTERFERENCE; THE GROUNDS UPON WHICH THE JUDGMENT OR ORDER BASED ON THE DISCRETION OF A TRIAL COURT CAN BE INTERFERED WITH

The learned trial Judge, therefore, exercised his discretion wrongly. The Appellate court will, therefore, interfere to use its judicial sledge hammer. “The grounds upon which the judgment or order based on the discretion of a trial court can be interfered with are as follows: (a) where the trial court acted under a misapprehension of the law; (b) where the trial court acted under a misapprehension of the facts in that it gave weight to irrelevant or unproved matters; (c) where the trial court omitted to take into account matters that are relevant; (d) where the discretion of the trial court is exercised on wrong or inadequate materials, and (e) where it is in the interest of justice to interfere to prevent miscarriage of justice, Offordile v. Egwuafu (supra) Likita v. C.O.P. (2002) 11 NWLP (Pt. 775) pg. 145. per. UZO I. NDUKWE-ANYANWU, J.C.A.

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

S. O. ODULAJA BLACK AND WHITE HOTEL LTD Appellant(s)

AND

1. WEMA BANK LTD
2. DIRECTOR OF LANDS LAGOS STATE
3. MILITARY GOVERNOR OF LAGOS STATE
4. ATTORNEY-GENERAL LAGOS STATE
5. MR. IGHODALO
6. MRS. IGHODALO Respondent(s)

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Lagos State sitting in Ikeja delivered on 6th of July, 1990. The Appellants as Plaintiffs had filed a Writ of Summons and thereafter filed a Statement of Claim. These two processes were later amended. The Plaintiffs/Appellants sought the following reliefs:
“1. A declaratory that the Deed of Mortgage dated 13th March, 1985 made between the 1st and 2nd Plaintiffs of the one Part and the 2nd Defendant of the other is null and void on the ground that the 2nd Defendant is (sic) not validly consent to the said transaction.
2. Alternatively, an order against the Defendants jointly and severally setting aside the sale of the said landed property of the 1st Plaintiff situate and know as No: 53 Coker Road, Ilupeju Lagos State by the 1st and 2nd Defendants.
3. Alternatively, an order against the Defendants jointly and severally setting aside the sale of the landed property of the 1st Plaintiff situate at and known as 53 Coker Road Ilupeju Lagos State by the 1st Defendant.
4. An order against the 4th and 5th Defendants from taking possession of being or remaining in occupation of or otherwise interfering with the 1st Plaintiff’s possession of the said property.
5. A declaration that the purported sale of the Duplex House and landed property situate lying and being at 61, Coker road to the 4th and 5th Defendants for the sum of N482,000.00 is illegal and void ab initio.
6. A declaration that the said sale to the 4th and 5th Defendants by Public Auction on 21st day of March, 1989 was an under value of the prevailing market price and was therefore in BAD FAITH and the sale should be set aside.”

The Respondents as Defendants filed their Statement of Defence. The Appellants thereafter filed a motion on notice praying for:
“(1) An order of interlocutory injunction restraining the Defendants, their servants, agents or Privies from committing any further act or acts of trespass and damage to the house and premises situate lying and being at No: 61, Coker Road Ilupeju Lagos, Lagos State or any part thereof.”
“(2) For such further Order or Orders as this Honourable Court right deem it fit and proper to make in the circumstances.

In support of this motion was a 32-paragraph affidavit. The learned trial Judge, refusing the Appellants’ prayers, gave his considered ruling held as follows:
“The 4th and 5th Defendants shall be allowed to move into the house undisturbed subject to this (sic) conditions:
1. That the 4th and 5th Defendants shall not materially alter any part of the building (sic) the determination of the substantive case; for security purposes, however, the fence surrounding the house can be altered
2. Or rebuilt (sic) if need be. Secondly, since it is said there is another tenant in the premises, whose tenancy is seamred (sic) through the Plaintiffs, such tenancy, when it expires, shall not be renewed by anyone but the place shall revert into the…..
It is also further ordered that for this possession of the building which is being granted to the 4th and 5th Defendant, pending this suit the 4th and 5th Defendants shall enter into a written undertaken to pay reasonable rents to the Plaintiffs should they and the 1st and 2nd Defendants lose in the substantive case. Such undertaken shall be given and filed in the court with (sic) 14 days from today.”

The Plaintiffs/Appellants were dissatisfied with this Ruling hence this appeal. The Appellants filed their notice and four Grounds of Appeal on 23rd of July, 1991. Also in their amended notice, filed two more grounds. The Appellants filed their brief on 5th of May, 2001 and articulated three issues for determination. They are as follows:
“(1) Whether the learned trial Judge was right in issuing a mandatory order dispossessing the Appellants of possession in favour of their adversary in a ruling refusing an order of interlocutory injunction when the question of possession is one of the matters to be resolved upon the trial of the substantive suit.
(2) Whether the learned trial judge was right in granting the 5th and 6th Respondents a relief they did not request for.
(3) Whether in the light of the affidavit evidence before court and its findings regarding who was in possession the trial judge was right in holding that the balance of convenience titled against the Plaintiffs such as enabled him to dismiss their application for injunction.”

The Respondents filed their Respondents’ brief and articulated only one issue for determination.
“Whether the court below did not judicially and judiciously exercise its discretion in refusing to grant the Plaintiffs’ application for interlocutory injunction.”

However, issue one, as articulated by the Appellants, will adequately cover the crux of this appeal and I will use some to determine this appeal.

ISSUE 1
The learned counsel for the Appellants submitted that the Appellants, with their amended Writ of Summons and Amended Statement of Claim, claimed inter alia the following relief:
“An order against the 4th and 5th Defendants from taking possession or being or remaining in occupation of or otherwise interfering with the 1st Plaintiff’s possession of the property known as No. 61, Coker Road, Ilupeju, Lagos State”

On the strength of this substantive relief, the Appellants sought from the trial court by means of a motion on notice on order of interlocutory injunction restraining the Defendants/Respondents and their agents from committing further acts of trespass on the said property.

Counsel continued to submit that, of the time this motion was filed and moved, the Appellants still had tenants in the premises i.e. that the Appellants were in actual possession. In spite of this finding, the learned trial Judge proceeded to order that the 5th and 6th respondents, be permitted to enter into possession of the Res which, in effect, displaced the Appellants from possession.

Counsel submitted further that it is trite law that trespass is a tort against possession for which an order of injunction may be issued to restrain the trespasser. A mandatory order cannot be issued to dispossess a party in possession. Counsel referred the court to Ita v. Nyong (1994) 1 NWLR (Pt. 318) pg. 56 at 67.

The learned counsel to the Appellants submitted that a court of law, faced with an application for a grant of injunction pending the determination of the substantive claim, has a duty to ensure that it does not determine the substantive issues during an interlocutory application. See: Akapo v. Hakeem-Habeeb (1992) 6 NWLR Pt. 247 pg. 266 @ pg. 287; Onfi v. Zaria Industries Ltd. (1992) 1 NWLR (Pt. 216) pg. 124.

Counsel submitted finally that the trial Judge violated this settled principle of law when he made a final pronouncement on substantive relief of the Appellants by dispossessing them of disputed Res and handing possession to their adversary.

Counsel, therefore, urged the court to resolve this issue in favour of the Appellants.

In response, the Respondents’ counsel submitted that the trial Judge refused to grant an order of interlocutory injunction and held as follows:
“The interest which the 4th and 5th Defendants have acquired in the property is not that of a stranger. I have carefully considered therefore the balance of convenience in the matter.
The facts in the whole case between the Plaintiffs and the 1st and 2nd Defendants are at par. This being so, if they were the only ones in the suit, one would make an ordinary order to status quo.
But the interest of 3rd parties i.e. 4th and 5th Defendants, who at this stage can be regarded as innocent purchasers have come into the issue. This is the reason why the issue of balance of convenience must come in. I agree with Defence counsel that the Plaintiffs have nothing to lose (sic) except his rents if the 4th and 5th Defendants are allowed to be in possession. After all the Plaintiff’s do not live in the house, they let it out. The 4th and 5th Defendants it is said have nowhere to stay. I believe they will suffer more.
Therefore the application of the Plaintiffs cannot be granted and no order of interlocutory injunction is granted in this matter.”

Counsel opined that granting of on injunction is a discretionary remedy which the trial Judge may exercise judicially and judiciously. Being a discretionary remedy, the court must apply settled principles of law to the facts presented by the parties. The principles to be applied are as follows:-
“(a) The Plaintiff must show that there is a substantial issue to be tried in the suit.
(b) The balance of convenience must he shown to be on the side of the Plaintiff.
(c) It must also be shown that damages will not be an adequate compensation or the wrong complained of but that an irreparable will be done to the case of the Plaintiff if the injunction is not granted; and
(d) The Plaintiff must be prepared to give an undertaking as to damages.”
See also Obeya Memorial Hospital and Anor. v. A-G (1987) 3 NWLR (Pt. 60) pg. 235, Kotoye v. C.B.N. (1986) 1 NWLR (Pt. 98) pg. 419, Onyesoh v. Nnebedunu (1992) NWLR (Pt. 229) Pg. 315, Union Beverages v. Pepsi Cola International Ltd. (1994) 3 NWLR (Pt. 330).
The learned counsel submitted that the trial Judge weighed the balance of convenience and ruled in favour of the Respondents. Counsel urged the court to also rule in favour of the Respondents.

This appeal is against the Ruling delivered by the learned trial Judge in a motion on notice filed by the Appellants as Plaintiffs/Applicants in the court below. The Appellants have prayed for
“an order of interlocutory injunction restraining the Defendants/Respondents, their servants, agents or privies from committing and further act or acts of trespass and damage to the house and premises situate, lying and being at No: 61, Coker Road, Ilupeju Lagos, Lagos State or any part thereof”
The Appellants also prayed for such further order or orders as this Honourable Court might deem fit and proper to make in the circumstances.”
In the Writ of Summons, the Appellants had also prayed inter alia for this relief:
“An order against the 4th and 5th Defendants from taking possession of being or remaining in occupation of or otherwise interfering with the 1st Plaintiff’s possession of the said property.”
The Appellants/Applicants moved their motion for an interlocutory injunction which is at the discretion of the trial Judge. However, this discretion must be exercised within the confines of the law.
“Judicial discretion means that courts are to act according to the rules of reason and justice, not according to private opinion, and according to law; not humour”
Re: Alase (2002) 10 NWLR (Pt. 776) pg. 553.
A court ought at all times to exercise its discretion judiciously judicially. Offodile v. Egwatu (2006) 1 NWLR (Pt. 961) pg. 421
The courts have always cautioned that, a proper exercise of discretion should be according to law and not humour. The exercise of discretion should not be arbitrary, vague and fanciful but legal and regular. It must be upon facts and circumstances presented to the court, from which it must draw a conclusion governed by law. UBN Plc. v. Adjarho (1997) 6 NWLR (Pt. 507) pg. 112.

The Appellants brought a motion for an interlocutory injunction to restrain the Respondents from getting into possession of the Res. In support, the parties filed their respective affidavits. The learned trial Judge is to confine himself to the facts and circumstances presented before him. The Appellants asked for an interlocutory injunction to preserve the Res. The learned trial Judge went beyond what the Appellants had prayed for.

The learned trial Judge refused to grant the Appellants what they prayed for. This refusal was done at the discretion of the trial Judge. The discretion of the court cannot be questioned where it was exercised judicially and judiciously. Indeed the Court of Appeal will not interfere with a proper exercise of discretion of a lower court.
However, where the exercise of discretion tends to do injustice to one of the parties, the Appeal Court must employ its judicial sledge hammer to salvage the situation. Guda v. Kitta (1999) 12 NWLP (Pt. 629) pg. 21; Imani 4 Sons Ltd. v. Bil Construction Co. Ltd. (1999) 12 NWLP (Pt. 630) pg. 254; Mohammed v. C.O.P. (1999) 12 NWLR (Pt. 630) pg. 331; Ehindinhen v. Musa (2000) 4 SC (Pt. 11) pg. 160; Oyekanni v. NEPA (2000) 12 SC v. Kudu Holdings (2000) 12 SC (Pt. 1) pg. 139.

The trial Judge exercised his discretion in refusing the Appellants’ prayers for interlocutory injunction but went ahead to grant extraneous orders to the Respondents which were not prayed for by the Respondents.

The evidence, the trial Judge considered, were extraneous to the orders sought for by the Appellants.

The trial Judge rightly warned himself as to the dangers of dealing with matters which ought to be treated in the substantive case in an interlocutory application. However, the learned trial Judge promptly delved into the substantive claim, discussing the legality of the purchase, the sale, mortgage and consent, all pertaining to the substantive suit.

The learned trial Judge held thus:
“The interest which the 4th and 5th Defendants have acquired in the property is not that of a stranger.
I have carefully considered therefore the balance of convenience in the matter. The facts in the whole case between the Plaintiffs and the 1st and 2nd Defendants are at per. This being so. If they were the only ones in the suit, one would make an ordinary Order of status quo.
But the interests of 3rd parties, i.e. 4th and 5th Defendants, who at this stage can be regarded as innocent purchasers, have come into the issue. This is the reason why the issue of balance of convenience must come in. I agree with Defence Counsel that the Plaintiffs have with (sic) to lose (sic) except his rents if the 4th and 5th Defendants are allowed to be in possession. After all, the Plaintiff’s do not live in the house, they let it out. The 4th and 5th Defendants, it is said have nowhere to stay. I believe they will suffer more.”

The trial Judge went beyond his mandate to discuss issues that would have been dealt with of the trial. The learned trial Judge cannot reach a decision on the propriety and legality of the sale, mortgage and consent to mortgage on only the affidavits of the parties.

This conclusion can only be reached, by calling witnesses, taking evidence and tendering documents to prove same.
The trial Judge obviously went beyond what was envisaged in the application for interlocutory injunction. The Appellants sought this order, if it cannot be granted, it should be refused and nothing more.

The Respondents have not applied for any orders and should not be granted any. The court is not a Father Christmas that grants orders not prayed for. See Oladunjoye v. Akinterinwa (2000) 4 SC (Pt. 1) 19, AGF v. A.I.C Ltd (2000) 6 SC (Pt. 1) p. 175, Dyktrade Ltd v. Omni Nigeria Ltd (2000) 7 SC (Pt. 1) pg. 56 Agrotec Technical Services (Nig) Ltd v. Miit 4 Sons Ltd (2000) DSC (Pt. II) pg, 1, Badmus v. Abegande (2001) 3 WRN pg. 40.

Once the principal order sought in an action is refused, no order, incidental to the principal order can be granted. Awoniyi v. Registered Trustees of the Rosicrucian Order, AMORC (2000) 6 SC (Pt. 1) pg. 103.
It would therefore be right to hold that, the trial Judge went beyond his jurisdiction in the motion on notice, praying for an interlocutory injunction. The learned trial Judge refused this order for interlocutory injunction but went ahead to grant the Respondents an order for possession which was neither applied for nor prayed for.

The learned trial Judge, therefore, exercised his discretion wrongly. The Appellate court will, therefore, interfere to use its judicial sledge hammer.
“The grounds upon which the judgment or order based on the discretion of a trial court can be interfered with are as follows: (a) where the trial court acted under a misapprehension of the law; (b) where the trial court acted under a misapprehension of the facts in that it gave weight to irrelevant or unproved matters; (c) where the trial court omitted to take into account matters that are relevant; (d) where the discretion of the trial court is exercised on wrong or inadequate materials, and (e) where it is in the interest of justice to interfere to prevent miscarriage of justice, Offordile v. Egwuafu (supra) Likita v. C.O.P. (2002) 11 NWLP (Pt. 775) pg. 145.

With the foregoing, it is obvious that the learned trial judge had used his discretion arbitrarily. The learned trial judge had exercised its discretion, on wrong or inadequate materials. Therefore, this court must use its judicial sledge hammer to interfere to prevent a miscarriage of justice.

This issue is resolved in favour of the Appellants. Having resolved this issue in favour of the Appellants, the second and third issues articulated have both been subsumed in the determination of the first issue.

This appeal is allowed. The ruling of the High court of Lagos State sitting in Ikeja is hereby set aside. This suit is remitted to the Chief Justice Lagos State to be assigned to a different Coram for hearing of the substantive suit. I make no orders as to costs

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in advance the succinct judgment prepared by my learned brother, Uzo Ndukwe-Anyanwu, J.C.A. with which I agree and abide by the consequential orders contained therein with nothing useful to add.

JAMILU YAMMAMA TUKUR, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, Uzo Ndukwe-Anyanwu, JCA.
I am in complete agreement with the reasoning and conclusion contained therein that the appeal be allowed and I abide by the consequential orders mode in the lead judgment.

Appearances

For Appellant

AND

John A. G. A.For Respondent