WETIPP NIGERIA LIMITED v. CHIEF LABIYI LADIPO & ORS
(2014)LCN/7605(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of December, 2014
CA/I/90/2010
RATIO
PRACTICE AND PROCEDURE: INTERLOCUTORY INJUNCTION; THE PURPOSE OF AN APPLICATION FOR AN INTERLOCUTORY INJUNCTION
Now the purpose of an application for an interlocutory injunction is to keep the parties in status quo in which they were before the judgment or act complained of. See Globe Fishing Industries Ltd. & Ors. vs. Chief Folarin Coker (1990) NWLR part 162 p.265 also reported in (1990) 11-12 SC 80; Akibu vs. Oduntan (1991) 2 NWLR part 171 p.1 also reported in (1991) 2 SC 77. The Supreme Court per Tobi JSC stated the position of the law thus: “An interlocutory injunction which is granted in the litigation process is basically aimed at maintaining the status quo pending the determination of the issues submitted for adjudication by the court. It is an equitable jurisdiction which the court is called upon to exercise in the light of the facts presented before it by the applicant. And in order to enable the court exercise its equitable jurisdiction, the applicant must present convincing facts which in themselves vindicate the well laid down principles for granting the injunction as decided in Kotoye vs. CBN (1989) 2 SC part 1 p.1 (1989) 1 NWLR Part 98 p.419 and the group of cases.” See Buhari vs. Obasanjo (2003) 17 NWLR part 850 p.587 (2003) 11SC 74. per. OBIETONBARA DANIEL-KALIO, J.C.A.
COURT: POWER OF THE COURT; WHETHER A COURT IS WITHOUT POWER TO GRANT A RELIEF NOT CLAIMED BY A PARTY BEFORE IT
It is again, trite law that a court is without power to grant a relief not claimed by a party before it. See Ekpenyong vs. Nyong (1979) 7 SC 71; Ochonwa vs. Unosi (1969) NMLR 321; Nwanya vs. Nwanya (1987) 3 NWLR part 62 p.154: Odofin vs. Agu (1992) 3 NWLR part 229 p.359 – 360. per. OBIETONBARA DANIEL-KALIO, J.C.A.
JUSTICES
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
WETIPP NIGERIA LIMITED – Appellant(s)
AND
1. CHIEF LABIYI LADIPO
2. CHIEF ADELEKE MAKINDE
3. MR. LEKAN OLADIPUPO
(For themselves and on behalf of OSANYINDINA Family) – Respondent(s)
OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This appeal is over the Ruling of the lower court in an application for an order of interlocutory injunction. In the substantive matter, the respondents in this interlocutory appeal had sued the appellant claiming against the appellant the sum of N25 million as damages for wrongfully entering a parcel of land at Ikija Village Idi Ayunre Ibadan without the knowledge and/or consent of the respondents. The respondents also sought an injunction restraining the appellant, its agents, servants or privies from continuing with the trespass to the land and from carrying on any work on the land to the detriment of the respondents. The respondents’ suit against the appellant was filed on 12/7/06.
Not prepared to wait for the conclusion of the matter before getting a relief, the respondents on 16/1/2007 filed a motion on notice dated 10/1/2007 seeking an order of interlocutory injunction to restrain the appellant, its agents, servants or privies from going on the land or doing anything therein pending the determination of the suit.
The Respondents filed an affidavit of 26 paragraphs, an affidavit of Urgency of 11 paragraphs and a further affidavit of 11 paragraphs in support of their motion on notice. The appellant responded by filing a counter-affidavit of 33 paragraphs.
After listening to learned counsel for the parties, considering the pleadings and the affidavit evidence before him as well as relevant case law on the subject, the learned trial judge in a Ruling delivered on 21/02/2008 felt satisfied that the conditions for the granting of an order of Interlocutory Injunction had been satisfied. He therefore ordered that the appellant, that is, the defendant before him, by itself and its agents, be restrained from further excavating or doing anything in the land in dispute pending the determination of the suit before him. He also ordered the respondent to give an undertaking to pay damages to the appellant (defendant in the lower court) in the event that the respondents (the plaintiffs in the lower court) did not succeed in getting judgment in their favour. He further ordered N1,000 costs in favour of the respondents.
Aggrieved by the Ruling the appellant pronto, by a Notice of Appeal filed on 22/2/2008, just a day after the Ruling, appealed against the Ruling on 5 grounds. The grounds and particulars of grounds (except for ground 5 which had no particulars) are reproduced hereunder as follows:
1. The learned trial judge erred in law when he held that the balance of convenience lies in favour of the plaintiff.
Particulars
(a) When the plaintiffs only deposition in paragraph 22 of the affidavit in support and paragraph 10 of the further affidavit was that they would suffer irreparable damage if the defendant is allowed to exploit the rock on Ojeke hill on the land in dispute without enumerating the specific losses they would suffer;
(b) When the defendant in paragraphs 17, 19, 20, 21, 22, 23, 24, 28 and 29 enumerated the damages and inconveniences it would suffer if the application is granted as follows:
(i) That defendant has paid N10m to its landlord for the land;
(ii) That the defendant has at least 150 both skilled and unskilled workers on site and that they would be thrown into the unemployment market;
(iii) That the machinery and equipment would become corroded and fall into disuse if they are not run regularly;
(iv) That the defendant would be exposed to claim in damages for breach of contract;
(v) That the defendant’s business would be adversely affected;
(vi) That the defendant would suffer irreparable loss.
(c) When from the affidavit evidence, the balance of convenience is not in favour of granting the application for interlocutory injunction.
2. The learned trial judge erred in law when he held that there was no undue delay on the part of the plaintiffs in bringing the application for interlocutory injunction.
Particulars
(a) When it was established by affidavit evidence that the defendant has been on the land since 2005.
(b) When it was established by affidavit evidence that the defendants commenced full operations on the land in March 2006.
(c) The plaintiffs filed their writ of summons in July 2006 and filed their application for interlocutory injunction in January, 2007.
(d) When the plaintiffs were aware of the presence of the defendant on the land in dispute as far back as October 2005.
(e) When the conduct of the plaintiffs in this case as a whole does not deserve a favourable consideration.
3. The learned trial judge erred in law when he held that the plaintiffs have established a legal right to the land in dispute which is being threatened.
Particulars
(a) When it was established by affidavit evidence that the defendant’s landlord had already sued the plaintiffs herein in Suit No.I/486/2006 which suit is earlier in time and is still pending in High Court No. 10 Ibadan.
(b) When it was established by affidavit evidence that the defendant’s landlord had filed an application for interlocutory injunction against the plaintiffs in the said suit No.I.486/06 to restrain them from further trespassing on the land which is the same subject matter of this suit.
4. The learned trial judge erred in law when he granted the order of interlocutory injunction sought by the plaintiffs.
Particulars
(a) The learned trial judge did not exercise its discretion judicially and judiciously.
(b) The learned trial judge did not properly consider or evaluate the affidavit evidence filed before the court.
5. The decision and order made by the learned trial judge was against the weight of affidavit evidence before him.
The Appellant’s Brief of Argument was filed on 22/7/10. The Brief was settled by Ojo Daniel Esq. and was adopted and relied upon by learned counsel at the sitting of this court on 3/11/14. The appellant formulated only one issue for determination in this appeal. It reads.
“Whether the lower court was not in error when it held that the respondents have satisfied the conditions for the grant of an order of interlocutory injunction.”
In the Respondents Brief of Argument settled on their behalf by Olusina Osunlakin and also adopted and relied upon by learned counsel a lone issue for determination was also penned for determination by this court. It is:
“Whether this honourable court should reverse the Ruling of the lower court to the effect that the Respondents had satisfied the conditions for granting of the order of interlocutory injunction against the Appellant.”
The difference between the issues as formulated by both learned counsel and reproduced above can be likened to a case of six to one person and half a dozen to another person. In other words, there is no substantial difference between the two. I will go with the issue for determination as formulated by the appellant’s learned counsel.
In arguing the lone issue, learned counsel to the appellant submitted that in arriving at a decision on the application for the interlocutory injunction sought, the lower court ought to have considered affidavit evidence before the court in order to find out whether the act sought to be restrained was a completed act or not. Learned Counsel referred us to the respondents’ prayer in their motion on notice and submitted that from the way the prayer was couched, it presupposes that the appellant was yet to enter the land in dispute and take possession of it. Learned Counsel copiously referred to paragraphs 8 – 12, 15 and 16 of the counter affidavit before the lower court, which paragraphs he submitted, were not denied and thus deemed admitted. He then contended that the respondents were aware that the appellant had already been put in possession of the land in dispute since October 2005. Having become so aware of that fact, appellant counsel submitted that the respondents still went ahead to seek
an order of injunction to restrain the appellant from the land. He submitted that an injunction does not lie against a completed act. We were referred to Uzondu vs. Uzondu (1997) 9 NWLR part 521 p.466 at 428; Governor of Oyo State vs. Anosike (1987) 4 NWLR part 66 p.663 at 673 and Udemah vs. Nigerian Coal Corporation (1991) 3 NWLR part 180 p.47) at 490. We were urged to hold that the lower court erred in law in granting an order of interlocutory injunction to restrain a completed act.
Appellant Learned Counsel submitted, relying on the case of C G C (Nig.) Ltd. vs. Baba (2004) 10 NWLR part 882 p.658 at 678-679 that a court will refuse an order of injunction where there is no serious issue to be tried. Learned Counsel argued that there was no triable issue or question to be tired since according to him, a suit had been instituted against the respondents challenging their claim to the land in dispute by the appellant’s landlord, the Efunsetan Family.
Learned Counsel submitted that the lower court failed to consider the balance of convenience. Had the lower court considered the affidavit evidence before it, it was argued, it would have found that the balance of convenience is in favour of the appellant which stood to suffer more if the application was granted.
Learned Counsel submitted that since the Respondents in their writ of summons and statement of claim claimed the sum of N25 million in damages against the appellant, the lower court ought not to have granted the order of injunction sought irrespective of how strong the respondents claims may appear to be. We were referred to the case of Abdullahi vs. Governor of Lagos State (1989) 1 NWLR part 97 p.356 at 369.
Learned Counsel argued that the respondents did not give a satisfactory undertaking as to damages in paragraph 25 of the affidavit in support of their motion on notice. The said paragraph it was submitted ought to have indicated the means through which the undertaking would be met. The case of Ita vs. Nyong (1994) 1 NWLR part 318 was cited.
Appellant’s Learned Counsel submitted that the Respondents were guilty of delay in bringing their application before the lower court. Learned Counsel referred to paragraph 8 and 16 of the counter affidavit to show that the appellant was put in possession of the land in 2005 and commenced full operation on the land in March 2006. The Respondents only filed their application for an interlocutory injunction on the 10th of January, 2007 he argued. It was submitted that the lower court ought to have refused the application.
In response, Respondents Learned Counsel Olusina Osunlakin Esq., submitted in the Brief of Argument that an application for interlocutory injunction is one that requires the court to exercise its discretion which discretion must be exercised judicially and judiciously. In the application before the lower court, that court it was submitted, exercised its discretion judicially and judiciously in that it came to its decision after weighing the facts and materials placed before it.
Learned Counsel submitted that the appellant’s action was not a completed act as the appellant continued to excavate granite on the land in dispute. It was submitted that the lower court was right to have restrained the actions of the appellant.
On the appellant’s argument that its landlord instituted an action against the respondents challenging their claim to the land, it was submitted that in a Ruling delivered on the 6th of August 2007 in consequence of an application by the appellant challenging the suit for being an abuse of court process, the Hon. Justice E.C.A. Lufadeju ruled that the Respondents’ action was not an abuse of court process. We were referred to pages 17 to 24 of the Record of Appeal. It was submitted that the Ruling of the said Hon. Justice Lufadeju constitutes estoppel per rem judicatam against the appellant.
It was submitted that the lower court properly evaluated the evidence before it and that in the circumstances the appellate court will not disturb the findings made by the lower court. We were referred to Joe Golday Company Ltd. & Ors. vs. Cooperative Development Bank Plc. (2003) 26 WRN 1 at p.26 and General & Aviation Services Ltd. vs. Yhahal (2004) ALL FWLR part 221 p.1368 at 1394.
With regard to an undertaking as to damages, learned counsel submitted that the Respondents had duly complied with the order of the lower court by filing an undertaking in the Registry of the lower court on the 27th of February 2008 and same was served on the appellant. Learned Counsel referred to the case of Ita vs. Nyong (1994) 1 NWLR part 318 p.56 also cited by the appellant’s learned counsel and contended that the court in that case held at page 72 of the law report that in an undertaking as to damages, an arbitrary specific sum of money is not imposed. We were urged to resolve the lone issue in favour of the Respondents.
Now the purpose of an application for an interlocutory injunction is to keep the parties in status quo in which they were before the judgment or act complained of. See Globe Fishing Industries Ltd. & Ors. vs. Chief Folarin Coker (1990) NWLR part 162 p.265 also reported in (1990) 11-12 SC 80; Akibu vs. Oduntan (1991) 2 NWLR part 171 p.1 also reported in (1991) 2 SC 77. The Supreme Court per Tobi JSC stated the position of the law thus:
“An interlocutory injunction which is granted in the litigation process is basically aimed at maintaining the status quo pending the determination of the issues submitted for adjudication by the court. It is an equitable jurisdiction which the court is called upon to exercise in the light of the facts presented before it by the applicant. And in order to enable the court exercise its equitable jurisdiction, the applicant must present convincing facts which in themselves vindicate the well laid down principles for granting the injunction as decided in Kotoye vs. CBN (1989) 2 SC part 1 p.1 (1989) 1 NWLR Part 98 p.419 and the group of cases.”
See Buhari vs. Obasanjo (2003) 17 NWLR part 850 p.587 (2003) 11SC 74.
Did the respondents by affidavit evidence provide convincing facts which showed that the status quo prayed for should be maintained?
The prayer before the lower court was for “an order of interlocutory injunction restraining the Defendant/Respondent, its agents, servants and/or privies from going on and doing anything on the land in dispute pending the determination of this suit.” It is clear to me that by that prayer, the status quo sought to be kept or maintained is the state in which the appellant had not gone onto the land to do anything in it. Rather surprisingly, the facts averred in the affidavits in support of the application did not support that status quo prayed for.
Paragraphs 6 and 7 of the affidavit in support of the motion for the interlocutory injunction which were also reproduced verbatim in the further affidavit in support of the application are particularly poignant. The paragraphs read as follows:
“6. The defendants have continued work on the land in dispute day and night with a view to start exploiting the rock on the land despite this case and the motion for injunction.
7. The defendants have now started the exploitation of the rock with fierce looking men guarding the entry to the land in dispute.”
The above paragraphs are not consistent with the status quo prayed for in the application before the lower court. The facts in the said paragraphs show that contrary to the prayer in the motion on notice, the appellant was already on the land and exploiting the rock in it. Clearly therefore, what was sought to be restrained by the injunctive order sought was already carried out and taking place to the knowledge of the respondents. It is trite law that an interlocutory injunction is not a remedy for an act which has already been completed or carried out. See John Holt (Nig.) Ltd. & Anor. vs. Holt African Workers Union of Nigeria & Cameroons (1963) 1 ALL NLR 379 at 384; Odufuwa vs. Johnson (1971) 1 ALL NLR .142 at 171; Commissioner for Works, Benue State vs. Devcon Development Consultants Ltd. (1988) 3 NWLR part 83 p.407 at 427; Anosike Building & Commercial Co. Ltd. vs. FCDA (1994) 8 NWLR part 363 p.421 at p.432; A.G. Anambra State vs. Okafor (1992) 2 NWLR part 224 p.396 at 419.
From the fact before the lower court, that court was wrong to have granted the interlocutory injunction sought since the act sought to be restrained had been carried out. It is important to also state here that the prayer before the court was not one to restrain the appellant from “further” carrying out any act on the land. The lower court was therefore wrong when it made an order restraining the appellant from “further” excavating the land in dispute.
It is again, trite law that a court is without power to grant a relief not claimed by a party before it. See Ekpenyong vs. Nyong (1979) 7 SC 71; Ochonwa vs. Unosi (1969) NMLR 321; Nwanya vs. Nwanya (1987) 3 NWLR part 62 p.154: Odofin vs. Agu (1992) 3 NWLR part 229 p.359 – 360.
I think it is always a good thing for a court before which there is an application for an order of interlocutory injunction, to ponder whether it is not better to grant an accelerated hearing instead. This is because more often than not, the Ruling of the court is appealed with the consequence that the main matter is left suspended until when the appeal is determined.
There is no telling when the appeal will be determined. There is of course the further possibility that even the judgment of the appellate court on the Interlocutory Ruling can be further appealed to the highest court in the land. Take this appeal for instance: The Ruling of the lower court was delivered on the 21st day of February 2008. Judgment on the Ruling is only being delivered now at the twilight of 2014. A period of six years has passed. Hearing in the substantive case is yet to commence. Had the judge ordered accelerated hearing, the substantive case probably would have been concluded in the lower court. As it is now, no one can hazard a guess when the lower court will conclude the matter.
The admonition of the court in Onyesoh vs. Nnebedum (1992) 3 NWLR part 229 p.317 at p.325 is worth heeding. Said the court in that case:
“Whenever it is possible to accelerate the hearing of a case, instead of wading through massive affidavits and hearing lengthy arguments on interlocutory injunction, the court should accelerate the hearing and decide finally on the rights of the parties.”
In the final analysis, I have come to the conclusion that the appeal has merit. I will therefore allow it. The order of interlocutory injunction made by the lower court on the 21st day of February, 2008 is hereby set aside. N20,000 costs is awarded to the appellant and against the Respondents.
HARUNA SIMON TSAMMANI, J.C.A.: I was able to read before now, the judgment just delivered by my learned brother Obientonbara Daniel-Kalio, JCA.
The issues that came up for determination were adequately and admirably resolved by my learned brother. I have nothing else to add. I therefore agree and do hold that the appeal has merit. It is hereby allowed. Consequently, the order of interlocutory injunction made by the court below is hereby set aside.
I abide by the order on costs.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: An application before a court for an injunctive relief is a call for the exercise of the judicial discretion of the court. See Okeke-Oba v. Okoye (1994) 8 NWLR 504-630. A judicial discretion ought to be founded upon facts and circumstance presented to the court from which it must draw a conclusion governed by the law. A discretion must be exercised honestly and in the spirit of the statute, otherwise the act done would not fall within the statute, hence the exercise of judicial discretion is a on science of understanding to discern between falsity and truth, between equity and colourable glosses and preferences and not to do their will and private affection.
Therefore when there is a call for an order of maintenance of status quo, the status quo to be maintained/presumed when making an order of interlocutory injunction is the status quo that existed before the criminal and illegal act on the part of the defendant. It follows that an order of interlocutory injunction to restrain trespass to land must relate to the period before the respondent made his unlawful entry into the disputed land. The order of maintenance of status quo in the case at hand is misplaced. Where such occurs regardless of the fact that an appellate court would normally be very reluctant to interfere with the exercise of discretion by a lower court, but it would as of right and duty to inquire whether or not the discretion of a lower court was rightly exercised and whether or not it was exercised judicially, that is, in accordance with the law, the rules and all existing binding decisions interpreting the law or the rules. Therefore if a court proceeds on a wrong principle in a matter within its discretion, its order may be set aside by an appellate court.
For these reasons and the more detailed version in the lead Ruling of my learned brother Obietonbara Daniel-Kalio, JCA I also set aside the order of interlocutory injunction made by the lower court on 21st day of February 2008.
I abide by the order of cost of N20, 000.00 in favour of the appellant and against the respondent.
Appearances
Babatunde OsibanjoFor Appellant
AND
O.I. OsunlakinFor Respondent
