IN THE COURT OF APPEAL LAGOS DIVISION
DAHIRU MUSDAPHER JUSTICE, COURT OF APPEAL
MORENIKEJI OMOTAYO ONALAJA JUSTICE, COURT OF APPEAL
IGNATIUS CHUKWUDI PATS-ACHOLONU JUSTICE, COURT OF APPEAL
MR. ABIODUN ADENIJI APPELLANTS
(Trading under the name and style of Abbey Life & Pensions Consultants Company)
1. TINA GEORGE INDUSTRIES LIMITED RESPONDENTS
2. THE EXECUTIVE GOVERNORS OF LAGOS STATE
3. THE EXECUTIVE SECRETARY, LAND USE AND ALLOCATION COMMITTEE
PATS-ACHOLONU, J.C.A. (Delivering the Leading Judgment):
The plaintiff, in his writ of summons claimed as follows:
1. An Order of perpetual injunction restraining the defendants respondents herein whether by themselves, their agents, servants, privies or howsoever described from entering or remaining upon, taking possession of or otherwise exercising any right in or over the plaintiff/applicant's property situated, lying, known and being at No. 30 Allen A venue, Ikeja, Lagos State.
2. An Order of perpetual injunction restraining the 2nd and 3rd defendants from approving or considering the 1st defendant's application to be granted a Certificate of Occupancy over and above the property situate. lying and being known as No. 30 Allen A venue, Ikeja, Lagos State.
3. General damages in the sum of N3, 000.00 against the 1st defendant for the unlawful entry upon the plaintiffs said property."
Prior to that claim, an ex parte application and a motion on notice were both filed on 9/11/93. The motion ex parte having been taken first, the court below made an order in terms of the motion ex parte paper thus:
"IT IS HEREBY ORDERED AS FOLLOWS:
1. The defendants/respondents whether by themselves, their agents, servants, privies or howsoever described are hereby restrained from entering or remaining upon, taking pos-session of or otherwise exercising any right in or over the plaintiff/applicant's property situate lying and being at No. 30 Allen A venue Ikeja Lagos State pending the determination of the motion for interlocutory injunction already filed in this suit.
2. AN ORDER of interim injunction restraining the 2nd and 3rd defendants/respondents from approving or considering the 1st defendant/respondent's application for a certificate of occupancy is hereby refused."
Thereafter the court proceeded to hear the motion on notice and, took arguments of counsel on both sides. On the 14th January, 1994, it gave a ruling and discharged its former order. Relying on the principles that the court would normally consider before granting or refusing an application for a prayer of injunction, the court held as follows:
"Applying these principles to the instant application, I am satisfied that there are triable issues here. At this stage, on the available material before the court - it is my view that the applicant cannot suffer irreparable injury if the prayer is refused. Thirdly, it is my finding that balance of convenience is on the side of the 1st defendant. Interest of third parties is involved. See Ex. G06 annexed to counter affidavit of George Olaide Omolayole sworn to and filed on the 10th day of December. 1993. I must stress here that A an injunction is not granted to spite ones adversary or to win' round one'. So the prayer relating to the 2nd and 3rd defendants - the prayer cannot succeed for two reasons. First, it will not he right to restrain the 2nd and 3rd defendants, in absence of proof of fraud, to perform their statutory duty more important (sic) it has been established that there is no application of the defendant as it relates to the grant of a Certificate of Occupancy over the said property. What is before the 3rd defendant is an application for consent. In the final analysis, both prayers fail."
Being dissatisfied with the ruling of the High Court, the plaintiff filed notice of appeal consisting of 2 grounds from which 1 or 2 alternate issues were framed and which run thus:-
"i) Whether on the totality of the evidence placed before the lower court, it had in refusing the plaintiffs prayer for an "interlocutory injunction" as reproduced hereinbefore exercised its discretion judicially and judiciously as required by law.
ii).Whether the learned trial Judge refused the application for injunctive relief in line with settled legal principles as can he distilled from decided authorities much aside from whether the exercise of discretion was proper or otherwise.
iii). Whether the interest (if any) of a "third party" who has or claims no "proprietary" interest over above a landed property could be a determinant in refusing or granting the injunctive prayer(s) of a party to an action in the terms of the plaintiff/appellant's Motion On Notice" earlier referred to.
iv) Whether in fact and in law the alleged "third party rights" as stated in the lower court's ruling amounted or generated a cogent and compelling reason generating irreparable injury as to sufficiently tilt the "balance of convenience" in the 1st defendant' s favour."
The respondents framed two issues which arc:
(a) Did the learned trial Judge exercise his discretion correctly in refusing the plaintiff's application for interlocutory injunction?
(b) Was the balance of convenience in the case truly in favour of the 1stdefendant as the learned trial Judge found?
The question simply put is whether in the circumstances of the facts before the court. it should have refused the injunctive relief claimed. Facts in any case constitute the meat and marrow of an action and a party who seeks an injunctive relief should so load his affidavit with overwhelming particulars with sufficient particularities that the court would have no alternative than to accede to the application. Indeed the convincing force of an argument or agitation by the counsel before a court, depends very much on the clarity with which the facts are stated and methodology of approach of the counsel in handling this veritable tool without which his word is hopeless.
On 9/11/93, the plaintiff filed a motion in the court below seeking the order of that court restraining the 1st defendant respondent from taking possession or exercising any rights over the plaintiffs property situate at 30 Allen Avenue and 2nd to 3rd respondents from approving or considering the first defendant's application to be granted a certificate of occupancy in respect of that same property. An awesome 24 paragraphs affidavit was sworn by one Abiodun Adeniji, the Managing Director of the Abbey Life and Pensions Consultants Company. The facts to which he duly relied for the prayer are amply stated in the affidavit in support. I shall give a summary of the facts as contained in that deposition. The kernel of the appellant's case as posited in his affidavit under reference in his hid to get the injunctive relief can he stated thus. He stated that he bought a place known as 30 Allen Avenue, Ikeja from Mr. A.O. Osinuga after a deed of conveyance and registration of the deed had been done. On the 4th of November, 1994, he saw some sand and gravel piled on the site and on discovery of the identity of the trespasser, he thereupon reported the matter to the Police. At the Police Station, the Director of the 1st defendant/respondent company who was arrested informed the Police that they bought the property from one Mr. Afolabi Dixon and had in fact applied for certificate of occupancy.
Notwithstanding this, the workmen of the 1st defendant continued to work day and night to erect a building. With this state of affairs, he decided to file an action in which the Governor and the Secretary of Land Use Allocation Committee are made parties to restrain them from granting a certificate of occupancy to the respondent. In its counter affidavit, the chairman of the 1st defendant/respondent company relied on the strength of the story told to him by his predecessors in title to wit Mr. Pius A. Ojo and Madam Layinka Awojobi that the 1st respondent is lawfully vested with the land in dispute. He stated that up till December, 1990, the property was delineated and surveyed and is known as Plot 16A and 168. He deposed that Abiodun O. Osinuga became seised of the part of Plot 16 of the disputed land known as Plot 16A and added for emphasis that the proprietary rights, root of title and the geographical area coverage as shown in Government Layout Plan have been adjudicated upon in suit Pius A. Ojo v. Abiodun O. Osinuga and Kafem Consult Ltd.
He stated that the plaintiff/appellant was in court throughout the proceedings and did nothing. He said that since 1990 the 1st defendant/ 1st respondent had been enjoying uninterrupted possession of the land. He denied any arrest of the Directors of his company and admitted that the company had since 1993 commenced erection of a three stories block and denied having entered into any agreement to sell to anyone. The 1st respondent slated that they had neither applied nor even evinced an intention to apply for a certificate of occupancy. In a reply affidavit the plaintiff appellant deposed that Plot A is known as No. 28 Allen Avenue, Ikeja and he denied that Osinuga conveyed any part or portion of Plot 16 or 30 Allen Avenue Madam Olayinka Awojobi.
He denied being aware of the court action and subsequent judgment referred to by the 1st respondent.
The quagmire that is the bane of this case and the diametrically opposing stale of facts, demonstrate what courts faced in dealing with this type of problems had to deal with. Laid hare before the court is account of how each principal party bought the land from certain individuals. The thrust of the appellant', case is that the learned trial Judge did not exercise his discretion judicially and judiciously. In considering an application of this nature when the history of the devolution of title and other related facts are vehemently opposed, the court would look at the issues involved and canvassed, with a view to discovering where the balance of convenience and therefore on which side the case preponderates. It should not engage in attempt to discover the truth of the main action as any order it might make would to all intents and purposes be interim in nature. The 1st respondent in its counter affidavit deposed that it had neither applied nor indeed evinced an intention to apply certificate of occupancy. In his reply, the appellant did not advert his mind to it or indeed this averment. What then shall we make of that. In Soy Agencies Ind. Service Metalum Ltd. (1991) 3 NWLR (Pt.177) 35, it was held that unchallenged and uncontradicted averments in an affidavit are admissible in law and a court of law is entitled to give full weight and value to such an averment but will not admit unchallenged or uncontroverted affidavit evidence or oral evidence which has become of knowledge notoriety is untrue. See also National Insurance Corporation of Nigeria v Power and Industrial Engineering Co. Ltd. and industrial Engineering Co. Ltd. (1986) 1 NWLR (Pt.14) 1 p.1: Egbuna v. Egbuna (1989) 2 NWLR (Pt. 106) 773.
It must be stated unflinchingly that the action was taken as a preemptive measure to prevent the 2nd and 3rd respondent from granting to the 1st respondent certificate of occupancy. The appellant claimed for discretionary order of perpetual injunction. Before an order of interlocutory injunction is made, the court would, exercise the discretion based on the facts made available to it, knowing fully well that it cannot determine the case at that stage. Thus in Kotoye v. Central Bank of Nigeria & 7 ors. (1989) 1 NWLR (Pt. 98) 419, the Supreme Court held that before a court would grant interlocutory applications it must know the strength of the case, the balance of convenience, the issue of compensation by payment of damages and indeed the conduct of the parties as it is an equitable remedy that one applying for, l must confess that by the nature of the claim being made, the court would inevitably be walking through a mine field and cautions itself against untoward acts. The basis of the application interlocutory application in the court below is essentially stated as paragraphs 15 - 17 of the affidavit in support:
15. The 1st defendants workmen are presently working at the said property both during the day lime and at night with a view to erecting a building on the said property, the subject matter of this action within the earliest possible period.
16. If the 1st defendant is not restrained forthwith. I would suffer irreparable damage and loss in the event that I succeed in the substantive matter as I would be unable to put the property to the use for which I desire.
17. I am informed by Adeniyi Adegbonmire of counsel in the law firm of Aluko & Oyebode of 35 Moloney Street, Lagos, my company's solicitors for the purpose of the conduct of this matter and I verily believe him that it is necessary in view of the facts as stated in paragraph 13 above to restrain the Executive Governor of Lagos State and the Executive Secretary of the Land Use and Allocation Committee, Lagos State from approving or in any way considering the application of the defendant as it relates to the grant of a Certificate of Occupancy over the said property being the persons seised with the powers or duties of granting a Certificate of Occupancy in respect of any landed property within Lagos State. Now the 3rd claim is over trespass. There is no claim for declaratory relief as to the property. From the affidavits, it becomes important that the court below might have reasoned that a wrong step would jeopardise the proceeding to discover the truth of the matter. Although an allegation that workers of the 1st respondent are building on the Land night and day, its stand is that the land is its own and that it has a good reason to continue. When the court made an order ex parte imposing a restraint, the respondent fully complied. It is the case of the appellant that on the strength of the facts the courts below failed to exercise its discretion judiciously and judicially. The twin terms import assiduous and painstaking considerations of the facts as marshaled by the parties and the court using its undoubted power or adjudication to minutely examine to which party the convenience of the matter lies. I am convinced that the lower court acted with caution to leave things as they were.
The appellant had complained that 1st respondent is continuing with the erection of the building on the land. These facts were before the lower court which was more persuaded by the counter affidavit of the 1st respondent in deciding that the balance of convenience does not tilt on the side of the appellant. It is a true law that a party who is erecting a building on a land that is a subject matter of litigation and continues to do so does so at his own risk for the principle quid quid plantatur solo solo cedit shall apply.
I have carefully read the brief of the appellant and it is firmly arguing the points that to my mind will he raised at the main trial in the court below. The issue of ownership sought to be made out by the 1st respondent and the issue or Possession canvassed by the appellant are matters that should be calmly and cooly argued with particularities in the main case. It seems to me that the nature of the nature of the case caused the learned trial Judge to exercise caution and indeed he imposed a restraint on himself in refusing to make the order sought as he might unwittingly be trying the case on a mere conflicting affidavit.
In the final result, I agree with the order of the learned trial Judge in to make the order sought and setting aside the earlier order made ex parte. I would not disturb the ruling of the court below. The order of the court below in refusing to make the order of interlocutory injunction stands. Costs of N2,500.00 for the respondent.
MUSDAPHER, J.C.A.: I have had the preview of the judgment or my Lord Pats Acholonu, J.C.A. just delivered and I respectfully agree with the reasoning and the conclusion arrived at. It is now settled Iaw that requires no citing of authorities that an appellate court would not ordinarily reverse a discretionary order made by a trial court. I am not convinced that the arguments of learned counsel for the appellant are sufficient to warrant me to interfere with the judicial discretion. The learned trial judge clearly in my view properly adopted the guiding principles as enunciated for example in Ayorinde v. A-G., Oyo State (1996) 3 NWLR (Pt.434) 20 and A.C.B. Ltd., v. Awogboro (1996) 3 NWLR (Pt.4370 383.
I too find this appeal unmeritorious and abide by the order for costs proposed in the said leading judgment.
ONALAJA, J.C.A.: 1 have been privileged to have a preview in draft of the lead judgment just delivered by learned brother PATS-ACHOLONU. J.C.A., which centered around of grant or refusal of interim' and interlocutory injunctions. With the in N. A.B. Kotoye v. Central of Bank Nigeria & 7ors. (1989) 1 NWLR (pt.98) page 419 SC and Obeya Memorial Hospital v.Attorney General of the Federation & Anor. (1987) 3 NWLR (pt.60) at 325 SC, the law on grant or refusal of interlocutory injunction is crystal clear, well settled and no longer recondite. In my humble assessment the approach of my learned brother PATS-ACHOLONU, J.C.A has blessings as his reasoning accords with my thoughts on the matter on appeal leading me to adopt the reasoning as my own.
The grant or refusal of interlocutory injunction being an exercise of judicial discretion is to be exercised judicially and judiciously. The attitude of appellate court on exercise of judicial discretion is well settled with a restatement of the principle clearly stated in what is now acceptable as the rule in University of Lagos & anor v. Aigoro (1985) 1 NWLR (Pt.1) page 143 SC applied followed and adopted in Ojimba v. Ojimba (1996) 4 NWLR (Pt.440) page 32 CA; Olumolu r. Islamic Trust of Nigeria (1996)2 NWLR (Pt. 430) page 253 SC. I agree with the lead judgment applying the above mentioned legal authorities that there are no legal basis to reverse the exercise of the judicial discretion by the lower court giving me no alternative than to agree with the lead judgment that this appeal lacks merit and rightly dismissed.
I abide with the consequential orders made in the lead judgment.