Webber George Egbe Vs Peter C.a. Onogun (1972)

LawGlobal-Hub Lead Judgment Report

S. SOWEMIMO, Ag. J.S.C.

This is an appeal against an order dismissing an application for an interim injunction. In Suit W/54/70 instituted by the plaintiff against the defendant in the Warri High Court, of the Mid-Western State, the plaintiff claims special and general damages for trespass to land, interim injunction to restrain the defendant from continuing further acts of trespass and perpetual injunction. The portion of land which is the subject matter of the claim is described on the writ as “the piece and parcel of land in Warri Cemetery, Cemetery Road, Warri.

” The act of trespass was that “on 18th April, 1970, the defendant and his agent broke and entered the piece of land. . . to destroy the tombstone and the grave where plaintiff’s late father, the Hon. Asifo Egbe was buried in 1945”.

Along with the summons the plaintiff filed a notice of motion on 5th July, 1970 in the following terms:

“For an order of this Honourable Court

1. Granting the plaintiff/applicant special leave to move this Notice of Motion on Thursday, 7th May, 1970.
2. Granting an interim injunction to prevent the defendant/ respondent, his servants and agents from continuing with their present act of trespass on the grave and the piece and parcel of land in which the late Hon. Asifo Egbe was buried and for such further order or orders as this Honourable Court may deem fit and proper to make in the circumstances.”

In support of the motion the plaintiff filed an affidavit, a further affidavit, a further and better affidavit, a still further and better affidavit whilst the defendant, on his own side, filed a counter-affidavit and a further counter-affidavit. All these took place between 5th May, 1970 and 22nd July, 1970. On 29th July, 1970 the learned judge (Ovie-Whisky J.) heard arguments on the motion and dismissed the application. It is against the refusal to grant the application that the plaintiff had appealed to this Court.

In a rather lengthy ruling the learned judge purported to determine the plaintiff’s right to the relief claimed in the writ of summons, and having concluded that there was no such right known to law refused the grant for an interim injunction.

This appeal turns on the issue whether the learned judge directed himself properly and correctly on the principles governing the exercise by the court of its discretionary powers when dealing with an application for interim injunction. These principles are set out in paragraphs 765 and 766 at pages 365-366 of Vol. 21 of Halsbury’s Laws of England 3rd Edition. The relevant portions read:

Para. 765:

“Where the plaintiff is asserting a right, he should show a strong prima facie case, at least, in support of the right which he asserts; but the mere fact that there is a doubt as to the existence of such a right is not sufficient to prevent the Court from granting an interlocutory injunction, although it is a matter for serious attention. . ..”

Para. 766:

“Where any doubt exists as to the plaintiff’s right, or if his right is not disputed, but its violation is denied, the Court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the defendant, on the one hand, would suffer if the injunction was granted and he should ultimately turn out to be right, and that which the plaintiff, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right. The burden of proof that the inconvenience which the plaintiff will suffer by the refusal of the injunction is greater than that which the defendant will suffer, if it is granted, lies on the plaintiff.”

The above statements were cited with approval by Ungoed-Thomas J. in the case of Donmar Productions Ltd. v. Bart and Others [1967] 2 All E.R. 338 at page 339. The learned judge in his judgment stated inter alia, after quoting the passages referred to above, as follows:

“It is quite clear to my mind from these two passages, that the first passage deals with the need to assert the right which forms the basis on which the claim for relief is asked. The second passage deals with the violation of that right and the considerations that come into deciding whether an injunction should be granted when a violation, as contrasted with the existence of the right, is what is in dispute So in an application for the interlocutory injunction the applicant must establish a probability or a strong prima facie case that he is entitled to the right of whose violation he complains and, subject to this being established, the governing consideration is the maintenance of the status quo pending the trial. ”