Alhaji Abubakar Abdullah & Anor V. The Military Governor of Lagos State & Ors (1998)

LawGlobal-Hub Lead Judgment Report

AKPATA, J.C.A.

This appeal revolves on the correct application of the settled but sometimes intriguing principles of law governing the grant or refusal of an order of interim or interlocutory injunction.

In the High Court of Lagos State, Ikeja Division, the plaintiffs by a writ of summons filed on 30th June, 1986 claimed for N1, 600,000.00 as special and general damages for trespass committed on 13th June, 1986 by the Military Governor of Lagos State and the Commissioner for Works and Transport, the first and second defendants respectively, by their servants or agents. The trespass was said to have been committed on the land of the first plaintiff situate at Mulero Village, Agege. The statement of claim was filed the following day 1st July, 1986. The plaintiff also claimed for a perpetual injunction restraining the defendants by their servants and/or agents from committing further acts of trespass on the said land.

By a motion on notice dated 11th July, 1986 brought under Order 39 Rule 12 of the High Court of Lagos State, (Civil Procedure) Rules 1972, the plaintiffs sought for an order of interlocutory injunction against the first and second defendants by their servants and/or agents, “from further interfering in any way whatsoever with the peaceable possession of the land and in particular an order restraining the first and second defendants by their servants and/or agents from carrying out further demolition of the concrete wall fence erected or that may be erected on the land, the subject matter of this suit pending the determination of the substantive suit…”

The motion was supported by an affidavit of 28 paragraphs sworn by Alhaji Abubakar Abdullah, the first plaintiff, who is the Chairman and Managing Director of the second plaintiff, Alhaji Abubakar Abdullah & Sons Limited. In the said affidavit, the first plaintiff deposed to how he acquired the land and the fact that before he constructed a concrete wall-fence around the land he had applied and obtained an approved plan dated 10/3/77, duly signed by the Chief Town Planning Officer, Ministry of Works and Planning, Town Planning Division, Lagos State. The concrete wall fence was “within the confines of the approved plan.” He also constructed an office accommodation for his company, the second plaintiff, within the premises. Also within the premises were a fleet of trailers and trucks and herd of cattle.

He went on to narrate how on 11/6/86, three officials of the second defendant came there and informed him that the first defendant would come to inspect Mulero area and that the first defendant in fact paid a visit to the site the following day 12/6/86, and also that on 13/6/86, the agents of the first and second defendants, accompanied by men of the Nigerian Police and the Nigerian Army “forcefully broke into and entered a portion of the said land by demolishing part of the concrete fence with caterpillars and bull-dozers and went further to inflict serious damages to some of the trailers and trucks in the premises.” Arising from these acts of demolition of the wall-fence “a total of 175 herd of cattle in the premises bolted away and only six were retrieved.”

He deposed further that he had to re-erect the concrete wall fence “in order to safeguard the property in the premises from the risk of night marauders and armed robbers.” He averred that he was expecting three trailers from Sokoto bringing rams for the approaching Id-El-Kabir and that they would not be safe if he did not re-erect the concrete wall fence. He then deposed at paragraphs 25 and 27 of the affidavit thus:

“25. That unless the 1st and 2nd Defendants by their servants and/or agents are restrained by an order of this Honourable Court, there is every likelihood and possibility that the agents and servants of the 1st and 2nd Defendants/Respondents will come back to the land and repeat the demolition exercise on a large scale.

27. That I am prepared to enter into an undertaking to indemnify the State Government of any loss occasioned thereby if it turns out at the end of the proceedings that the prayer ought not to have been granted.”

When the matter came on for mention on 21/7/86 the defendants’ counsel applied for a date after the long vacation and that they would file a counter-affidavit particularly as the plaintiffs did not file an affidavit of urgency.

Counsel for the plaintiffs drew attention to the fact that the defendants were served on 11/7/86 before the vacation commenced and intimated the court that the Sole Administrator of the Ikeja Local Government went back to demolish the wall fence and that the fears expressed by the 1st plaintiff at paragraph 25 of his affidavit, which has been reproduced above, had been justified and therefore prayed the court to give the defendants only a short adjournment.

Counsel for the defendants drew attention of the court to the observation of counsel for the plaintiffs that it was the Sole Administrator of the Local Government that demolished the fence and that it was therefore not correct to say that the defendants did. He argued that the act of the Local Government was not the act of the Lagos State Government as the Local Government “is the third tier of Government.”

Counsel for the plaintiffs pleaded that there should be no further demolition until the matter was finally disposed off and urged the defence counsel to give an undertaking. Counsel for the defendants said he could not give such undertaking as he was not representing the Local Government. Counsel for the plaintiffs then prayed the court to grant an interim injunction since the defendants’ counsel could not give the undertaking. The defendants’ counsel contended that the court could not hear the matter during the vacation as there was no affidavit of urgency before the court.

In her ruling, Sotuminu, J. noted that both sides could not agree to her taking the motion during vacation. Without an affidavit of urgency she could not do so without the consent of the parties. She, however, “advised” both sides to keep the status quo pending the final determination of the application before her. She accordingly adjourned the motion to Monday 8th September, 1986, a date immediately after the long vacation.

A week later, that is, on 28/7/86 the plaintiffs filed an identical motion supported by an identical affidavit to the motion and affidavit filed on 11/7/86. They however filed along with the application an affidavit of urgency sworn by the first plaintiff. Paragraphs 5 – 7 and 14 – 17 of the said affidavit of urgency read: