G. C. Nigeria Limited V. Alhaji Hassan Baba (2003)

LawGlobal-Hub Lead Judgment Report

DALHATU ADAMU, J.C.A.

The respondent herein (as plaintiff) instituted this case against the appellant (as defendant) before the High Court of Justice, Kaduna State sitting at Kaduna claiming the following reliefs:

“1. A declaration that the acts of the defendant through its agents in creating a thorough-fare in the plaintiff’s farmland situate at Fauta Village along Sabon Birni Kaduna without the permission/consent or authority of the plaintiff is unlawful and illegal.

2. A declaration that the said acts of the defendant in creating a thorough fare in the plaintiff’s farm land constitutes trespass and illegal encroachment on the plaintiff’s farm land.
3. An order of injunction in perpetuity restraining the defendants, its agents and privies from carrying out any act which constitutes trespass on the plaintiff’s farmland situate at Fauta village along Sabon Birni Road, Kaduna. (see page 2 of the record of proceedings).”

The writ of summons was filed on 9/8/01, along with a motion ex-parte seeking for an interim order of injunction restraining the defendant/appellants its servants, agents etc from further construction of road (thorough-fare) through the plaintiff/appellant’s farmland and from excavating sand/stone in the said farmland pending the determination of the substantive motion on notice for interlocutory injunction. Copy of the substantive motion on notice together with an affidavit of urgency was attached to the ex parte motion.

Upon its being served with the motion on notice for the interlocutory injunction, the defendant/appellant (hereinafter called the appellant), entered a conditional appearance through its learned counsel K. C. Ochu, Esq., and filed a counter-affidavit. The plaintiff/respondent (also hereinafter called the respondent), also filed a further and better affidavit. The learned trial Judge Dalhatu Jaafaru J., who heard the learned counsel for the parties only on the motion on notice for the interlocutory injunction, in a considered ruling dated 22/1/2002 granted the interlocutory orders sought by the respondent.

The appellant, being dissatisfied with the ruling of the learned trial Judge appealed against it in this court. Four grounds of appeal were filed by the appellant in his notice of appeal and in the appellant’s brief of arguments which was filed in this court and adopted at the hearing of the appeal, the following four issues are distilled as calling for determination:

“3. Issues For Determination:

…

3.1 Whether the learned trial Judge was right in granting an order of interlocutory injunction against the appellant even when the actual and precise area of land which the injunction is to operate is not certain.

3.2 Whether the learned trial Judge was right in granting an order of interlocutory injunction against the appellant even in the face of unchallenged and admitted affidavit evidence to the effect that the appellant’s piece of land is different from the respondent’s piece of land.

3.3 Whether the respondent established a strong prima facie case that he is entitled to the right, the violation of which he complain.

3.4 Whether the trial Judge was right in granting an injunctive relief against the appellant who is not a trespasser?.”

In the respondent’s brief which was deemed filed by this court on 6/6/02, only two issues for determination are formulated and they are as follows:

”3.1 Whether having regard to the state of affidavit evidence before the lower court, it can be rightly said that there is uncertainty as to the area of land in respect of which the respondent sought and was granted the order of interlocutory injunction by the lower court.