Adeyemi Works Construction (Nigeria) Limited V. Evangelist Isaac Omolehin (2003)
LawGlobal-Hub Lead Judgment Report
PATRICK IBE AMAIZU, J.C.A.
This is an appeal against the ruling of Ajayi, J. of the Kwara State High Court, sitting at the Ilorin Division of the court. The ruling was delivered on the 27th day of June, 2002. The appeal is sequel to a motion on notice praying the court for:-
“1. An order of injunction preventing the defendant/respondent from further trespassing on the plaintiff’s landed property and vacating his activities from the building of the applicant, situate and being at Nos. 17- 21 Ajasse Ipo Road, Ilorin and which is the subject matter of the present action before this honourable court pending the determination of the substantive suit.
2. An order of injunction restraining the defendant/respondent from tampering with, developing or altering the form of the subject matter of the present action pending the determination of the substantive suit.
3. And such order or further order/s as this honourable court may deem fit to make in the circumstance.”
Briefly, the facts which led to this appeal so far as they are material to the question which calls for our determination are, – the plaintiff in the substantive suit brought an action against the defendant.
In the said suit, he claimed damages and an order for perpetual injunction restraining the defendant, his agents, servants and privies from trespassing on its premises.
When the defendant was served with the writ of summons, he entered a conditional appearance. The court had to hear the motion for injunction and damages first.
The motion is supported by an affidavit of 22 paragraphs. I consider the following paragraphs relevant. They are:-
“2. That the plaintiff/applicant company is the bona fide and uncontroverted owner of the landed property and several buildings some of which have been erected over twenty years ago, lying and situate along Ajasse-Ipo Road, Ilorin and covered by a duly signed certificate of occupancy.
3. That none of the properties have (sic) been transferred/conveyed to the respondent.
4. That the respondent/defendant has trespassed into the landed property of the applicant company.
5. That the respondent has continued his trespass despite oral and written warnings to desist from such acts.
6. That the respondent without the prior knowledge or consent of the applicant demolished the fence to the applicant’s premises.
7. That the respondent has annexed a hall, one of our buildings which he now uses as children’s auditorium and inspite of repeated demands to vacate the building refused to do so etc.”
The defendant reacted to the above averments by filing an affidavit in opposition. The relevant averments in the said affidavit are:-
“3. That it is not true that I have unlawfully been in possession, occupation and use of an expanse of land measuring about 17 plots of land behind the plaintiff/applicant’s properties, but that the Word Commission International, a registered body with a Board of Trustees, had been let into and put in possession by the plaintiff’s Managing Director Rev. Segun Adeyemi, since 1997.
4. That I state as a fact that sometime in 1997, one Bayo Eniwaiye Esq., a barrister and solicitor approached me, that Rev. Segun Adeyemi wanted to dispose off some plots of land & the said Bayo Eniwaiye introduced Segun Adeyemi to me.
5. That other members of the Word Commission and myself were introduced to the land and the 1st installment of the sum of N200,000.00 (two hundred thousand Naira) was paid to Eniwaiye who was the counsel and agent of the plaintiff.
6. That it was agreed after series of negotiations on the land to be purchased, that the first 10 plots would be at the rate of N40,000.00 per plot, then the subsequent 4 plots at the rate of N50,000.00 each, while the additional 3 plots at the rate of N60,000.00 each.
7. That 2 (two) additional plots together with the development on them were also sold to the Commission by Rev. Adeyemi whom the commission paid to personally.
10. That misunderstanding began when Rev. Segun Adeyemi secretly and fraudulently sold three (3) plots out of the land already in occupation & possession of the Word Commission to one Mr. Adeboye.
………………
14. That Rev. Adeyemi became annoyed and irritated because we persisted that he should demarcate and formally convey to the Commission the whole land covering the total amount paid to him, rather, he became evasive, difficult to approach and many times impossible to approach and many times violent in language and conduct etc.”
The lower court heard argument of counsel on the motion. In a considered ruling, the learned trial Judge refused the application for an interlocutory injunction.
Part of the ruling reads: “… from the nature of this case and the facts deposed to, I am of the view that this court shall do substantial justice if an accelerated hearing is ordered in order to minimise the loss to be incurred by both sides.
I consider that this court has not convinced (sic) that an interlocutory injunction should be granted as prayed. An order for accelerated hearing is instead made. The case is adjourned to 5th July, 2002 for the hearing when it is believed that pleadings would have been concluded.
The plaintiff now the appellant was dissatisfied with the above ruling.
He has appealed to this court. In compliance with the rules of this court, the learned counsel for the parties filed on behalf of their clients briefs of argument. From the 11 grounds of appeal filed by the appellant, Eseyin Esq., of counsel distilled 3 issues for determination. The issues are:-
1. Whether the trial court was right in refusing the plaintiff’s application for interlocutory injunction because he did not disclose that he even took money from the defendant as the price of the property.
2. Having regard to the affidavit evidence before the court, whether the trial court properly exercised its discretion in refusing the plaintiff’s application for interlocutory injunction.
3. Whether the failure of the applicant to give an undertaking for damages warrants a refusal of an application for interlocutory injunction.
The respondent in his brief of argument identified one issue for determination. It is:-
“Whether having regard to the circumstances of this case and the affidavit evidence, the learned trial Judge exercised his discretion judiciously and judicially by refusing the appellant’s application for injunction.”
Otaru Esq., of counsel also gave notice of a preliminary objection.
“Take notice that the respondent herein named intends, at the hearing of this appeal, to rely upon the following preliminary objection, notice whereof is hereby given to you viz:-
“1. That the grounds of appeal numbers 1,2,3,4 & 8 contained in the notice & grounds of appeal dated 9th day of July, 2002 are incompetent on the premise that a court cannot err in law & at the same time misdirect itself.
2. That the particulars of the aforesaid grounds of appeal are narrative, argumentative & verbose as same offends against the provisions of Order 3 rule 2(3) of the Court of Appeal Rules, 2002 (as amended).”
It is to be mentioned that the appellant in his brief of argument abandoned grounds 5, 6, 7, 9,10 &11. I observe that the appellant did not react to the above preliminary objection.
It is now accepted that if a preliminary objection is raised on an appeal, such an objection must be resolved before the hearing of the substantive suit. See All States Trust Bank Ltd. v. King Davidson Enterprises (Nig.) Ltd. (2000) 12 NWLR (Pt. 681) 298; (2000) FWLR (Pt. 29) 261.
I now consider the objection.
It is the submission of Otaru Esq., of counsel that grounds 1, 2, 3,4, & 8 of the grounds of appeal are incompetent. Each of the five grounds shorn of their particulars, is couched thus:-
“The learned trial Judge erred in law & misdirected himself …”
The learned counsel, referred to the provisions of Order 3 Rule 2(2) of the Court of Appeal Rules 2002, which read:-
“If the grounds of appeal allege misdirection or error in law, the particulars & the nature of misdirection or error in law shall be clearly stated.”
He submitted that a ground of appeal cannot be both an error in law and a misdirection at the same time. The learned counsel referred to the observation of Nnameka-Agu, JSC (as he then was) in the case of Nwadike & Ors. v. Ibekwe & Ors. (1987) 11- 12 SCNJ 72 at 99, also (1987) 4 NWLR (Pt. 67) 718. He referred to other cases to wit- Onyali v. Okpala (2001) 1 NWLR (Pt. 694) 282; (2000) FWLR (Pt.3) 495; A.S.T. Bank Ltd. v. K.D. Ent. (Nig.) Ltd. (2000) 12 NWLR (Pt. 681) 298; (2000) FWLR (Pt. 29) 261.
The learned counsel observed that the particulars of all the five grounds are argumentative and narrative. He referred to the case of Mohammed v. Nwogboelo (2000) FWLR (Pt. 15) 2546 at 2560, where this court per Magaji, JCA, held that if a ground of appeal is argumentative or narrative, it is rendered incompetent. He referred also to other cases:- Soetan v. Ogunwo (1975) 6 SC 67; Ekpe v. Fagbemi (1978) All NLR 107; Gamboruma v. Borno (1997) 3 NWLR (Pt. 495) 530. He urged the court to strike the grounds out.
As has been mentioned, the appellant abandoned grounds 5, 6, 7,9, 10 & 11.
The grounds left are ground 1, 2, 3, 4 & 8. The issues for consideration in this appeal are distilled from those remaining grounds of appeal.
Our courts have decided in a number of cases that a ground of appeal cannot be an error in law and a misdirection at the same time. An error in law occurs when there is a mistake of law. (Black’s Law Dictionary, Seventh Edition). On the other hand, a misdirection occurs where a trial Judge misconceives the issue whether of facts or law or summarizes the evidence inadequately or incorrectly. Ambrose Akuchie v. Maria Nwamadi (1992) 8 NWLR (Pt. 258) 214.
From the above exposition, a ground of appeal cannot be an error in law and a misdirection at the same time. The five grounds are therefore incompetent.
Where an issue for determination is distilled from incompetent grounds of appeal such an issue cannot be validly employed to examine the grounds of appeal in order to determine whether the judgment appealed against is wrong or right. Nicolas Ononiwu v. Road Construction Co. Ltd. (1995) 7 NWLR (Pt. 406) 214. This is the general rule and practice of our court.
In the case of Alhaji Salami O. Aderounmu & Ors. v. Emmanuel Olajide Olowu (2000) 4 NWLR (Pt. 652) 253, the apex court however stated that as the primary aim of the rules of appellate procedure is that an appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal; and, that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal. Any ground of appeal that satisfies that purpose should not be struck out notwithstanding that it does not conform to a particular form. What is important in a ground of appeal, and the test the court should apply, is whether or not an impugned ground shows already what is complained of as an error in law and what is complained of as misdirection or as the case may be, error of fact.
In the light of this decision, I have to consider the lone issue formulated by Otaru Esq., of counsel.
Arguing the issue, Eseyin Esq., of counsel submitted that the lower court was in error in refusing to grant the appellant’s application based on the ground that the respondent paid him money for part of the land in dispute. He reminded the court that the claim of the appellant is that the respondent illegally entered the land in dispute.
It is his view that whether the respondent purchased part of the land in dispute or not should be considered at the hearing of the main suit. This, in his view, is because, a court when considering an application for an interim injunction should not delve into issue which should be considered at the trial. He relied on:- Sylvanus Emeka Madubuike & Ors. v. Romanus Elochukwu Madubuike & Ors. (2001) 9 NWLR (Pt. 719) 689; (2002) FWLR (Pt. 30) 2611; Abu v. Alele Williams (1992) 5 NWLR (Pt. 241) 340; Saraki v. Kotoye (1990) 4 NWLR (Pt. 143) 144; Falomo v. Banigbe (1998) 6 SCNJ 42; (1998) 7 NWLR (Pt. 559) 679.
The learned counsel referred to the ruling of the lower court that the balance of convenience tilts in favour of the respondent. It is his view that the ruling does not flow from the affidavit evidence before the court. The learned counsel then referred to a number of issues that should be considered by a court before an interlocutory injunction may be granted or not. He cited the following cases:-
Ladunni v. Kukoyi (1972) 3 SC 31; Globe Fishing Industries v. Coker (1990) 7 NWLR (Pt. 162) 265; Madubuike v. Madubuike (2001) 9 NWLR (Pt. 719) 689; (2000) FWLR (Pt. 30) 261.
It is the learned counsel’s view that the affidavit evidence of the appellant meets the conditions for granting this application. It is further in his view that the appellant has a legal right which has to be protected. He cited the case of Falomo v. Banigbe supra. The learned counsel reminded the court that the appellant owns the property in dispute. In his view, the property should be preserved.
The learned counsel conceded that an undertaking to damages in an application for an interlocutory injunction is important. It is his view that if an undertaking is not given, it is not a sufficient reason to refuse the prayer for an interlocutory injunction. He urged the court to resolve the issue in favour of the appellant and allow the appeal.
In his reply, Otaru Esq., of counsel referred to the motion filed by the appellant. He observed that the appellant did not state therein that he was applying for an interlocutory injunction. He submitted that the appellant is bound by his prayer in the motion. He cited Okoya v. Santilli (1990) 2 NWLR (Pt. 131) 172. It is the learned counsel’s view, that the learned trial Judge exercised his discretion judicially and judiciously in refusing the application of the appellant for an interlocutory injunction. He observed that such an application is not granted as a matter of course. It is granted based on the facts disclosed in the affidavits of the parties.
The learned counsel reminded the court that he who comes to equity must come with clean hands. The appellant, the learned counsel observed, did not disclose in his affidavit in support of his motion that the respondent paid for the land he was occupying. And, that the respondent was let into the land by the appellant in 1997.
The learned counsel reminded the court that the averments of the respondent were not controverted by the appellant. He submitted that the lower court faced with the facts that:-
1. the respondent paid for 17 plots;
2. the appellant sold 3 of the plots already paid by the respondent to a third party;
3. appellant refused to clearly demarcate the portion of the land he sold to the respondent.
The lower court was right in refusing the application. He urged the court to decide the issue in his favour and dismiss the appeal.
In the case of Hubbard v. Vosper (1972) 2 QB 84 at 96, Lord Denning said that in considering when to grant an application for an injunction, the right course for a Judge is to look at the whole case.
The Judge must have regard not only to the strength of the claim, but also to the strength of the defence and then decide on what is best to be done. Sometimes, it is best to grant an injunction so as to maintain the status quo until trial. At other times, it is best not to impose a restraint on the defendant. The remedy for an interlocutory injunction is so useful and it should be kept flexible and discretionary.
It must not be made the subject of strict rules.
With the above in mind, I consider the submission of the learned counsel.
An injunction is an equitable remedy. It follows that he who seeks the relief must come with clean hands.
In the case of Bertrand Nnonye v. Chief N. Anyichie & Ors. (1989) 2 NWLR (Pt. 101) 110, it was held that when an affidavit is served on a party to a proceeding, and the averments in the said affidavit are not controverted by the party, the affidavit is deemed to be admitted as true.
This raises the question, why did the appellant not aver that the respondent has paid for some of the plots in the area in dispute?
This is an important fact that would help the court come to the decision whether to grant the application or not. The fact was purposely suppressed to mislead the court. On that alone, the application should be dismissed.
It is now accepted that in considering whether to keep matters in status quo until trial, regard must be had to the right of the parties and the balance of convenience and the extent to which any damage to the applicant could be cured by payment of damages rather than by grant of an injunction.
In paragraph 7 of the affidavit in support of the application for an injunction the appellant averred:-
“That the respondent has annexed a hall, one of our buildings which he now uses as children’s auditorium & inspite of repeated demands to vacate the building refused to do so.”
There is nothing in the affidavit to show that if the appellant eventually wins the substantive suit he cannot be adequately compensated in damages for the use of the hall. Further there is nothing to show that the appellant wants to put the building in any immediate use. In that case, as the respondent is running a church, the balance of convenience tilts in his favour.
The generally accepted principle of law is that, except in recognised cases, in an application for an interlocutory injunction a beneficiary of such an order must provide an undertaking in damages.
The applicant is usually required to give an undertaking to pay all damages caused to the opposing party if the order so granted ought not to have been made.
A trial court has the discretion, depending on the nature of the case, on the question whether or not to order an undertaking as to damages. The discretion however must be exercised judicially and judiciously.
If the applicant, as in this case, failed to give an undertaking, the trial Judge has the right to refuse granting the injunction.
The above notwithstanding, it is my view that the learned trial Judge was fair to the parties when he granted an accelerated hearing of the substantive suit. It is further my view that having considered the whole case having regard to the affidavit in opposition, the lower court did what is best to be done in the circumstances by refusing to grant the application and instead granting an accelerated hearing. In conclusion, the appeal is dismissed as having no merit. The respondent is entitled to cost which I assess at N5,000.00.
Other Citations: (2003)LCN/1426(CA)