Afro-continental Nigeria Ltd. V. Joseph Ayantuyi & Ors (1995)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

The plaintiffs by a Writ of Summons commenced an action against the defendants in Ondo State High Court holden at Ondo seeking for vurious declaratory reliefs and an order of perpetual injunction to restrain all officers, servants, agents and functionaries of the defendants from trespassing on or unlawfully taking possession of the “‘aforesaid land.”

The plaintiffs thereafter filed a Motion on Notice praying the court for an order of interim injunction restraining the defendants from ejecting the plaintiffs from the land or disturbing them thereon and generally to maintain the status quo ante pending the determination of the substantive suit. The motion was supported by a 32 paragraph affidavit. The defendants opposed the motion for injunction and filed a 13 paragraph Counter-Affidavit, Para. 6 of the Counter-Affidavit which was sworn to by one Toluwa Olopete read thus –

“‘6. That when the Rubber Board Company wound up, the assets disposal committee of the Commodity Boards assigned the unexpired term of its interest in the land now the subject matter of this present action to a company Afro-Continental (Nigeria) Limited in which the On do State Government has 35% shares.”

But despite the revelation above of the presence of Afro-Continental (Nigeria) Limited on the land in dispute, the Company was not made a defendant in the action. The motion was finally argued. The learned trial Judge in a reserved ruling granted the injunction sought by the plaintiffs.

Shortly thereafter a copy of the court’s order was served on Afro-Continental (Nigeria) Limited which though not a party to the case has an interest in the land as shown in para. 6 of the Counter-Affidavit cited above. On thus becoming aware of the Suit in Ondo High Court, the company. Afro-Continental (Nigeria) Limited, applied to the Court of Appeal for leave to appeal as a party interested and also to be joined as a co-defendant. Both applications were granted. The company will henceforth be referred to as applicant/appellant.

The appellant filed a short brief in the Court of Appeal wherein the single issue for determination was stated thus –

“Whether the learned trial Judge was right in granting the order for interlocutory injunction wit/wilt extracting an undertaking as to damages from the plaintiffs.”

Meanwhile the plaintiffs, now respondents, also filed a respondent Notice of Intention to vary the Order of Injunction granted by the Ondo High Court. The respondent while accepting the issue for determination framed by the appellant, in line with their respondents’ Notice added a second issue for determination –

“(2) Whether or not this Honourable Court will in the circumstances of this case order the plaintiffs to give the undertaking raised in the respondents’ Notice within a specified period and order that the lower court’s order of injunction should continue.”

The respondents’ Notice had stated in ground 7 of the grounds relied upon as follows –

“7. The plaintiffs/respondents do hereby undertake to indemnify the Party Interested/appellants and the defendants/respondents against all losses, pecuniary or material that may arise from the lower courts order of interlocutory injunction of that day if they lose the substantive suit still pending in the said lower court or which the lower court may find to have been wrongly granted in the first place.”

The Court of Appeal carefully considered the submissions of counsel and Uche Omo. J.C.A. (as he then was) concluded his leading judgment (with which Ejiwunmi and Edozie U.C.A. agreed) in these words-

“I have therefore come to the conclusion that whilst the learned trial Judge erred in failing to extract an undertaking as to damages when he made his order of injunction, this Court can obtain such an undertaking from the plaintiffs/respondents through their counsel, and allow the injunction ordered by the trial Judge to continue. It is therefore hereby ordered specifically that counsel for the plaintiffs/respondents gives to the Registrar of this Court a signed undertaking as offered by him in his Notice of Intention to Vary the judgment filed by him. The order of injunction made by Dr. O.O. Aguda J. on 17/7/89 in this matter subsists. In effect the appeal partly succeeds and the application to Vary; the judgment also succeeds.