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:

“5. That on Saturday (a non-working day) the 19th day of July, 1986 at about 6.30 p. m. and less than 48 hours before the date fixed for the hearing of the Motion, I saw armed Policemen and workers of Ikeja Local Government led by the Divisional Police Officer, Isokoko Police Station who began to demolish the reconstructed concrete wall fence, the subject-matter of this action, on a large scale, and on Sunday, the 20th day of July, 1986, the workers came back to remove the debris of the demolished concrete wall fence.

6. That on inquiry from the Divisional Police Officer, he told me and I verily believe him that the 1st Respondent sent a directive to the Sole Administrator of Ikeja Local Government, Mr. S. F. Odulana, to get his boys to effect the demolition and he the D.P.O. should get his boys to protect the Local Government Workers in case of any attack while the demolition was in progress.
7. That the 1st Respondent ordered his agents and servants through the Sole Administrator of Ikeja Local Government to effect the demolition for the second time while he was in receipt of the Motion papers and during the pendency of these proceedings.
8. That I would suffer irreparable damage if the motion is allowed to be in the cooler till 8th of September, 1986.
9. That the 1st Respondent is using every available machinery of Government at his disposal through its numerous officers, servants and agents to victimise me and my company.
10. That I verily believe that the action of the 1st Respondent is an affront to this Honourable Court and. an unnecessary show of power.
11. That in the interest of justice, I verily believe that this motion be taken during the vacation.”

A counter-affidavit of 28 paragraphs against the affidavit of the motion of 28/7/86 was sworn by one Anthony Alegbe, the Secretary to the Task Force of the Lagos State Waste Disposal Board. In it he disclosed that as a result of heavy down pour in May, 1986 which rendered most parts of Lagos State flooded, officials of the Board carried out inspection and found that Mulero Street was heavily flooded and that occupants of about 15 houses had already packed their belongings outside with a view to finding alternative accommodations.

The officials were of the view that the only way the Mulero Street could be deflooded was to construct a drainage through the plaintiffs land “which had hitherto been the major cause of the floodings.” The Board directed that the area be deflooded and notice was accordingly served on the plaintiffs before the demolition. A copy of the notice was pasted on the premises while another, Exhibit B, was signed for by an official of the plaintiffs. The deponent drew attention to series of petitions from the inhabitants of the area to various government agencies over their plights as regards the overflooding of the area. Copies of the petitions, Exhibits A – A7, were attached to the counter-affidavit.

The wall fence was demolished by the Board by virtue of the Environmental Sanitation Edict 1985 in order to create a necessary passage for the drainage of the flood. Paragraphs 16-19 and 22-26 of the counter-affidavit read:

“16. That the Plaintiffs/Applicants’ wall fence was serving as a dam for rain water flowing along Mulero Street, thereby resulting into the flooding of the area.

17. That in addition to this, abandoned trailer bodies littered the Plaintiffs/Applicants land with over grown weeds.
18. That the demolition became very necessary in order to relieve the inhabitants of Mulero areas of the problem of flood.
19. That the defendants/respondents did not destroy any trailer or body of trailer of the Plaintiffs/Respondents.
20. That it is not true that the 1st Defendant/Respondent instructed anybody to demolish the Plaintiffs’ fence on the 19th July, 1986 or at any other time.
21. That the Plaintiff/Applicant has not obtained the necessary permit from the authorities to keep rams in his compound.
22. That the plaintiffs’/Applicants’ premises is not a licenced warehouse.
23. That the drain so far made through the Plaintiffs’ land is rather inadequate and it is necessary to do a proper drain to direct the rainwater in the affected area to the drainage system in the area URGENTLY if the Plaintiffs’ land and other areas are not to suffer from heavy flooding from rainfall which is imminent.
24. That the above will be beneficial to all the inhabitants of the area including the Plaintiffs’ who will now be free from the perennial problem of flooding.”

By a motion dated 4/8/86, the defendants prayed the court for an order (a) that the court be moved to the locus in quo to see the condition of Mulero Street and what the plaintiffs had on the site and (b) that a proper drainage be constructed urgently on the plaintiffs land to direct rain water in the area into the drainage system of the area. The application was supported by an affidavit of 15 paragraphs sworn by Anthony Alegbe. In it he deposed that the drainage so far made was not adequate to prevent the whole area from being flooded and that the people in the area could suffer untold hardship from flooding with loss of life and property if the wall fence was allowed to be rebuilt. He also claimed that he called at the site immediately he left the court on 4/8/86 and found that there was no single trailer with goods and rams within the plaintiffs’ premises as claimed by him in his affidavit.

I will like to point out at this stage that on the application of the plaintiffs, this court ordered on 8/10/86 a departure from the Rules and ordered accordingly that papers filed by the plaintiffs would be the record of appeal. It was also ordered that defendants do file papers of the proceedings in the lower Court if they so desired. The defendants then subsequently filed the Record of Proceedings marked Exhibit A. In effect there are two Records of Appeal in respect of this appeal. The note of the visit to the locus in quo which was read in court when it reconvened and the arguments of counsel in respect of the motion of the plaintiffs which are not contained in the record filed by the plaintiffs are all included in the record prepared by the defendants.

In her ruling relating to the motion of the plaintiffs, the subject-matter of this appeal, the learned trial Judge noted that it was not in dispute that the plaintiffs’ wall fence was broken by the agents of the defendants and also that it was not in dispute that “the concrete fence had and was causing floods in the area concerned.” She then referred to Section 24 of the Environmental Sanitation Edict 1985 which provides:

“The Board may

(a) Demolish or remove without payment of compensation any construction or structure on the footpath or on the required set back from the road, or, which is so placed as to cause an impediment to the clearing, cleaning, construction, inspection, or continuous flow of a drain or drainage system or any part thereof; or

(b) Construct any building or structure which may be deemed necessary for the clearing, cleaning or inspection of a drain or drainage system or any part thereof.”

The learned trial Judge said it was “crystal clear that the erection and the existence of the fence by the plaintiffs on the main road as it was before it was demolished was the root cause of the flooding of the houses in the area and the neighborhood. As seen at the locus, it has caused untold hardship to many members of the community of that area.” She was of the view that the plaintiffs had not made out a prima facie case for an interlocutory injunction, and that if it was granted, the entire area “would be at greater risk of flood which is still very much around and the public would be exposed to obvious danger.” She said she was unable to hold that the plaintiffs would suffer irreparable damage if the application was refused. The learned trial Judge added that an interlocutory injunction was not a remedy for an act which had already been carried out. She accordingly refused the application in its entirety and made no order as to costs.

Dissatisfied with the ruling, the plaintiffs filed their notice and seven grounds of appeal. The second ground was struck out by this court on 26/2/87. The remaining six grounds read:

“(i) The learned trial Judge erred in law and on the facts in holding that the plaintiffs have not made out a prima facie case.

Particulars of Error

(a) There is no evidence that the concrete wall fence was erected by the plaintiffs after the road had been in existence.

(b) There is no evidence before the Court that the concrete wall fence was constructed by the plaintiffs in order to create flood for the inhabitants of the area.

(c) There is nothing to show that the learned trial Judge dispassionately considered the affidavit evidence before her but clearly brought her knowledge of the locus in quo in the application of the law.

(iii) The learned trial Judge erred in law in holding that the plaintiffs have failed to satisfy the Court that the balance of convenience is in their favour when there was unchallenged affidavit evidence that the balance of convenience favours the grant.

(iv) The learned trial Judge erred in law and on the facts when she held that the respondents’ agents have commenced construction of drains and channels before the application for interim injunction was filed.

PARTICULARS OF ERROR

(a) It was not open for the learned trial Judge to speculate on evidence which was not before her.

(b) There was no evidence at all that the respondents have started to construct drainage before the application was filed.

(v) The learned trial Judge overlooked the relief sought in the body of the motion papers when she held that an interlocutory injunction is no more a remedy for an act which had already been carried out.

(vi) The learned trial Judge erred in law in the application of Section 24 of the Environmental Sanitation Edict of 1985 when it has not been established and there was no finding of fact that the required notice was served on the plaintiffs before the demolition of the plaintiffs’ wall fence was effected.

(vii) The learned trial Judge erred in law and on the facts in failing to hold that the respondents’ second demolition exercise was contemptuous of the court having regard to the fact that each of the respondents was served with the motion papers (and which was never denied) before the second demolition took place.”

The issues arising for determination as formulated by learned counsel for the appellants which learned counsel for the respondents appears to agree with read:

“1. Whether the learned trial Judge correctly applied the settled principles of law governing the grant or refusal of an order of interlocutory injunction.

2. Whether the learned trial Judge could at this interlocutory stage consider the application of the provisions of the Environmental Sanitation Edict of 1985 when there has been no findings of facts of the service of the required statutory Notices on the appellants before a demolition exercise could be effected.
3. Whether the learned trial Judge, on the unassailable facts before her should not have held that the 1st and 2nd Respondents were contemptuous of the Court in so far as the second demolition exercise was concerned.”

In her ruling, the learned trial Judge stated that it was not in dispute that the first appellant “is the owner of the property situated at Mulero Village, Ikeja as per the copy of the purchase receipt Exhibited.” She also made the point that “the plaintiffs are in possession and claimed to have approved plan dating back to 1975 when the land was a forest.”

In an application for an interlocutory injunction, it is not even necessary for the applicant to prove a proprietary interest in the property to be protected by the injunction; all that is necessary to prove is lawful occupation. (See Ojukwu v. Governor of Lagos State, (1986) 3 N.W.L.R. (Part 26) 39.)

In Obeya Memorial Specialist Hospital v. Attorney-General of the Federation and Anor. (1987) 3 N.W.L.R. (Part 60) 325 at page 349, Kazeem, J.S.C. firmly expressed the position of the law when he said:

“A Nigerian citizen and indeed any Nigerian Company as a corporate body in lawful possession of the properties are entitled to protection of those properties under our Constitution, and until they are proved not to be entitled, the courts as guardians of the Rule of Law will frown at any unlawful invasion of such properties by anyone no matter how highly placed.”

Mr. Okunuga, learned counsel for the appellants, contended that with the finding of the learned trial Judge that the first appellant is the owner of the property, she ought to have held that the appellants had shown a prima facie case or substantial issue to be tried at the hearing “to warrant an interim stay of the demolition exercise in the absence of any evidence from the respondents as to when the inhabitants of Mulero Village conceived an idea to construct a road across the appellants’ premises.”

In my view, this case is a classical example where appellants and their counsel completely misconstrued the issue involved in their application before the trial Judge. The issue in essence was not whether the first appellant was the owner of the property in question or whether he had the approval of the relevant authority to construct the concrete wall fence as he deposed to in his affidavit, but whether the concrete wall fence constructed by him, within or outside the confines of his landed property, contributed to or was wholly the cause of the flood which was rendering a number of the inhabitants of that village homeless.

I have studied very closely, the entire affidavit in support of the application for an interlocutory injunction and I have not found the slightest denial that there was in fact a deluge caused by torrential rain fall and that the only way to deflood the area was to demolish a portion of the concrete wall fence which served as a dam resulting in the flooding of the area.

There are several aspects of the case into which one is tempted to delve. But in a case of this nature where the substantive action has not been heard and determined, one is to be circumspect in pin-pointing the loose ends in the case of one of the parties.

The point must however be made that the act of an owner of a premises though lawful may amount to a nuisance.

It appears to me that the first appellant indulged himself in the belief that since he had done nothing unlawful by erecting a concrete wall fence within the confines of his premises, if indeed it was within his premises, no one, including the Government, has any legal right to demolish it.

For instance, a private nuisance may be and is usually caused by a person doing on his land something which he is lawfully entitled to do.

His conduct only becomes a nuisance when the consequences of his acts are not confined to his own land but extends to the land of his neighbour by (1) causing encroachment on his neighbour’s land, when it closely resembles trespass, (2) causing physical damage to his neighbour’s land or buildings, or (3) unduly interferring with his neighbour in comfort and convenient enjoyment of his land (See Clerk and Lindsell on Torts, 14th Edition, Article 1393, page 804).

Negligence is not an element in determining liability.

As stated by Aniagolu, J.S.C. in Umeobi v. Otukoya (1978) 4 SC 33 at pages 41-42, “circumstances may exist in which a person may rightly take extra-judicial remedial action and yet be acting within the bounds of the law. A person who has taken action to abate a nuisance may act lawfully even though his action is extra-judicial.” Whether or not the Government or any person affected by the nuisance may remove the cause of the nuisance without paying damages to the owner of the premises for the consequential damages to him, if any, arising from the removal of the cause of the nuisance, particularly if he was given permission to do what he did, appears to be the subject-matter of the substantive action in this case

The fact therefore that, the first appellant is the owner of the property is not relevant to the grant or refusal of an interlocutory injunction in a matter of this nature. What should be upper most in the mind of the court is the disastrous consequences that may be attendant to the grant or refusal. In my view, from the affidavit evidence before the learned trial Judge, it was clear that it was the wall fence erected by the appellants that caused the flood in the area. Apart from the affidavit evidence, a visit to the locus in quo confirmed the averments in the counter-affidavit of the respondents.

It is necessary to reproduce in extenso the notes taken by the learned trial Judge at the scene, with the parties and their counsel present.

“At the scene it was observed that the wall fence in dispute was constructed right in the middle of the road i.e. Mulero Street which prevented the flow of water as could be seen by the situation of things. Both Counsels agreed with me on this point as could be seen by all parties present.

On the same street, I was shown many of the houses already destroyed by flood and abandoned by the owners and the inhabitants, while many have been demolished to give way to the drainage. The drainage has in fact been commenced at different locations.

The intended Channels and their attributes were shown to me by Mr. Alegbe who is the defendants’ representative. The imminent danger posed to the occupier of the area by the demolished concrete wall of the plaintiff was also emphasised and that the construction of the drainage is urgently required. It is my conclusion and that of both counsel in this matter that the position of the concrete wall fence of the plaintiff constituted a great barrier impeding the flow of water in the area.

Both counsel agreed that my visit would assist, the court in appreciating the issues involved. Mr. Okunuga for the Plaintiffs/respondents and Mr. Oduneye for the defendants/Applicants both agreed to the report as read by the Court. Plaintiff present in Court. Defendants’ representative also present in Court.”

There is no doubt that the object of interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. (See Obeya Memorial Specialist Hospital v. Attorney-General of the Federation (Supra). That the appellants in this case can be adequately compensated in damages if the substantive case terminates in their favour is not in doubt. Indeed if an entire massive building in an area is the cause of flooding in that vicinity, and not just a wall fence, the Government or the Local Council, in extreme cases, may be well advised in the interest of the public, to compulsorily acquire the building and demolish it and pay adequate compensation.

One of the cardinal principles of the law governing the grant or refusal of an order of interlocutory injunction is that the plaintiffs need for protection by way of interlocutory injunction must be weighed against the corresponding need of the defendant to be protected against injury that he may suffer should the application for interlocutory injunction be granted. The principle should be applied to the facts of each case. Obviously, from the facts of the present case, the injury the inhabitants of the area, on whose behalf the respondents or the Local Council have acted, would have suffered if the injunction had been granted would far out-weigh the injury, if any, the appellants have suffered by the refusal of their application. I find the argument of learned Counsel for the appellants that the respondents were not protecting the interest of members of Mulero community rather odd and unimpressive.

There is also Section 24 of the Environmental Sanitation Edict of 1985 which the learned trial Judge cited in her judgment. Learned Counsel for the appellants argued that in the absence of a clear finding by the trial Court, that statutory notice required under the Edict were duly served on the appellants, it was wrong for her to rely on the Edict in refusing the application. At paragraph 12 of the counter-affidavit filed by the respondents, it was averred that the copy of the notice was pasted on the land and another copy, Exhibit B, was signed for by an official of the appellants. Instead of the appellants filing a further affidavit in reply to the counter-affidavit to deny these facts, if they were not correct, they were satisfied and rested their application on the fact that they were the rightful owners of the premises and had the right to erect the concrete wall fence, whether or not erecting it was to the detriment of the community at large. Since the appellants had by implication admitted that statutory notices were duly served, they cannot be heard to complain that the learned trial Judge based her decision on the fact of the service of the notices on the appellants.

Ground 7 is to the effect that the learned trial Judge was wrong in not regarding “respondents’ second demolition exercise” as contemptuous of the court since the respondents were served with the motion papers before the said second demolition exercise. Admittedly, any action or conduct of one of the parties to an action in court, whilst an application for a stay of execution or an interlocutory injunction is pending in court, for the subtle purpose of stultifying the exercise of the court’s discretion and its duty to consider the said party’s application on its merits, must not be countenanced by the court. (See Vaswani Trading Company v. Savalakh & Company (1972) 12 S.C. 77 at pages 87-88).The court should normally not allow either of the parties to present it with a fait accompli. In effect it is the duty of the courts to see that their orders are not rendered nugatory.

When the conduct of one of the parties has the tendency of foisting on the court a fait accompli, the court may make an order which will have the effect of returning the parties to the original status quo pending the determination of the application. (See Vaswani Trading Company (supra) page 83).

However, it seems to me that the party whose action or conduct tends to render a future order of the court nugatory cannot be punished for contempt because he has not breached any order of the court.

It must also be stressed that if the appellants in this case thought that they were on firm ground in their allegation that the action of the respondents amounted to contempt, they ought to have initiated contempt proceedings. As this court (Kaduna Division) observed in the case of Vice Chancellor, Ahmadu Bello University & Ors. v. Yau Ado & Anor. (1986) 3 N.W.L.R. (Part 31) 684 at page 695, “there is a distinction between a criminal contempt in respect of which a trial court may on its own motion issue a bench warrant for the arrest of a contemnor and a civil contempt where the powers does not exist. In a civil matter, the initiative rests with the party for whose benefit an order was made.”

Each case must however be considered on its merits. Assuming for a moment that the conduct of the respondents in this case was to forestall a decision in favour of the appellants, to the peculiar circumstances of this case, it could have been the height of judicial indiscretion for the learned trial Judge to have ordered that the wall fence be re-erected, an order which would result in the flooding of the area. More importantly, it is instructive to note that the appellants abandoned their application filed on 11/7/86 and filed another on 28/7/86. The alleged act of the respondents demolishing the wall fence the second time took place on 19/7/86, that is before the fresh application was filed on 28/7/86. It cannot therefore be seriously contested that the respondents acted to render nugatory the result of an application which had not been filed and therefore not pending before the court.

Learned Counsel for the appellants criticised the learned trial Judge in respect of that portion of her ruling where she said, “an interlocutory injunction is not merely a remedy for an act which had already been carried out”, relying on John Holt Nigeria Ltd. v. Holts and Company Liverpool & Anor. (1963) 1 ALL N.L.R. 379 at 384. Learned Counsel submitted that the trial Judge overlooked the fact that the application was for an” “interim injunction” against the respondents restraining them in particular from carrying out further demolition of the concrete wall fence erected or that may be erected on the land.” Learned Counsel also referred to paragraph 23 of the affidavit in support of the appellants’ application to show that the demolished concrete fence had been rebuilt.

The true position is that going by the affidavit of urgency filed by the appellants, the rebuilt wall fence had also been pulled down. As at the time the learned trial Judge paid a visit to the locus in quo, the wall had been demolished. The learned trial Judge was therefore right to apply the principle enunciated in John Holts (Nigeria) Ltd.’s case. What is more, it is apparent from the ruling of the learned trial Judge that she did not base her decision solely on this principle. She considered all aspects of the application and finally concluded thus: “After carefully considering the facts deposed to in the affidavits and counter-affidavit filed by the parties, I am of the opinion that a good cause has not been shown to justify the granting of interlocutory injunction. The plaintiffs’ application is refused in its entirety.”

It is necessary for me to stress once more, at the risk of undue repetition, that if it had been the contention of the appellants before the learned trial Judge that the wall fence in no way contributed to the flooding of the area, their application for an injunction would have been meaningful. In that case, an interlocutory injunction would be granted pending the determination of the issue whether or not the wall fence was the cause of or contributed to the flooding of that area.

In my view, the appeal has no merit whatsoever. It is dismissed with costs assessed at N300.00 in favour of the respondents.

There is no doubt that the learned trial Judge gave the parties a fair hearing and correctly applied her judicial mind to all the issues involved in the application in arriving at her decision. I have not the slightest doubt that she would be able to handle the substantive case with equal judicial candour and do justice. However, in view of the complaints of bias in the appellants ground 2 which could not be substantiated and was struck-out, prudence demands that the substantive case be heard and determined by another Judge of the High Court of Lagos State, Ikeja Division so that Justice must be seen to have been done. It is accordingly so ordered.

Other Citations: (1998)LCN/0449(CA)