Alhaji Chief Abdul Mojid Agbaje V. Ibru Sea Food Limited (1972)

LawGlobal-Hub Lead Judgment Report

A. ADEMOLA, C.J.N. Prepared the Leading Judgment and Delivered by I. Lewis, J.S.C.

The appellant in this matter has appealed against the dismissal by the Western State Court of Appeal of his appeal from the decision of the High Court of Ibadan which refused his application for an order for an interlocutory injunction.

The appellant was the plaintiff in an action in the High Court of Ibadan, and in his amended Writ of Summons, claimed “the sum of 1000 being damages from continuing nuisance to the plaintiff’s house situate at Chief Agbaje’s compound, Ayeye, Ibadan, NW1/333 and to the plaintiff and his household’s enjoyment of the said house caused by smell, heat, noise and vibrations from the refrigerating plant installed and operated by the defendant, his servants and agents in the shop on the ground floor of the plaintiff’s said house and from the fish market established and carried on by the defendant its servants and agents inside the said shop and in front of the said shop since the 1st day of August, 1969, which nuisance the defendants have failed to abate despite repeated requests.” The plaintiff also seeks an injunction to restrain the defendant from continuing the said nuisance.

At the same time, the plaintiff filed a motion for an order for an interim injunction to restrain the defendants or his agents from continuing the said nuisance until the action was heard. The motion was heard in the High Court of Ibadan and it was refused.

The plaintiff/appellant appealed to the Western State Court of Appeal which dismissed his appeal. He has now appealed to this court against the order of the dismissal.

The appellant claimed to be the owner and occupier of the building where the refrigerating plant was set up. At first he stated that the defendants/respondents unlawfully took possession of the shop where the plant was erected, but later stated that his sister, Jadesola Agbaje, on an agreement between her and the respondents gave possession of the shop to the respondents, and whilst in possession the respondents committed unlawful acts which according to paragraphs 4 to 8 of the affidavit filed by the appellant, are as follows:

“4. That while in possession of the said shop, the defendants and its agents by the 10th day of August, 1969, installed a huge refrigerator in it and permitted its servants and/or customers to establish a fish market inside the said shop and in front of the said storey house.

5. That the defendant by its servants and or agents has since been operating the said refrigerator daily continuously during the day and night.
6. That the said refrigerator continuously produces a lot of heat and also makes continuous noise and sound which vibrates and can be heard and felt all over the said house.
7. That the servants, agents and customers of the defendant while marketing the defendants’s goods in front of the said house make terrible noise and litter the premises with refuse to the annoyance and disturbance of myself, my family and other persons, occupying, with my permission, the adjoining shop in the said premises,
8. That the defendants’ servants, agents and customers start the fish market from about 7.a.m every morning and lasts till 11.a.m. While the market is in progress pungent and unpleasant fish odour can be smelt all over the place.”

These briefly represent the reasons for which the interim injunction was sought.

The Western State Court of Appeal, after setting out the facts in its judgment, approached the matter from the stand point of the tenancy agreement. The court said as follows:

“The gist of applicant’s complaint is about the operation of the business of the defendant company, a dealer in sea foods which include fish, can be restrained in the absence of evidence that the tenancy agreement contained a covenant not to sell fish on the premises or to operate a huge refrigerating plant for the preservation of its wares.

The agreement, though mentioned, was not exhibited. We are not in a position to decide what rights Chief Agbaje has vis-a-vis Jadesola Agbaje, or what right Jadesola Agbaje passed to the respondent. For the applicant to establish a prima facie case that will ground the relief sought, it would be necessary to decide this issue. Surely it must have been obvious to any person who let out the premises to the defendant, a fish dealer, to what use the premises would be put.”

In the first court (High Court) however, the application, it seems, was dismissed for different reasons to the above. The learned Chief Justice of the High Court in refusing the application for interim injunction said as follows:

“The plaintiff still has to show a strong prima facie case to enable him to an interlocutory injunction, and I think he can only do this in his Statement of Claim and not by way of an affidavit.

But even in the affidavit his paragraph 8 flatly contradicts his paragraph 5, and in view of this I do not see how the plaintiff hopes to convince the court that his health and that of his household suffers as badly as to enable him to this interim order.”