Apostle Adeolu Aina V. Dr. Olusanya Sonuga (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment)

This is an interlocutory appeal against the Ruling of Saula, J of the High court Ogun State, sitting at Sagamu delivered on the 17th day of February, 2006 in Suit No. HCS/16/97.

The appellants (as defendants) and the Respondents (as plaintiffs) each filed an application for interlocutory injunction at the lower court which were taken together, in his Ruling the learned judge dismissed the applications of both parties. Dissatisfied with the Ruling of the lower court, the respondents appealed against same vide the Notice of Appeal dated and filed with the leave of court on 5th April, 2008, pages 65-68 of the printed records of appeal.

The background facts are that the applications resulted from the judgment delivered in the substantive case delivered on 10th May, 2005 by olopade, J in which the appellants’ (defendants’) plea of rem judicatam succeeded while the respondents’ (plaintiffs) claims were dismissed. The then lower court (Olopade, J) did not proceed to determine the claims of the plaintiffs and consequently dismissed them. The Respondents were dissatisfied with the judgment and thereafter appealed against the judgment vide Appeal No.CA/I/80/09, which is still pending.

The appellants alleged that after the dismissal of the Respondents’ case, the Respondents herein went into the portion of land in possession of the appellants and committed several acts of atrocities by destroying all the economic trees, which led to the application for injunction, refusal of same and this appeal.

The appellants from their three (3) grounds of appeal formulated four issues for determination by this court. They are:-

1. “Settlement, physical occupation, unambiguous and exclusive possession found in favour of the Appellants are legal rights capable of protection in law by means of an injunction.
2. The Ruling of the lower court is erroneous preposterous, pervasive and is against the weight of evidence.
3. The discretion to grant an injunction is equitable which should be applied judiciously and judicially, the court must consider the conduct of the parties both before and at the time of application and the decision whether to grant (or not) the order sought must be related to actual and ascertained facts of the current situation.
4. The court system cannot be maintained without the willingness of the parties to abide by finding and orders of a competent court until reversed on appeal. The Respondents’ conduct is contemptuous of the judgment of HCS/16/97.”

The respondents on their part formulated a sole issue for determination; that is:

“whether or not the lower court exercised its discretionary power by dismissing the prayers for injunction by both the appellants and the respondents’ with care and caution, that is, judicially and judiciously.”

When this appeal was argued on 15/10/12 the learned counsel to the respondents informed the court of the demise of the former 1st respondent (Chief Adebayo Sonuga) and applied that his name be struck out. The application was not opposed and was granted; the former first respondent’s name was thereafter withdrawn and struck out.

In arguing the appeal, the learned counsel to the appellants F. Lawal Esq. adopted and relied on his brief of argument dated and filed on 27/7/09 and his reply brief dated 4th December, 2009 filed the same day but deemed as properly filed and served on 18th March, 2010, argued his four issues together. The learned counsel gave the background leading to the substantive suit as being title to the land called Agbodu farm land by both parties. The judgment of the trial court was highlighted as well as the reason for the dismissal of the respondents’ cased based on issue of estoppel per rem judicatam. The judgment was in favour of the appellants and was delivered on 10th May, 2005, pages 8-40 of the printed records. It was the contention of the learned counsel that a few days thereafter the respondents entered the land which the judgment covered and committed atrocities such as felling trees, pages 44 to 55 of the records.

It was argued that the appellants in order to protect their possession by way of summons on Notice filed before the lower court on 24th August, 2005 an application for injunction.

It was submitted that the appellants had a legal right which had been upheld and were vindicated against the respondents by virtue of three judgments, they are: J/21/63, SC/16/74 and HCS/16/97. Further, that a finding as to the Appellants’ possession of the land in dispute in the circumstances which includes a finding as to the settlement, reliance was placed on the case of ADIATU LADUNNI v. OLUDAJIN ADEKUNLE KUKOYI & ORS (1972) 3 SC P.31. It was also argued that the essence of the grant of injunction is to support a legal right and the that the pre-condition for an applicant is to show that he has a legal right that is threatened, see KOTOYE VS. CBN (1989) 1 NWLR (Pt.89) 419 and OJUKWU vs. GOVERNOR OF LAGOS STATE (1986) 3 NWLR 246 (Pt.26) 39.

It was the contention of the learned counsel that the Ruling of 17th February, 2006 by the lower court misconceived, the legal right of the Appellants which consists of possession of the land in dispute based on settlement, which was recognized by the high court in J/21/63, SC.16/74 and HCS/16/97, the case of AKAPO vs. HAKEEM HABEEB (1992) 6 NWLR (pt.247) 266, 270-272 was said to be distinguishable from the present case.

It was submitted that during the pendency of the Respondents’ appeal against the judgment in HCS/16/97, the Respondents went into the appellants, land and cut down economic trees. The alleged conduct was said to be contemptuous of the judgment appealed against, based on which the lower court ought not to have refused an injunction in favour of the Appellants, such act was said to have been condemned in OJUKWU v. GOVERNOR OF LAGOS STATE & ORS. (SUPRA).