Chief Brown Uzuda & Ors. V. Mr. Ezekiel Ebigah & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

M. CHUKWUMA-ENEH, J.S.C.

In this matter, the plaintiffs in suit NO.AHC/52/86 has claimed against the defendants jointly and severally, a declaration of right of occupancy, damages for trespass and injunction in regard to the land in dispute situated in Ahoada Judicial Division. The defendants as plaintiffs in a cross-action No.AHC/107/86 have also claimed similar reliefs against the plaintiffs as in Suit No.AHC/52/86 as defendants, in respect of the same land in dispute as in the aforementioned suit. The two suits have been consolidated.

The defendants in AHC/52/86 have filed an application for an interlocutory injunction to restrain the plaintiffs from entering the land in dispute. Sequel to its ruling on this application, the trial court on 16/10/87 has acceded to the application, thus restraining the plaintiffs from entering the land in dispute. However, the plaintiffs have not reacted immediately to the order of injunction until 31/10/88 when by an application, they have prayed the trial court to vary the order of interlocutory injunction to restrain both parties to the suit. In a considered ruling, the trial court refused their prayer declaring that it has become functus officio in respect of the matter. The plaintiffs have felt aggrieved by the decision and have appealed to the Court of Appeal (court below) on a Notice of Appeal containing 7 grounds of appeal as per a Notice of Appeal dated 1/6/89. The defendants also being dissatisfied with some aspects of the trial court’s decision have cross appealed to the Court of Appeal upon a Notice of Appeal dated 2/6/97 in which they have raised two grounds of appeal.

As events in this appeal will show the issues formulated from these two grounds of appeal have become the causa causans in this appeal, and so I have set them out below without their particulars as follows:

“Ground 1 – Error in law: The learned trial Judge erred in Law by assuming jurisdiction over a motion it had become functus officio by virtue of its decision dated 16th October, 1987 thereby occasioning a miscarriage of justice.

Ground II: Error in law: The learned trial Judge erred in law by assuming the jurisdiction of an Appellate Court”. The issues for determination raised from these grounds of appeal have been set out below. These grounds of appeal have raised substantial issues of law for determination; that is to say, in the con of the issue for determination distilled from them which are no pushovers. As will become obvious anon they have not been considered at all in the appeal before the court below.

Coming back to the sequence of events in this matter the court below on 11/7/2002 has handed down its decision in the matter by allowing the appeal with no mention whatsoever of the fate of the cross-appeal in its judgment as I shall show anon. The defendants, (the respondents) in the Court of Appeal thus aggrieved that the court below has not inter alia considered all the issues they have raised for determination in their cross appeal, have filed if I may repeat their Notice of Appeal containing 7 grounds of appeal against the said decision. In this court, the plaintiffs are the respondents while the defendants are the appellants.

In compliance with the Rules of this court, both parties have filed and exchanged their respective briefs of argument in this appeal. The Appellants (Defendants) in their brief of argument, have distilled two issues for determination and they are as follows:

(i) “Whether the Court of Appeal gave full and dispassionate consideration to all the issues raised in the Appeal and Cross-Appeal.

(ii) Whether the Court of Appeal was right in allowing the appeal considering the over one year delay by the respondents in filing the motion to vary, and if the status quo ought to have been maintained.”

The Respondents (Plaintiffs) have in their respondent’s brief of argument distilled two issues to wit:

(i) “Whether the court below properly appreciated the facts placed before it by the respondents before arriving at a decision in their favour.

(ii) Whether the court below should have considered the cross-appeal.”

At the oral hearing of this appeal before this court, both parties have adopted and relied on their arguments as contained in their respective briefs of argument to support their respective cases. The defendants have urged the court to allow the appeal, set aside the judgment of the court below and affirm the ruling of the trial court dated 30/5/89; the plaintiffs on the other hand, have urged that the appeal be dismissed for want of merit and that the cross-appeal not having been heard by the court below should be sent back to that court for hearing.

The Defendants (Appellants) in their brief of argument have contended that the court below has not given a full and dispassionate consideration to all the issues raised in the Appeal and Cross-Appeal as articulated in their issue one and have relied for support for so submitting on the cases of ATANDA V. AJANI (1989) 3 NWLR (Pt.111) 511 at 539 Per Obaseki JSC, AFOLAYAN V. OGUNRINDE (1990) 1 NWLR (Pt.127) 369 at 383, OWUDUNNI V. REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST & ORS. (2000) 6 SCNJ 399 at 405.

They have made the point that an appellate court as the court below is bound to consider the arguments in expatiation of the issues raised in the appeal before it as a matter of constitutional and statutory duty; that is to say – it is a legal duty it is enjoined to perform. They submit that the trial court on having delivered the ruling of 16/10/87, restraining the plaintiffs from entering the land in dispute has thus become functus officio of the matter and so have further submitted that the plaintiff’s appeal to the court below based on the rulings of 16/10/87 and 30/5/89 is a nullity and have referred to and relied on the cases of D. E. OKUNAGBA & ANOR. V. OMOSOHWOFA EBOH (1974) I NMLR 318 at 330, UKPA OREWERE & ORS. V. REV. MOSES ABI OGBE & ORS. (1973) 9/10 SC. 1 at 6. They have described the proceedings for the variation of the order of injunction of the trial court as attempting to review its earlier ruling, albeit irregularly and which should be set aside. They have alleged of their not having gotten justice and fair hearing as regards the said proceedings in that the status quo should have been maintained. They have urged this court to exercise its powers under Section 22 of the Supreme Court Act to do the evaluation or review of the parties cases in the appeals in the face of the court below having failed to discharge its duty in this regard.

On issue two it is the Defendant’s (Appellants) case that the plaintiffs have been guilty of delay lasting over one year in reacting to the said ruling of 16/10/87, thus defeating their reason for the belated reaction to the order of injunction. And being an equitable relief that their reaction has not been timeous, just as their conduct so far has been “reprehensible” without expatiating on the point. The Defendants/Appellants have also charged the Plaintiffs/Respondents of standing by all this while; and have relied on Section 151 of the Evidence Act to contend that before the rulings of 16/10/87 and 30/5/89, the Defendants/Appellants have been in exclusive possession of the land in dispute undisturbed by the plaintiffs/Respondents and so the status quo ought not to have been disturbed by the decision of the court below particularly as they, the defendants have no other land to farm on as against the plaintiffs/respondents who have their farmlands at Okogbe, their village. The defendants have made the point that the status quo ante bellum is the state of affairs before the beginning of hostilities i.e. before in the instant case, the dispute leading to the rulings of 16/10/87 and 30/5/89. And they also have submitted that they ought to have been allowed on the justice of the application to live, cultivate and harvest the said land pending the determination of the substantive suit which is still pending at the trial court. They rely on AKAPO V. HAKEEM HABEEB (1992) 6 NWLR (Pt.247) 266 at 273, MADUBUIKE V. MADUBUIKE (2001) 9 NWLR (Pt.719) 698 at 701, THE QUEEN V. ADARO (1991) NWLR (Pt.586) 330 at 332, THE GOVERNOR OF LAGOS STATE V. OJUKWU (1986) 1 NWLR (PU8) 621 and AYORINDE V. ATTORNEY-GENERAL OF OYO STATE (1996) 3 NWLR (11.434) 20 for so submitting. On the question of balance of convenience as between them and the plaintiffs, they have alleged that the same has been in their favour as they stand to lose both beneficially and financially if this appeal is not allowed. They make the point that the plaintiffs/respondents have not truly applied for interlocutory injunction against them in both lower courts but have otherwise raised an application to vary the order of injunction granted against them because as has been found by the trial court:

“by the order, the Defendants/Respondents in the consolidated suits are the only persons now using the land while the plaintiffs have no access to it.”

And even then when the trial court has also found that:

“This, no doubt, is the natural sequence of events following, from the order and cannot be a natural sequence of events following from the order and cannot be a ground for asking the court to vary the order. They are not supervising acts but acts resulting from the order made against the Plaintiffs/Applicants.”

And that on these premises, the court below has no power to award to the plaintiffs/respondents even then that which they have not asked for. See: EFFIONG V. NYONG (1975) 2 SC.71 at 80, and ODOFIN V. AGU (1992) 3 NWLR (Pt.229) 350 at 369-373. Finally, the court is urged to set aside the decision of the court below as having been given in error and for having occasioned a miscarriage of justice.

The defendants i.e. respondents, it must be stated from the onset in the concluding paragraph of their briefs of argument in this appeal apparently have conceded issue 2 raised by the defendants/appellants to the effect that the cross-appeal has never been heard by the court below and so that that issue should be resolved in the defendant’s favour. The plaintiffs further have opined that the main appeal against the judgment of the court below ought to be dismissed for want of merit; the cross-appeal for not having been heard by the court below should be sent back to the court below for hearing.

As an aside, to experience this rare gesture of knowing when to throw in the towel unto the arena of contesting parties in a dispute as the instant one otherwise gracefully and neatly for that matter is one of the hallmarks of good advocacy. In this regard, I think the senior counsel and his team for the plaintiffs (respondents) in this matter must be commended highly as having demonstrated what good advocacy under the rule of law encompasses; this underscores the fact that the senior counsel and his team are true officers of the court. They have played the game with their cards face upwards. Win or Lose taking a position as this on the peculiar facts of the matter, serves the interest of justice apart from saving the time of the court – it is worthy of emulation by counsel generally.

Coming back to this matter, it must be said that in the light of this development in this appeal, this court has to grapple with a set of new issues of whether to accede to the plaintiffs/respondent’s application to decide the main appeal in their favour (that is to consider it as unrelated to the cross-appeal) and so to remit the cross-appeal only to the court below for hearing or to stop so far in this matter and dispose of the appeal as a whole by remitting the same to be reheard by the court below for failure of justice. The concession, viewed from another angle has also raised a further question of whether it has not otherwise completely undermined this matter as a whole as the issues for determination raised in both appeals are similar thus, underscoring the point that the main appeal and the cross-appeal having been founded on the same substratum that neither of them can really be dealt with distinctly separately as the discussion of one must necessarily involve the other and so to proceed to decide on the main appeal as has been urged by the defendants cannot be conveniently undertaken. See: JAMGBADI v. JAMGBADI (1963) NSCC Vol. at 281.

The instant case is dissimilar to the cited case as it stands on a different footing to the case of JAMGBADI V. JAMGBADI (1963) NSCC (Vo1.3) 281; where this court has found that the trial judge dismissed a cross-petition without referring to or making a finding on the allegation of desertion or the evidence in its support thereof. This court has found that the appellant was entitled to have the allegation of desertion considered and that the cross-petition should go back to be reheard on that issue by the High Court and that the judgment of the trial court in so far as it had to do with issue of desertion, be set-aside. And so the principle in that decision is not helpful in this matter.

However, in this matter, the court below has failed to make any finding on the case of the appellant both in the main appeal and cross-appeal. That is the big difference between the two cases; i.e. the cited case and this case.

But firstly, I cannot agree more as postulated in paragraph 5.2 of the appellant’s (defendants) brief of argument that the judgment of the court below started at pages 1 to 3 on introduction/selling out the issues for determination. From pages 4 to 5 of the record have reproduced the salient paragraphs of the affidavit of the respondents in support of the respondent’s case. From pages 6 to 8 of the record the court below has commenced its review of the respondent’s case when it has not even as much as adverted its mind to the plaintiff’s counter-affidavit as well as the submissions of their Counsel on the issues raised for determination not to mention of paying commensurate attention to the defendant’s case in this matter. In short, it has not treated the parties respective cases with the deserving even handedness of approach to their cases as per their briefs as expected of an appellate court. As conceded by the defendants and their Counsel, the court below merely considered the case of the defendants only thus, respectfully shirking its statutory responsibility and so has fallen into a grave error in this regard. See: POLYCARP OGOBUE & ANOR. V. AJE NNUBIA (1972) 6 SC.27 and OYEDIRAN V. ANISE & ORS. (1970) 1 AN4 313 at 317.

It must be stated clearly that the judgment of the court below is not being attacked because of its method of assessing evidence of the parties nor on the ground of the trait or style of its dealing with the judgment of the court below. To illustrate the point, in the case of OKULATE V. AWOSANYA (2000) 2 NWLR (Pt.646) 53 at 546 where the court’s duty on balancing of the cases of the parties before it has been considered, this court said:

“As I understand it, so long as a judge does not arrive at his judgment merely by considering the case of one of the parties before considering the case of the other, his judgment, if right will not be set aside simply on the method of assessment of the evidence or approach to the entire case, he might have adopted. It can be no cause for want that different judges adopt varied approaches. There are those who even begin with the defence case. And they may be able to properly cope with that approach provided it is always remembered that it is the plaintiff who must prove his case on the balance of probabilities.”

See also: WOLUCHEM V. GUDI (1981) 5 SC.29 1 at 294. The court below has not only failed to review the defendant’s case, it has not weighed it as it must against the plaintiff’s case to see which is more probable. The defendants/appellants have therefore every justification of complaining against that decision.

To further illustrate respectfully of this slant in the treatment of the plaintiff’s case, I have to refer to P.6 of the Record where the court below has considered the preponderance of the defendant’s (Respondents) case (not side by side the appellants’ case), it has thus observed as follows:

“Strictly speaking, is the one sided order of restraint justifiable In other words, did the court consider the facts averred by the appellants in their application for the variation of the order having regards to the disquieting implication of that order by the court It must be pointed out that the object of injunction in a matter such as the one before us is to ensure that justice based on what can be said to be fair to all disputants in litigation is meted and not to punish one or sacrifice the interests of the other. Where a court conceives that an injustice might occur to any side and true justice as empirically conceived would suffer irremediably then such an order ought not to be made. It is essential and I dare say imperative that the fundamental premise for the grant of order is made from behaving in a party against whom the order is made from behaving in an unconscionable manner or manifesting such unwelcoming idiosyncrasies which when viewed properly would readily damage the interest of the other party and a sorry state of affairs would be institutionalized or allowed to exist which would render any future decision useless or might in all probability, cause a damage that cannot be easily cured by way of compensation.”

Again, indeed before the above abstract, the court below at P.4 of the Record’s last paragraph in justifying the substantiality and weight of the respondents’ case as per their depositions, has made the following findings, to wit:

These to my mind are the relevant averments in their affidavit. It therefore goes to show that the court below by allowing the Respondents the leave and licence to be exclusively in this land has given the Respondents the right to do whatever they wanted whether their acts might undermine the interest of the Applicants that is the Appellants. The court in its ruling has said as follow in respect of the allegation of the supposedly repellent acts of the Respondents on the land…They are not supervening acts but acts resulting from the order made against the Plaintiffs/Applicants. The order of the court is not conditional. In other words, he did not say that Defendant/Respondent should not carry out certain acts on the land in respect of which an order of interlocutory in junction was made against the Plaintiff/Applicants.” These abstracts speak for themselves.

Nowhere in the record is it showed of equal treatment of the defendant’s case notwithstanding that they have filed a counter affidavit challenging the plaintiff’s application to vary the order of injunction. It is therefore a grave error of the court below not to have considered the Defendant’s case, I dare say not only in regard to the cross-appeal but also on the main appeal itself.

I have deliberately highlighted the above abstracts of the judgment of the court below to underscore as well as to lend credence to the plaintiff’s contention of a total failure on the part of the court below to consider the plaintiff’s case.

One other crucial deduction as evidenced from the above abstracts has culminated in a settled mind of the court below to interfere with the trial court’s exercise of its discretion in granting the instant interlocutory injunction. In that case, it is incumbent on the court below to show that the discretion has been exercised arbitrarily, not grounded on credible evidence before the court and therefore has occasioned a miscarriage of justice. The court below, it must be said has formed the said mind to interfere with the trial court’s exercise of its discretion as evidenced in its decision without a balanced consideration of the evidence and other materials placed before it by both parties in this matter. There can be no doubt therefore from the foregoing reasoning of a failure of justice and a denial of fair hearing.

The defendants (Respondents) have asked that the cross-appeal should be sent back to the court below for rehearing on that issue and that the main appeal should be dismissed in favour of the defendants (Respondents). I think that to do that would leave the cross-appeal completely nugatory, if not a mere academic exercise. I also think on the merits that the justice of this matter demands that both appeals ought to be reheard by the court below de novo.

In the result, there is merit in this appeal. It is allowed and the judgment of the court below in its entirety is hereby set aside. It is the order of this court that the appeals; both the main-appeal and cross-appeal be and are hereby sent back to the court below to be heard expeditiously by a different panel of the court below.

The Appellants are entitled to the costs of N50,000.00

SC.348/2002