Chief Emeka Odumegwu Ojukwu V. Military Governor of Lagos State & Ors (1985)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.C.A.

This is an application by the applicant and the Party Interested for the following reliefs:

“(i) Pursuant to Section 222(a) of the Constitution of the Federal Republic of Nigeria, 1979, granting leave to Ojukwu Transport Limited to appeal from the decision given herein by the Lagos High Court on the 11th of October, 1985;

(ii) Pursuant to its inherent jurisdiction, directing that the appellant shall be reinstated in his residence at No. 29, Queen’s Drive, Ikoyi and that all officers, servants, agents and functionaries of the Lagos State Government shall be restrained from evicting or taking any steps to evict the plaintiff from his residence at No. 29, Queen’s Drive, Ikoyi, pending the determination of the appeal herein;

(iii) Such further or other order as this Honourable Court may deem fit to make.”

The grounds of appeal intended to be filed by the Party Interested if leave is granted are also stated as follows:

“(i) The learned trial judge erred in law in holding that the property at No. 29, Queen’s Drive, Ikoyi, became vested in the Committee on Abandoned Properties under Section 5 of Edict No.8 of 1969 when the property in question is not an “abandoned property” as defined under Section 20(2) of the said Edict.

(ii) The learned trial judge erred in law in failing to observe that even if the plaintiff herein entered into possession of the property at No. 29, Queen’s Drive unlawfully, it is the prerogative of the Party Interested or anyone lawfully claiming through or under it and not that of the Lagos State Government to oust the said plaintiff from such possession.

(iii) The learned trial judge erred in law in holding in effect that as against the Government of Lagos State and/or its agency (the Committee of Abandoned Properties) the possession or occupation of the property at No. 29, Queen’s Drive by the plaintiff is unlawful when such possession is, in law, good and lawful against the whole world except against the Party Interested or anyone lawfully claiming through or under it.”

The application is supported by a First Affidavit sworn to by Rafiu Babatunde Azeez, the Litigation Clerk in Chief Rotimi Williams Chambers sworn to on the 23rd of October, 1985, and a Second Affidavit by the applicant himself sworn to on the 28th of October, 1985. Also exhibited to the motion paper was a similar application with exhibits before the Lagos High Court and dated 14th day of October, 1985. Some of the exhibits were a letter from “Osagie, Okeke, Otegbola and Co., Estate Agents, dated 19th day of November, 1984, (Exh. “A”) to the Permanent Secretary, Department of Housing, Lands and Development Matters for Lagos State Government; a letter from the Commissioner of Police, Lagos State Command, dated the 4th of September, 1985, and addressed to the applicant, (Exh. “B”), the ruling of the Lagos State High Court, per Omotosho, J., of the 11th day of October, 1985 (Exh. “C”), and a second counter affidavit of Alhaji Saminu Daura, Commissioner of Police sworn to on the 18th of October, 1985, (Exh. “5”). In another ruling of the High Court dated the 23rd day of October, 1985, (Exh. “6”), it refused the prayers now being urged on us.

The background facts from which this application has emerged could be summarized briefly. The whole story relates to a house at No. 29, Queen’s Drive, Ikoyi. It is common ground and confirmed by the affidavit on behalf of the respondents as well as the rulings of the learned judge of the lower court that this property belongs to Ojukwu Transport Ltd., the Party Interested. Up to a point subsequently, it was occupied by G. Cappa Ltd. The respondents regard this property as abandoned property, the management of which lay with the Lagos State Abandoned Property Committee, but the actual letting of the property would appear to have been handled by Osagie, Okeke and Otegbola (hereinafter called Estate Agents). I shall deal with the manner in which the applicant first moved into the house in due course.

The applicant started using the house as his home with his family since the 16th of November, 1984. His occupation of the house was confirmed by a letter dated 19th November, 1984, Exh. A to the counter affidavit in the court below, from the Estate Agents to the Permanent Secretary, Department of Housing, Military Governor’s Office, Lagos State. It does appear, the applicant remained in peaceful occupation of the house and premises from that date till the respondent wrote to him a letter No. LGS.539/S.2/258 dated 12th August, 1985, requiring him to move out of the house by 28/8/85 or be ejected. He did not move out of the house. Obviously, for reasons which are now apparent, the ejectment did not take place. By another letter dated 4th September, 1985, the Commissioner of Police, Lagos State, informed the applicant that if he did not hand-over the keys to Government agents by the 11th of September, 1985, he would be ejected by force. The applicant did not move out but decided to go to court. By a writ of summons dated the 5th of September, 1985, the applicant sued the respondent claiming as follows:

“(a) A Declaration that the decision of the defendants to eject the plaintiff from his house at No. 29, Queen’s Drive, Ikoyi, Lagos State if the plaintiff does not vacate the said house on or before the 11th day of September, 1985, is unlawful, illegal and ultra-vires the provisions of the Constitution of the Federal Republic of Nigeria, 1979.

(b) An injunction restraining the defendants whether by themselves or by their servants, assignees or privies from ejecting the plaintiff and the members of his family from the plaintiff’s house at No. 29, Queen’s Drive, Ikoyi, Lagos State.

DATED this 5th day of September, 1985.”

In the meantime, by an ex-parte motion dated the 6th of September, 1985, the applicant obtained an interim order in the following terms:

“(1) An Order for interim injunction restraining the defendant/respondents whether by themselves or by their servants, agents, assignees or privies from ejecting the applicant and members of his family from the applicant’s house at No. 29, Queen’s Drive, Ikoyi, Lagos State until Friday the 4th of October, 1985, when I propose to hear the defendants/respondents after which I shall decide whether or not the injunction shall continue until the determination of this suit.

(2) Before that date all necessary papers relating to this application shall be served on the defendant/respondents.

(3) The Order of interim injunction shall be served on the defendants/respondents by the Bailiff today or at any rate before tomorrow morning.”

After service of the motion, the applicant filed a Further Affidavit in which he tried to show how he first got into the house and tried to correct some of the facts deposed to by him in the affidavit in support of the ex-parte motion. The respondents also swore to a counter-affidavit in which they maintained that the property was that of Ojukwu Transport Ltd.; that nobody gave the keys of the premises to the applicant; and that they did not authorise the property to be let to him. In a considered ruling given on the 11th of October, 1985, the learned judge refused the application for interlocutory injunction and discharged the interim order which she had made earlier. Her main reasons for the ruling were that the applicant misled the court by some mis-statements in his original affidavit and that as the premises in dispute was the property of Ojukwu Transport Limited which belonged to the applicant’s late father and the applicant was not a Director thereof, he had failed to show prima facie that he had a legal right, the infringement of which ought to be protected by an order of interlocutory injunction. She also held that the property became abandoned property which had been vested in the Committee, under the Abandoned Property Edict. On the 14th of October, 1985, the applicant appealed against the said order. He has through his counsel applied for and been granted accelerated hearing of the appeal. It has been fixed for hearing on the 3rd of December, 1985. Additionally he and Ojukwu Transport Ltd., as the Party interested, have brought this application for the reliefs set out above.

Counsel on both sides addressed us at great lengths on the issues raised by this application. I do not intend to set down the two-day addresses in full, particularly as I propose to refer to the salient points in the arguments and, among others, the legal authorities cited by both counsel, in my consideration of each of the various points raised. I intend to give only a summary of the various contentions.

Chief Williams, for the applicant, submitted that it was wrong in law for the respondents to have wrestled possession from the applicant who had the premises in dispute as his home with his family for nearly ten months. Also, as he had pending in a court of law a suit challenging their right to evict him and praying for injunction they could not resort to self-help to eject him. He had a claim of right, he contended and ought to be restored to possession, pending trial of the suit. The Party Interested, he submitted had shown sufficient interest in the matter and has substantial grounds of appeal. So they should be given leave to appeal.

Mr. Alabi for the respondents, submitted that the Party Interested although the owner of the property in dispute had not shown sufficient interest in the suit and so ought not be given leave to appeal. The applicant ought not be restored to possession because he had committed the crime of forcible entry. Having been refused his prayer for interlocutory injunction and been adjudged a trespasser the respondent could use reasonable force to eject him. As the applicant was a trespasser the respondents were entitled to resort to self-help, he argued. He also contended that it was not competent for the applicant or the party interested to challenge the operation of the Lagos State Administration on Abandoned Property Edict by saying that the property in dispute was not an abandoned property.

In his final address Chief Williams submitted that it was not proved that the applicant committed forcible entry. The applicant and the party interested far from challenging the Abandoned Property Edict assume its validity but say that the property in dispute is not abandoned within the meaning of the Edict, he submitted.

I would deal first with the application for leave of Ojukwu Transport Ltd. to appeal against the ruling of the High Court. There is no doubt from the materials before the Court that the company, the Party Interested is the owner of the property in dispute. That fact is the foundation of the respondents’ case as shown in paragraphs 6-10 of the counter-affidavit of Surajudeen Umar on their behalf sworn to on the 30th of September, 1985. It was accepted as duly established by the learned trial judge in several passages of her ruling. The unchallenged affidavit evidence of Rafiu Babatunde Azeez in support of the motion says inter alia as follows:-

1. ….Chief Rotimi Williams has also been briefed to represent Ojukwu Transport Ltd., who are the owners of the property at No. 29 Queen’s Drive, Ikoyi, and are the Party Interested cited above.
2. Both the said plaintiff and the party interested are dissatisfied with the decision of the Lagos High Court delivered herein on Friday the 11th day of October, 1985.
3. The plaintiff has already filed an appeal against the said decision and the party interested also intends to appeal if it obtains the leave of this court or the Court of Appeal to do so.”

There is no counter-affidavit to these averments. The question is therefore whether on the above facts the Party Interested could be said to have shown sufficient interest in the matter.

In my view Mr. Alabi was right when he submitted that for the Party Interested to succeed in getting leave to appeal they must show that they have interest in the matter and show substantial grounds of appeal.

What then is the nature of the interest contemplated by the Section. In my view it does appear that the acid test is whether the person could have been joined as a party to the suit. This view is supported by cases decided either on identical provisions of or by analogy from English rules of practice.

In Akinola Maja & Ors. v. Harriett Johnson (1951) 13 WACA. 194 the West African Court of Appeal held inter alia as follows:

“Authorities referred to in Annual Practice, 1949, at page 1325, establish that it is in England the practice that where a person might have been a party to the suit he may be granted leave to appeal against a judgment therein affecting his interest.”

The same principle was repeated by the Privy Council in Harriet Johnson v. Baba Funke Aderemi (1955) 13 WACA. 297, per Lord Radcliffe at page 299. Surprisingly these two cases were cited by the learned counsel for the respondents in support of his contention to the contrary. In another case of Nwanyieke Mbanu v. Godfrey Mbanu (1961) All NLR. 652, the Supreme Court said on Section 110(6)(a) of the 1960 Constitution:

“It is apparent from the pleadings that the applicant has an interest in the subject matter, which might well have entitled him to be added as a party to the action, and might also have entitled him to bring an appeal himself under Section 110(6)(a) of the Constitution. He did not, however, adopt the former course, and the latter course was not possible as the time for appeal under the former rules of this Court had expired. The applicant now applies to be substituted as appellant under Order 16 Rule 46, as read with Order 17 Rule 4 of the Rules of the Supreme Court in England which apply in the Eastern Region by virtue of section 15 of the High Court Law.

In our view these rules do not cover a case such as the one we are now considering…………

………..

Although this dictum is obiter, it is nevertheless a correct statement of the law. Section 110(6)(a) of the 1960 Constitution is in pari materia with Section 222(a) of the 1979 Constitution. The application was dismissed not because the applicant had no interest in the matter but because instead of taking advantage of the constitutional provision he rather proceeded on the question of transmission of interest. So his application failed. Again in Harry Akande v. General Electric Company & Ors. In re: General Electric Company of U.S.A. Nigeria Limited Aniagolu, J.S.C. interpreting S. 121E(5)(a) of the Constitution (Amendment) (No.2) of 1976 which was the direct forerunner of S.222(a) of the 1979 Constitution and in pari materia with it said;

“the person therein stated exercising the right of appeal to the Court of Appeal, must be one named in the record or, with leave, having an interest in the proceedings – which term would include a person affected or likely to be affected, or aggrieved or likely to be aggrieved by the proceedings.”

This view of the meaning of the section is certainly wider than what has been urged on us on behalf of the respondents to the effect that only one who is named in the record could be granted leave to appeal. That interpretation of the sub-section will lead to absurdity. In my view an intervener shows sufficient interest under section 222(a) of the 1979 Constitution if he is able to show that he has proprietary interest in the subject matter in litigation but that one or two of the parties to the litigation are strangers to the subject matter who are fighting over it to the prejudice of his proprietary interest. In the instant case I cannot imagine a better interest than that of the Party Interested whose ground of appeal raises inter alia the question as to whether the property in dispute is an abandoned property whereas the whole basis of the respondents’ interest in the matter is that it is an abandoned property. It appears clear to me that in view of the fact that the ownership of the property is admitted to be that of the Party Interested and there is uncontroverted evidence that it has briefed a counsel to file the appeal for it, it being a company, has shown sufficient interest under the Section. Indeed if the Company’s contention in the first ground of appeal is established not only will the assertions in grounds 2 and 3 follow but also the respondents will be automatically out of the contest. I have also considered ground 1 in the light of Section 20(2) of the Administration of Abandoned Properties Edict which defines “abandoned property” to mean:

” property movable or immovable, situate or found in Lagos

State and which belongs to any of the following persons, that is

(a) any person who fled from his home in any part of Nigeria to a place in some other part of Nigeria or a place outside Nigeria;

(b) any person who was removed against his will by the rebels from his home in any part of Nigeria to any such other place as aforesaid; in consequence of the current civil war in Nigeria but the expression does not include the property of any such person if that person is in Lagos State and has control and management of the property.”

As I see it, the gravamen of the ground is whether or not the definition includes a property such as this which is owned by a company. I should not attempt an answer at this stage. All I can say now is that the applicant has substantial grounds of appeal. Having satisfied the two grounds propounded by the learned counsel for the respondents himself, it is my view that the Party Interested is entitled to be given leave to appeal.

I shall now consider whether the applicant is entitled to be restored to possession of the house and premises in dispute.

The first question I must ask myself is: What is the nature of the applicant’s entry and occupation of No. 29 Queen’s Drive, Ikoyi, Lagos? The learned judge described him as a trespasser. To the extent that no issue was joined on the point or proper evidence thereon, that finding is unwarranted. We are not yet hearing the appeal, and should, as far as possible, refrain from expressing in this ruling any opinion on issues being raised in the appeal. As that issue is of considerable import in this application but was not taken up specifically in any of the three grounds of appeal, I deem it necessary for purposes of the second prayer to say something about it here. The respondents maintain that the applicant broke into the house. If he did so, it is very bad. As Mr. Alabi has rightly pointed out, forcible entry into any land or house in the possession of another is a crime. But there is no direct evidence of that in this case against the applicant. The respondents appear to rely on the letter of the Estate Agents dated the 19th day of November, 1984. That letter runs thus:

OSAGIE, OKEKE, OTEGBOLA & CO. ESTATE AGENTS

Mr. R. K. Raheem,

Permanent Secretary,

Dept. of Housing, Land & Development Matters,

Military Governor’s Office,

State Secretariat, Alausa, Ikeja,

Dear Sir,

29 Queen’s Drive, Ikoyi

No sooner I got back into my office today then I met Chief Emeka Ojukwu in my Senior Partner’s, Mr. S. N. Okeke, Office and he informed me that he has actually moved into the above premises and that he has no intention of moving out. I am therefore not able to proceed with the letting of the subject matter of my letter dated 16th November, 1984.

At the time be broke in G. Cappa Limited were still in occupation and were still holding the keys to the premises.

In order to help your deliberation, I enclose herewith photocopies of what has transpired between this firm and Dr. (Miss) Stella Onyeador and International Merchant Bank. Please let us have your instruction.

Yours faithfully,

(Sgd.) (S. A. Otegbola)”

Now as the writer of the above letter never testified or swore to the correctness of the contents it was inadmissible in evidence in view of Section 90(i)(a) and (b) of the Evidence Act. In any case, even though exhibited to the affidavit, it is of no probative value: it is only proof of what the respondents received but does not establish the correctness of its contents. Also it appears that the first paragraph which says that the applicant has actually moved into the above premises and he has no intention of moving out, suggesting that he moved in peacefully, is in conflict with the next paragraph which says that he broke in while G. Cappa Ltd. were still in occupation and were still holding the keys to the premises. There is of course a world of difference between moving into a premises as stated in the first paragraph and breaking into it as averred in the second. Neither G. Cappa Limited nor the Estate Agents testified to prove the contents of the letter. Without some evidence from G. Cappa Limited who were said to be in possession and had the keys one cannot say that the charge of breaking in has been proved. This being in the nature of a criminal charge it goes without saying that it ought to be proved beyond reasonable doubt: See Section 137(1) of the Evidence Act; also Godwin Nwankwere v. Joseph Adewunmi (1966) NMLR. 129. It is for this same reason that I regard whatever Surajudeen Umar, a State Counsel resident at No. 68, Ayilara Street, Surulere, or Julius Ola Kogbodoku, a Civil Engineer of Plot 84, Lame Awolokun Street, Gbagada, deposed to about the way the applicant entered the premises without revealing the source of their information as hearsay and inadmissible. I can only reach one conclusion, that is that the breaking in was not proved. On the other hand in paragraphs 6, 7, 8, 9, 11, 12, 13 and 14 of his Further Affidavit sworn to on the 17th of September, 1985; the applicant deposed as follows:

“6. That on my release from Detention on 4th October, 1984, I began to search for accommodation in Lagos.

7. That my wife, Stella Odumegwu-Ojukwu, discovered that No. 29, Queen’s Drive, which was then leased by Messr. G. Cappa, was available for subletting.
8. That Messrs. G. Cappa directed my wife to the firm of Osagie, Okeke and Otegbola, who Messrs. G. Cappa had mandated to seek out and sublet the house to a client.
9. That my wife, conducted the entire transactions on our behalf with Messrs. Osagie, Okeke, Otegbola and Company.
10. That my wife met with the said firm in the person of Mr. Otegbola and was requested to refund the unexpired portion of the rent already paid by G. Cappa.
11. That my wife issued a cheque for N89,000.00 (Eighty-nine thousand Naira) to the said firm for the unexpired term of G. Cappa’s tenancy, for onward transmission to Messrs G. Cappa.
12. That the firm accepted the said cheque and informed my wife that the house would be vacant for occupation as from 15th

November, 1984.

14. That I moved into the house on 16th November, 1984 without let or hindrance. ”

These averments were not contradicted by either G. Cappa Ltd. or the Estate Agents. They suggest peaceful entry, after negotiation rather than forcible entry. Two letters, exhibited, dated 19th November, 1985, from the Estate Agents to the Permanent Secretary, Department of Housing, point unmistakeably to the fact that the pressure against the sub-letting to the applicant after he had moved in came from the Permanent Secretary.

Indeed the first paragraph of the letter of the Estate Agents set out above seems to confirm that the applicant had moved in pursuant to the negotiation. It is significant in this respect that the Estate Agents had earlier willingly accepted the cheque for the sub-lease for the residue of the term granted to G. Cappa Limited. Importantly there is no credible evidence of his application of physical force in order to enter. Even assuming, but not agreeing, that he entered by stealth or any contrivance that entry is not forcible entry and, as the respondents acquiesced to his staying on for ten months, there is nothing to deprive him of being said to be in peaceful possession. Be that as it may, that house was his home, undisturbed, between 16th November, 1984 and 12th August, 1985, when the respondents first wrote to him that if he did not quit the premises by 28/8/85 he would be ejected. Applicant further maintains that he has a further right to be on the premises because his late father was the owner of Ojukwu Transport Ltd., the admitted owners of the property, and because he is a shareholder of the company. He had lived there as his home undisturbed for nearly ten months; he maintains that he had genuine claims of right to be there. Those claims of right may or may not be founded in law. But the question raised by these proceedings is: in view of those claims of right, the fact that the manner in which he went into the premises was not proved and the length of his stay therein were the respondents entitled to take possession of the premises by use of force, by using some one hundred and fifty armed men, as has been deposed to, and during the pendency of a suit in which he is asking the court to declare in his favour his right to remain there and restrain the respondents from disturbing his possession?

To answer this question, it is useful and convenient to begin by examining the position of the law in England. In England, since 1381 the time of Richard II, it has been unlawful by statute (see Statute of Forcible Entry, 5 Richard II) for any person to enter by force into a premises which is in the possession of another and to which that person in possession makes a claim or right, rightly or wrongly, to remain in possession. If that person wants to wrench possession from the person in possession he must apply for an order of a court of law. The case of Agbor v. Metropolitan Police Commissioner (1969) 1 WLR. 703 very clearly illustrates this point. The facts are summarized in the report at pp. 703-704 thus:

“On March 7, 1969, the applicant, wife of a representative in London of the former Eastern Region of Nigeria now known as the Republic of Biafra, issued a writ and moved the court ex-parte for injunctions (a) restraining the Metropolitan Police Commissioner from preventing her and her family from obtaining access to and living in, and (b) requiring him to restore possession to her of, the ground floor flat of a London house. Affidavit evidence showed that the Eastern Region government had bought the house in 1965; that later by arrangement the first floor was occupied by Eastern Region representatives and the ground floor was the residence of a diplomatic attache to the High Commission of the Federal Government of Nigeria; that the Eastern Region had then seceded from the Federation and civil war broke out in Nigeria; that on February 4, 1969, the diplomatic attache had left the ground floor premises with his possessions after the gas and electricity boards had been notified that he was leaving; that later on the same day the applicant, with her husband and children, had moved into occupation by means of a key in their control; that the High Commissioner, ignoring an invitation to challenge their claim to occupy through the courts, had invoked the assistance of the United Kingdom Government as the receiving State in relation to “the private residence of a diplomatic agent” under article 30(1) of the Diplomatic Privileges Act, 1964; and that acting on executive instructions through the Foreign Office and the Home Office the Metropolitan Police had, on March 7, summarily evicted the applicant and her children. Mars-Jones, J. refused the orders asked for”

On appeal, Denning L.J. held at p. 707

“The plain fact here is that Mr. and Mrs. Agbor claim as of right to be entitled to possession of the ground floor of this house. They occupied it on February 4. They entered by stealth. They used a key that had been left behind. But they did it under a claim of right. It may be that they had no such right as they claimed. But, even so, the proper way to evict her was by application to the courts of law. No one is entitled to take possession of premises by a strong hand or with a multitude of people. That has been forbidden ever since the Statute of Richard II against forcible entry. This applies to the police as much as to anyone else. It applies to the government departments also. And to the Nigeria High Commission. If they are entitled to possession, they must regain it by due process of law. They must not take the law into their own hands. They must apply to the court for possession and act only on the authority of the courts. An Englishman’s house is his castle. So is the house of anyone lawfully resident here. It is not to be invaded unless the law permits.

So we reach this position: Mrs. Agbor was there for four weeks. She was there long enough to be properly described as being in possession. She was there under a claim of right made in good faith. She has been wrongfully turned out by the police. I say “wrongfully.” But I would add at once that the police are not to blame in the least. They were acting on the mistaken belief that it was the private residence of a diplomatic agent. Seeing, however, that possession was taken from her wrongfully, it should be restored to her. Thus only can the law be vindicated. If she is to be turned out, it must be by due process in the courts of law and not by action of the executive. The Nigerian High Commission may be able to make a good case almost at once. If so, let them do it, but let them issue a writ forthwith against her. It can be speedily heard. But that is the only way to do it.

In my judgment this court should make an interim order that she be restored to her possession of this flat. The final rights can be decided later. I would allow the appeal accordingly.” (Italics mine)

I must observe that even if the police did not act under the mistaken belief that the house was a home of a diplomatic agent, the result would have been the same once they wrestled possession from the occupant by force.

Also, Salmon, L.J. at p. 708 after adverting to the conflicting claims of the Nigerian and the representatives of the rebel regime as to which of them was entitled to be in possession, confessed that there was no material before them from which they could resolve the conflict, but held that that issue was irrelevant at that moment. He emphasized that when it came to be decided it was a matter for the courts to decide, certainly not for the executive or the police. He quoted from the case of Seymayne (1604) 5 Co. Rep. 91(a) in Smith’s Leading Cases (Vol. 1) 104:

“The poorest man may in his cottage bid defiance to all the forces of the Crown…. the storm may enter – the rain may enter – but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement.”

The learned Lord concluded:

“The common law gives no shadow of right to the police or the executive to evict anyone from his home.”

There can be no doubt that if the law in Nigeria is the same with that in Britain then the eviction of the applicant would be held to be wrongful. His reinstatement should be ordered in the interest of societal discipline and rule of law.

I agree with Chief Williams, for the applicant that there are some factual differences between this case and Mrs. Agbor’s Case and which make this case stronger in favour of the applicant. First, it was established that Mrs. Agbor entered the premises by stealth; but it is not proved that the applicant entered either by stealth or by breaking in. At least the first paragraph of the Estate Agent’s letter dated 19th November, 1984, confirms that they were aware that he had moved into the premises. It may well be that pursuant to their negotiation with him and payment of a sum of N89,000.00 he had moved into the premises before, it does appear, they were got to change their mind about the transaction. Secondly the premises at No. 35 Woodstock Road, Golders Green, London, was regarded as Mrs. Agbor’s home because she was in occupation of it for four weeks. In this case, 29 Queen’s Drive was the applicant’s home for nearly ten months after the respondents and their agents became aware that he was there, during which he suffered no disturbance or harrassment from the respondents or their estate agents.

Mr. Alabi’s answer to the above is that the respondents were entitled to resort to self-help; the house was an abandoned property which got vested in the Lagos State Abandoned Property Authority under Section 5 of the “Administration of Abandoned Properties Edict, No.8 of 1969”. They contend that as they are trustees to Ojukwu Transport Limited of which the applicant is not a director, they are entitled to use force to eject him who is a trespasser.

What then is the law in Nigeria on this aspect of the application? In Okotie-Eboh & Ors. v. D.P.P. (1962) 1 All NLR. 353, the appellants were tried and convicted of forcible entry contrary to Section 74 of the Western Nigeria Criminal Code. On appeal to the Federal Supreme Court, a number of pronouncements, per Ademola, C.J.F., are in point and useful in this case. On the true meaning of actual possession he said:

“Actual possession means no more than physical possession, possession in fact – see Stroud’s Judicial Dictionary, (3rd Ed.) p. 51. The word “peaceful” should be read in its ordinary meaning of a man being in possession of the land not by means of physical force.”

This is material to my finding in this case that it was not established that the applicant entered forcibly. It has not been doubted that to the knowledge of the respondents he remained in undisturbed physical possession for nearly ten months thereafter. Further on His Lordship held:

“The second head of argument by the appellants’ counsel is that it was a mistake on the part of the learned judge to treat section 74 of the Criminal Code as equivalent to the English Statute, 5 Richard II. The Statute 5 Richard II might have been passed in order to cure certain mischief different from the object of Section 74 of the Criminal Code, they both indeed fulfill the same purpose. The effect, in our view, is the same. The object in each case is to prevent breach of the peace. He who is in actual and peaceful possession, even if he was originally a trespasser, must not be ousted from the land with unreasonable force by a claimant, no matter if the claimant be the rightful owner; there must be a recourse to the law or the courts (Italics mine for emphasis).

It is clear therefore that the law in this country is similar to the law in England. The law protects a person, such as the applicant, who is in physical and peaceful possession with a claim of right. Only the courts can order his ejectment. It stands to reason therefore that when the respondent decided to eject the applicant, vi et armis, and without any order of court they were breaking the law of the land.

The applicant’s case is stronger than the ordinary case of forcible entry in one important respect: he claims that he has a right to live in the premises and at the time the respondents entered upon it from the 13th to the 19th of October, 1985, to eject him, he had still pending in court a suit in which he is asking the court to declare that the decision of the respondent to eject him is unlawful, illegal and ultra vires the respondents and to make an order of injunction to restrain them from ejecting him and members of his family from the house in dispute. His counsel has submitted before us that the action of the respondents in this respect is not only a usurpation of the judicial powers vested in the courts by Section 6(6)(b) of the 1979 Constitution but also improper and a contempt of court. The respondents’ counsel’s submission is that they were entitled to and did resort to self-help by ejecting a trespasser. Learned counsel for the applicant, on the other hand, submitted that the remedy of self-help against a trespasser is not available once the matter is pending in court and there is a claim or a motion for injunction.

I shall now examine these conflicting contentions. Now Section 6(6)(b) of the 1979 Constitution provides as follows:

“6(6) The judicial powers vested in accordance with the foregoing provisions of this section

(b) shall extend to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”

Of this provision, Nnamani, J.S.C. said in Senator Abraham Ade Adesanya v. President of the Federal Republic of Nigeria & Anor. (1981) 5 S.C. 112, at p.187:

“Section 6(6)(b) to my mind encompasses the full extent of the judicial powers vested in the Courts by the Constitution.”

In my view, a necessary corollary of this provision in the context of the separation of powers enshrined in our Constitution is that once a matter is submitted for adjudication by a court in due exercise of the judicial powers vested on it by the above provision, the executive should not interfere until the judicial decision has been made, particularly where that executive interference will have the effect of pre-empting or anticipating the decision of the Court.That this is the case in England is shown by the decision of the English Court of Appeal in Daniel v. Ferguson (1891) 2 Ch. 27. Kay, L.J. in the short judgment at p. 30 said:

“The question to be decided at the trial may be of some nicety; but this is not the time to decide them. After the defendant had received notice on Saturday that an injunction was going to be applied for, he set a large number of men to work, worked all night and through nearly the whole of Sunday, and by Monday evening, at which time he received notice of an interim injunction, he had run up his wall to a height of thirty-nine feet. Whether he turns out at the trial to be right or wrong, a building which he has erected under such circumstances ought to be at once pulled down, on the ground that the erection of it was an attempt to anticipate the order of the Court. To vary the order under appeal could hold out an encouragement to other people to hurry on their buildings in the hope that when they were once up the Court might decline to order them to be pulled down. I think that this wall ought to be pulled down now without regard to what the result of the trial may be. The appeal will therefore be dismissed.”

It will be observed that the wall was pulled down not because any injunction had been applied for or granted but because an action was contemplated and notice thereof given to the defendant; so the quick and clandestine construction of the wall to a height of nearly forty feet was designed to anticipate the decision of the Court. In the instant case an action, including a claim for injunction was actually pending. Also, in Von Joel v. Hornsey (1895) 2 Ch. 774, there was a similar situation as in Daniel’s case (supra). The plaintiff had warned that he would restrain the defendant from rebuilding his nearby house to such a height as to obstruct the ancient lights of the plaintiff’s house. After the action was brought the defendant evaded service of the writ for several days, and in the meantime employed extra labour and built the wall night and day to a great height. He was later served by substituted service. When an interlocutory injunction was eventually applied for, not only was it granted but also a mandatory injunction was granted ordering the defendant to pull down so much of the building as had been erected after the plaintiff had warned him (defendant) that he intended to bring the action.

The Court of Appeal held that the principle in Daniel v. Ferguson (supra) applied, and confirmed the orders made. It is therefore firmly established in England that a mandatory injunction to reverse a step already taken by a party to a litigation can be granted on an interlocutory application or at the hearing where a defendant attempts to steal a match on the plaintiff such as where an action or an application for injunction is pending, or where on receipt of notice than an injunction is about to be applied for, the defendant does anything intended to foist upon the other party and the court a fait accompli. See also on this Vol. 24 Halsbury Laws of England (4th Edn.) pp. 534-535; also Esso Petroleum Co. Ltd. v. Kingswood Motors (Addlestone) Ltd. (1974) 3 All E.R. 1057 at p. 1069. That this principle now enjoys universal acceptance in at least one other country of common law jurisdiction is shown by a number of cases in which the principle in Daniel v. Ferguson (supra) and Von Joel v. Hornsey (supra) have been followed and applied in the United States. See for examples see Clark v. Martin 49 Pa. 289, 298-299; Cooke v. Boynton 135 Pa. 102, 19A-944; Turney v. Shriver 269 III. 164, 172, 109 N.E. 708; and Konig v. Baltimore 126 Md. 606, 627, 85 A.478. In J. Edward Jones v. Securities & Exchange Commission 80 L.Ed. 298 U.S. 1-33, 1015-1235 the Supreme Court of the United States had to deal with a situation which has a number of parallels with the instant case. It was a case between a private individual and a government agency which had due notice of the action; an action was pending in which an injunction was claimed; a temporary injunction had been refused; the defendant Commission took a step calculated to pre-empt and prejudice the decision of the Court. The Supreme Court of the United States affirmed an order of the District Court of the United States for the Southern District of New York and the United States Circuit Court of Appeals for the Second Circuit reversing the action of the defendants. The law applied is succinctly set out in Head note 2 at p. 1022 thus:

“The conclusion to be drawn from all the cases is that after a defendant has been notified of the pendency of a suit seeking an injunction against him even though a temporary injunction has not been granted, he acts at his peril and subject to the power of the court to restore the status, wholly irrespective of the merits as they may be ultimately decided. 1 High, Inj. 4th Ed. Art 5(a)”

I should note, too, that at p. 1021 the court expressly approved and followed the principle in Daniel v. Ferguson (supra) and Von Joel v. Hornsey (supra). There can be no doubt that if the principle of these cases is applicable in Nigeria, I should order a reversal of the steps taken by the respondents to evict the applicant during the pendency of the substantive suit.

Does this principle therefore apply in Nigeria? Decisions of the Courts of the United States are not binding on our courts. They are of persuasive authority only.

Decisions of Superior English Courts on principles of the common law before 1900 are, subject to local legislations and binding decisions of our courts to the contrary, applicable in our courts. Section 13 of the High Court Law of Lagos State and Section 45 of the Law (Miscellaneous Provision Act, Cap. 89 of 1958, expressly enjoin the court to apply such principles. In my opinion the principle in Daniel v. Ferguson (supra) and Von Joel v. Hornsey (supra) are part of our law.

Mr. Alabi has tried to justify the eviction on the ground that the applicant had unsuccessfully applied for an order of interlocutory injunction. He further submitted that this was a case in which the main issue was decided in the decision of the interlocutory injunction in that the applicant was not only refused the order he sought but was also adjudged a trespasser. I must pause here to observe that the learned counsel cited no authority for his novel submission that an issue in a substantive action could be decided in an interlocutory injunction. On the contrary the case of John Holt Nig. Ltd. v. Holts African Workers Union of Nigeria & the Cameroons (1963) 1 All NLR 379, which counsel cited on another aspect of this ruling decided at p. 383-384 that where an application for interlocutory injunction involves trying the issue twice, first by affidavit in an interlocutory injunction and secondly by evidence in the main case, the correct procedure is not to proceed with the application for interlocutory injunction but to accelerate the trial of the main case by fixing it for trial.

Moreover, it is settled that the standards of proof for entitlement to relief at the two stages of the proceedings are not the same: in the application one is required to only show a prima facie case or that there is a serious issue to be tried at the hearing, and that there is a probability that he will succeed at the hearing; at the hearing the one is expected to prove his case beyond a balance of probability. See Webber George Egbe v. Peter Onogun (1972) 1 All NLR 95. In the circumstances to argue that such issues for determination at the trial were decided in an application for interlocutory injunction is fallacious.  I agree with the opinion of the Supreme Court of the United States in J. Edward Jones’ Case (supra) and will follow Daniel v. Ferguson (supra) and Van Joel v. Hornsey (supra). I am of the view that the fact that the applicant had unsuccessfully applied for interlocutory injunction does not entitle the respondents, without any further order of court, to resort to self-help and eject the applicant, vi et armis, while his case in terms set out above, is still pending. Refusal of the applicant’s application for interlocutory injunction is one thing, and a valid order of court empowering the respondents to act as they did is quite another.

I should next consider the right of the respondents to resort to self-help in the circumstances of this case. The applicant went to court with a claim of right on the grounds I have mentioned. He sued the defendants for a declaration that the respondents had no right to evict him and for an injunction. The main case is still pending. He was physically present in the house in the property when the evictors came and without any order of court, with a strong force of armed men evicted him and, subsequently, in several lorry loads carted away his personal effects for some five days running. The question is whether the respondents could then properly claim that they were exercising their right of self-help. The case of Hemmings & Wife v. Stoke Pages Golf Club Ltd. & Anor. (1920) 1 KB. 720 which was heavily relied upon by the learned counsel for the respondents is not helpful to them. First, unlike this case, there was no action pending in court at the time the club resorted to self help. Secondly: the court found that the club used no more force than was necessary to remove the plaintiffs: one cannot say so under the threat of some one-hundred and fifty armed men. Thirdly, as the 1st plaintiff in that case held the premises under a servient tenancy from the club in consideration of his employment by them he lost every claim to a right to remain in the house after the termination of his employment: in the instant case the applicant claims to have the right to remain in possession, rightly or wrongly, and had taken the issue of rightness or wrongness of those claims to court. In my view the right of the respondents to resort to self-help, if it would ordinarily have been available to them (for which see Browne v. Dawson (1840) 12 Ad. & El. 624), was lost the moment the applicant turned the issues over to the court for adjudication. If it were otherwise, it would have been a usurpation of the judicial powers of the court vested by Section 6(6)(b) of the 1979 Constitution. Also as ground 1 of the proposed grounds of appeal assumes the validity of the Abandoned Property Edict, I agree with Chief Williams that there is no question of its being challenged. So the case of K. S. Uwaifo v. Attorney-General of Bendel State (supra) and S.6(6)(d) of the Constitution are irrelevant. Every court guards its powers jealously and will not allow matters pending before it to be unilaterally taken away by any of the parties before it to be settled its own way, extra-judicially. Indeed the case of G. A. Adesida v. Nimota Abebi (1978) 2 FCA. 109, cited by the learned counsel on both sides at page 116 recognized the fact that even where self-help is available it is not a course to be encouraged by court. I should here repeat a portion of the judgment of Denning, M. R., in McPhail v. Persons (Unknown) etc. (1973) 3 All E.R. 393, at p. 396 where he said:

“Although the law thus enables the owner to take the remedy (i.e. self-help) into his own hands, that is not a course to be encouraged. In a civilized society, the courts should themselves provide a remedy which is speedy and effective; and thus make self-help unnecessary. The courts of common law have done this for centuries. The owner is entitled to go to court and obtain an order that the owner “do recover” the land, and to issue a writ of possession immediately.

So it should have been in this case. In my judgment the right to self-help ended when the issues were turned over to the court. In Attorney-General v. Times Newspapers Ltd. (1974) AC. 273, the House of Lords, while discussing the requirements of due administration of justice, per Diplock, L.J., at p. 309, said inter alia as follows:

“… Once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court.”

I agree with this opinion. They ought not, while the matter was pending for determination by a court of law have resorted to self-help or acted without getting the necessary order of court.

Before I conclude, I must confess that I do not see how the learned counsel for the respondents can rightly argue that the order made does not foist a fait accompli on the court or that society should be protected from powerful men like the applicant. One may ask, what will happen if the possible event of the applicant who has been ejected without an order of court, succeeding at the trial occurs. Can he be sufficiently compensated for his eviction from his home by any award of damages. Also he has not been proved to have done anything in the whole affair which could be remotely regarded as a show of power. He merely clung to what he believes to be his right and turned the issue over to the courts for determination. The converse is clearly the case with the other party. Where a government such as the Lagos State Government under the present dispensation decides to up-hold the rule of law and societal justice to all, its laudable determination will certainly be difficult, if not impossible, to implement unless its principal advisers and functionaries are prepared to go along with it. This is why it is a matter for serious regrets that the learned counsel for the respondents should without any grounds turn round to ask for protection for society from men like the applicant. For, a government which has, to the welcome joy of all expressly avowed its determination to uphold law and order as well as human rights and dignity the importance of its getting correct and uninhibited legal advice, free from bias and sentiment, cannot be over-emphasized.

The applicant succeeds on the two grounds on which he seeks to be restored to possession.

In the result, I hereby grant:

(i) To Ojukwu Transport Limited, the Party Interested leave to appeal against the decision of Omotosho, J., given in a Lagos High Court on the 11th of October, 1985; and

(ii) Pending the determination of the appeal of the applicant against the said decision, against the respondents and in favour of the applicant an order of mandatory injunction restoring the applicant to his residence at No. 29, Queen’s Drive, Ikoyi, Lagos, and restraining the respondents and all their officers, servants, agents and functionaries from evicting or taking any steps to evict the applicant from his residence at No. 29 Queen’s Drive, Ikoyi, Lagos.

I assess costs in favour of the applicant in the sum of N150.00. I make no order for costs in favour of the Party Interested.

Other Citations: (1985) LCN/0015(CA)