Chief Kalu Igwe & Ors V. Chief Okuwa Kalu & Ors (1993)

LawGlobal-Hub Lead Judgment Report

OGWUEGBU, J.S.C. 

This is an interlocutory appeal against the ruling of the Court of Appeal, Port Harcourt Division delivered on 6th June, 1990. The

appellants herein were plaintiffs in consolidated suit Nos. HU/24/74 and HU/43/74 and the respondents were the defendants. Judgment was delivered in the consolidated suits by the Umuahia High Court in the then Imo State but now Abia State on 23rd June, 1988. The plaintiff’s claim for title, trespass and injunction (HU/24/74) was dismissed while

judgment was given for the defendants for title. N64.800.00 special damages for trespass and injunction (HU/43/74).The plaintiffs appealed to the Court of Appeal. Port Harcourt Division against the decision of the High Court. They also filed a motion on notice in the Court of Appeal praying for the following orders:-

“(a) Stay of execution of the judgment for special damages awarded the respondents in these suits:

(b) Interim injunction restraining the respondents from alienating the land the subject matter of these suits or setting up or erecting any permanent buildings or structures or in any way damaging or wasting same pending the

determination of the appeal against the judgment in these suits dated 23:6:88:”

In a reserved ruling dated 6th June, 1990, the Court of Appeal granted the stay of execution of the judgment for special damages and dismissed the prayer for interlocutory injunction pending the determination of the appeal. The plaintiffs being dissatisfied with the ruling, brought this appeal. The plaintiffs/appellants filed three original grounds of appeal along with their notice of appeal. The first two grounds of appeal were struck out hence they filed three additional grounds of appeal with the leave of this court granted on 27th April, 1992. The appellants filed their brief of argument on 13th December, 1991 and the same was served on the defendants/respondents. The respondents filed no brief of argument despite the fact that they were granted an enlargement of time to do so. Two questions were submitted for determination in the appeal by the appellants:

(1) Whether the Court of Appeal was right in holding that the appellants have not appealed against the dismissal of Suit No. HU/24/74 in which they (the appellants) were plaintiffs and consequently would not have a declaration of title in their favour if the appeal were allowed;

(ii) Whether there were not such special circumstances as would warrant the preservation of the res and the grant of an order of interlocutory injunction pending the determination of the appeal.”

The first issue is covered by the first two additional grounds of appeal and the second issue is covered by the remaining original ground of appeal and the third additional ground of appeal. When the appeal came up for hearing on 18th January, 1993, Mr. R. Nnanna- Kalu appeared for the respondents. He informed the court that he was holding Chief K.

K. Ogba’s brief and that Chief K.K. Ogba was to be led by Chief F.R.A. Williams (S.A.N.). He further told the Court that Chief F.R.A. Williams (S.A.N.) informed him that morning that he had not filed the respondents’ brief of argument. He therefore applied for adjournment. There was no application for enlargement of time to file the respondents’ brief. The application for adjournment was refused and the Court proceeded to hear the appeal on the appellants’ brief of argument. Chief Onyiuke (S.A.N.) relied on the appellants’ written brief on 13/12/91. He made oral submissions as well.

Arguing issue one, he submitted that the appellants were plaintiffs in the consolidated suits. They were plaintiffs in Suit No. HU/24/74 filed by them and defendants in Suit No. HU/43/74 filed by the defendants. He stated that the High Court dismissed the plaintiffs’ claim in Suit No. HU/24/74 and allowed the defendants’ cross action against the plaintiffs in Suit No. HU/43/74. He further said that in the notice of appeal, the plaintiffs appealed against the whole decision of the learned trial Judge and the relief which they sought is that judgment be entered in their favour. In the said notice of appeal, it was stated in the heading that the suits in respect of which the appeal was lodged were Suit Nos. HU/24/74 and HU/43/74. The plaintiffs in the notice of motion for interlocutory injunction which gave rise to this appeal also stated that the suit numbers in the High Court were Suit

Nos. HU/24/74 and HU/43/74. The learned senior counsel further submitted that in spite of the foregoing, the learned Justices of the Court of Appeal in their ruling on the motion for interlocutory injunction held that the plaintiffs/applicants/appellants did not appeal against the dismissal of Suit No. Hu/24/74.

Learned senior counsel referred to page 99 lines 15-25 where the Court of Appeal stated thus-

”In the present appeal, the defendants (applicants) who are the people of Etitiama had

their action dismissed in Suit No.HU/24/74 against which they have lodged no appeal and Suit No. HU/43/74. They filed no counterclaim. If their

appeal is allowed in the present case, they will not have a declaration in their favour: (italics for emphasis)

It was submitted on behalf of the appellants that the true position is that the appellants were plaintiffs in HU/24/74 and they appealed against the dismissal of that suit.

My answer to issue one is that the plaintiffs/appellants appealed against the whole decision of the High Court of Umuahia in the two consolidated suits (HU/24/74 and HU/43/74). The

heading of the notice of appeal filed in the Court of Appeal reads:-

“IN THE COURT OF APPEAL HOLDEN AT ENUGU

SUITS NO. HU/24/74 AND HU/43/74

(CONSOLIDATED).”

In paragraph two of the notice of appeal it was also stated:- “Part of the decision of the lower court complained of: “The whole” In paragraph four of the notice of appeal it was stated as follows:-

“Reliefs sought from the Court of Appeal:

(a) Allowing this appeal:

(b) Selling aside the judgment dated 23:6:88 against the plaintiffs.

(c) Judgment in favour of the plaintiffs:’ (italics is for emphasis only)

From the time the suits were consolidated, the plaintiffs/appellants in all the papers they filed had set out the two suits as consolidated. This is borne out by the notice of appeal filed against the judgment of the High Court, and the motion on notice for interlocutory injunction in the Court of Appeal which gave rise to the present appeal. In their said notice of appeal, the plaintiffs appealed against the whole decision of Njiribeako, J. sitting at Umuahia High Court and dated 23:6:88. The decision is that in the consolidated suits wherein the plaintiffs’ claim in HU/24/74 was dismissed and that of the defendants in HU/43/74 was allowed. The relief the plaintiffs sought from the Court of Appeal was for that court to allow their appeal against the whole decision of Njiribeako. J. set it aside, uphold their claim in HU/24/74 and dismiss the defendants claim in Suit No. HU/43/74. The above are very elementary statements which are very clear and plain.

I am therefore unable to see how the Court of Appeal in their ruling came to the conclusion that the plaintiffs did not appeal against the dismissal of Suit No. HU/24/74 and that the plaintiffs did not

counter-claim so that at the end of the day, they would not have had the land in dispute declared as their land. The plaintiffs/appellants in Suit No.

HU/24/74 claimed:

(1) Declaration of title.

(2) N100.00 general damages for trespass and

(3) Perpetual injunction.

The defendants in HU/43/74 claimed:-

(1) Declaration of title.

(2) N20,000.00 general damages for trespass;

and

(3) Perpetual injunction. As stated above, both suits were consolidated.

At page two paragraphs 2 of the judgment of the learned trial Judge he said:

“From the pleadings of the parties in both suits, the seven parcels of the land claimed by Etitiama Nkporo people in Suit No. HU/24/74 form one continuous stretch of farm land and cover exactly same area as the two parcels of land claimed by Amaeke Abiriba people in Suit No. HU/43/74: Reading the claims of the parties and the statement of the learned trial Judge. Suit Nos. HU/24/74 and HU/43/74 are cross actions in respect of the same parcels of land.

The reliefs sought by each party are the same except for the differences in the amount claimed as damages for trespass. How come the counter-claim which the Court of Appeal held was not filed by the appellants The Court of Appeal must have come to this conclusion when it erroneously described the plaintiffs as the defendants in its ruling. The Court of Appeal misdirected itself when it held that the appellants did not appeal against the dismissal of Suit No. HU/24/74 brought by them. It was the whole decision in the consolidated suits given by the learned trial Judge that the plaintiffs appealed against which if allowed would decree judgment in their favour and the decision in suit No. HU/43/74 will be set aside. There is no rule of law or practice requiring an aggrieved party in consolidated suits to file two notices of appeal if that is what the Court of Appeal meant in their ruling. The Court of Appeal was therefore clearly in error when it held that the appellants did not appeal against the dismissal of Suit No. HU/24/74 in which they were plaintiffs.

On issue two, the learned senior counsel contended that the Court of Appeal erred in their interpretation of what constituted special or exceptional circumstances and in their application of this to the facts of the appellants’ application. He cited the case of Vaswani v. Savalakh (1972) 12 S.C. 77 at 82-83 where the Supreme Court said:

“When it is stated that the circumstances or conditions for granting a stay should be special or strong we take it as involving a consideration of some collateral circumstances and perhaps in some cases inherent matters which may, unless the order for stay is granted, destroy the subject matter of the proceedings and foist upon the Court, especially the Court of Appeal a situation of complete helplessness or render nugatory any order or

orders of the Court of Appeal, or paralyse, in one way or the other the exercise by the litigant of his constitutional right of appeal or generally, provide a situation in which whatever happens to the case, and in particular even if the appellant succeeds in

the Court of Appeal, there could be no return to the status quo.”

The learned senior counsel submitted that once any of the above circumstances stated above by the Supreme Court had been shown in the affidavit of the appellants, it amounted to special or exceptional circumstance. He said that “it is incontrovertible that once the respondents radically change the character of the land in dispute, this will provide a situation in which whatever happens to the case and in particular even if the appellant succeeds in the Court of Appeal, there could be no return to the statuo quo.”

It was further contended that the land had been used before the institution of the actions as agricultural land and an important motorable road passed through it; that the respondents asserted in open court that they intended to build houses and factories on the land. He submitted that building factories, houses and industrial buildings on the land which was formerly agricultural would amount to radical and irrevocable alteration of the character of the land. We were urged to allow the appeal and make an order of interlocutory injunction restraining the respondents from alienating the land the subject matter of the suits on appeal in the Court of Appeal or setting up or erecting any permanent structure or wasting the same pending the determination of the appeal against the judgment in the consolidated suits dated 23:6:88.

The plaintiffs/applicants filed an affidavit, a further affidavit and a second further affidavit in support of their application for stay of execution and interlocutory injunction. The defendants/respondents filed a counter-affidavit and another counter-affidavit of one Chukwuemeka Onuoha in support of the affidavit of Okuwa Kalu.

The counter-affidavits dwelt more on the prayer for stay of execution of the damages awarded and little or nothing was said to controvert the averments of the appellants in their various affidavits in respect of the prayer for injunction.

For example, in paragraphs 14, 17, 19 and 20 of the affidavit Chief Uka Anya Uwom deposed as follows:

“14. That our solicitor A.U. Onukwue Esq. has informed us and we believe him that there are substantial points of law to be raised on the appeal against special damages.

17. That the defendants have starred to destroy our untarred road built by us about 1936 from Etiti-ama to Umuahia/Ohafia road by digging for stones, sand and gravels on the said road particularly at the Ekike land area.
18. That fresh survey beacons bearing the name of one ‘CHIEF OKAMS’ have now been planted on the land in dispute, particularly at Ugwu Ugbagha land.
19. The whole land in dispute is for farming and we depend on the farming and economic crops and trees thereon for their (sic) livelihood.
20. That the respondents are planning to destroy the economic trees like palm trees thereon in the name of industrialisation.”

In their second further affidavit, the appellants deposed as follows in paragraphs 3, 5 and 6:-

“3. That while this motion is pending we visited the land in dispute early in July this year and noticed that the respondents and their agents or grantees had starred to erect a building on the land in dispute.

5. That despite the said letter they intensified the building operations, and they have now up to roofing stage erected a massive industrial building thereon.
6. That the said building was set up at a great speed and the respondents intend to set up other buildings on the land in dispute, and will not stop unless restrained by court.”

Little or no attempt was made by the respondents to controvert the above averment’ and yet the Court of Appeal stated that the permanent structures are improvements on the land which would revert to the appellants if their appeal succeeds. That was in the face of the averments that the land has been used by the appellants is arable land and they depend on the farm crops and economic trees on this land for their livelihood. The

Court of Appeal also found no special or exceptional circumstances from the above averments of the applicants to warrant the grant of their application.

I agree with the learned senior advocate for the appellants that if the respondents are allowed to continue erecting buildings and factories on the land in dispute, surely, the character of the land will be radically and irrevocably altered and even if their appeal succeeds, there can be no return to the status quo. By the same token, unless the order for stay is granted, the subject matter of the proceedings in this case, the farm land will be destroyed and the appeal will be rendered nugatory if they succeed. See Vaswani Trading Co. v. Savalakh and Company (1972) All N.L.R.922.

The appellants in the court below adduced enough affidavit evidence that the character of the land would be radically changed unless an injunction was granted. The respondents did not counter these averments in any way.

The alteration of the character of the land the subject of litigation is a special circumstances and the court below ought to have granted the prayer for interlocutory injunction.

The primary duty of the court having custody of property the subject matter of litigation is to preserve the res for delivery to persons who ultimately establish their title. See The Zamora (1916) A.C. 77.

Appeals on the exercise of discretion as in this case can be entertained where such exercise by the court below is deemed not to be according to commonsense and according to justice or if there is any miscarriage of justice in the exercise of such discretion. See Odusote v. Odusote (1971) N.M.L.R. 228. Solanke v. Ajibola (1969) 1 N.M.L.R. 253 and Ifediorah & ors v. Ume and ors (1988) 2 N.W.L.R.(Pt.74) 5 . Injustice will arise if the discretion exercised by the Court of Appeal is allowed to stand.

I will therefore answer the second question for determination by agreeing with the appellants’ senior counsel that there were special circumstances to warrant the preservation of the res pending appeal. For the foregoing reasons. I allow the appeal and set aside the ruling of the court below dated 6/6/90 with costs assessed at N1,000,00 in favour of the appellants.

In the result, the application for interlocutory injunction is granted. The defendants/respondents, their agents and or servants are hereby restrained from alienating the land the subject matter of the consolidated suits, setting up or erecting any permanent buildings or structures or in any way damaging or wasting same pending the determination of the appeal against the judgment in the suits dated 23/6/88.

SC.202/1990