Chief Mene Kenon & Ors V. Chief Albert Tekam & Ors (1989)

LawGlobal-Hub Lead Judgment Report

OMOSUN, J.C.A.

This is an application by the defendants/appellants asking for the following prayers:

1.An order that the judgment of the High Court of Rivers State, Bori to wit; the order of perpetual injunction restraining the appellants/applicants be stayed pending the final determination of the appellants’ appeal to the Court of Appeal.

OR

An order suspending the operation of the order of perpetual injunction restraining the appellants made by the High Court of Rivers State, Bori on 11th July, 1988.

2. An injunction restraining the plaintiffs/respondents either by themselves, their servants, agents or privies from with or otherwise interfering in any manner whatsoever with the enjoyment by the appellants of the land in dispute in this case pending the final determination of the appeal, against the judgment of the High Court of Rivers State, Bori delivered on 11th July, 1988. Chief Mene Kenon, the 1st defendant/applicant deposed to an affidavit in support of the motion. He says he has the authority of other applicants to depose to the affidavit. He said on 11th July, 1988, the Bori High Court dismissed their claims in suits No. PHC/9/70 and PHC/113/72 (consolidated).

The said court granted the claims of the respondent and made an order of perpetual injunction against the appellants Ex “A” is a certified true copy of the judgment. They are dissatisfied with the judgment and have appealed against it. Ex “B” is the notice and grounds of appeal. He said the applicants have been living on the land in dispute. Their farms are on the land in dispute. The applicants have no other place to go and live and farm apart from the land in dispute. Paragraph 9 of the affidavit says:

“9.That the applicants are afraid that if the respondents are not restrained by injunction and the order of perpetual injunction made against them is not suspended, the respondents are likely to enter the land in dispute thereby interfering with the enjoyment by the applicants of the said land.”

He stated that the applicants have paid the damages of N500.00 and costs of N400.00 to the respondents. He said an application for stay of execution was made to the court below but it was refused.

There is a counter-affidavit deposed to by the 5th plaintiff/respondent on behalf of himself and other respondents. He admitted paragraphs 1, 2, 3, 4, 10, 11 & 12 of the applicants’ affidavit. He denied paragraphs 5, 6, 7, 8 and 9 of the applicants’ affidavit. He deposed that the judgment of the court is tied to the respondents plan where the area granted to the appellants by the respondents is marked “thick black.” He said that the appellants’ village NWEBIARA is within this area verged “thick black.” That is where the appellants have their residential buildings and farms. He said the respondents are not claiming the said portion from the appellants being an absolute grant from the respondents’ ancestor to the appellants’ ancestor. He said the appellants are not in possession of the area in dispute verged “yellow” in the said plan known as “NOMABON”, “NWEBENTE” and part of “GBORO” as it was their act of trespass that gave rise to this action. He said the respondents have been in exclusive possession of the land in dispute from time immemorial. Their farms and buildings are on the land. They will suffer greater hardship if the application is granted. Paragraphs 12 & 13 of the counter-affidavit are reproduced below:

“12. That the respondents will be prevented from continuing farming on their land and they will also be prevented from living in their residential buildings built on the land which the Honourable court has held rightly to belong to them.

13. That our solicitors told me and I verily believe that the appellants have not shown special circumstances to warrant the grant of their application from their notice and ground of appeal relied upon and also from the facts they are relying upon because the respondents have no intention whatsoever to interfere with the peaceful enjoyment of the appellants’ land known as Nwebiara village which does not form part of the land in dispute.”

He deposed further that the application is brought in bad faith to prevent them from enjoying the fruits of their successful litigation. In his submissions Mr. Omowole said that there are substantial grounds to be argued on appeal. He submitted that the balance of convenience is in favour of the applicants. The grounds of appeal are to be examined microscopically. He cited Agba v. Okogbue (1988) 4N.W.L.R. (Pt.91) 747 at page 753. He said ground 1 raises substantial issues of facts to be canvassed on appeal. He said stay of execution can be granted where there are substantial facts to be canvassed. He said that ground 2 raises the issue of the learned Judge’s failure to visit the locus in quo. He said the trial Judge accepted the respondents’ version of the area in dispute without visiting the locus in quo.

This he submits raises a doubt as to the correctness of the decision. On ground 3 he submits raises the issue of evaluation and perception of evidence of the lower court. The substantial points to be decided are whether the decision is against the weight of evidence and the failure of the effect of the learned trial Judge to visit the locus in quo. He urged that the status quo be maintained. He submitted that equity and fairness are the basis of a stay of execution and emphasised that the balance of convenience is in favour of the applicants. He said applicants will suffer untold hardship if the application is refused. To refuse to grant the application is to debar the applicants from exercising their constitutional right to appeal. He urged us to grant the application.

What are the submission on the other side. They are these. The applicants must show special or exceptional circumstances that the balance of justice is weighted in their favour. The competing rights of the parties to justice must be considered. We are reminded that every case depends on its own facts and circumstances. It is said that not every ground of law is sufficient reason to grant a stay of execution. Mr. Ogunwole submitted that ground I of the appeal is not a ground of law. It is not recondite. It is a ground of fact he says. He submitted that the additional grounds of appeal are grounds of facts. They are not grounds of law we are told. At best they are described as mixed law and facts. He said no one asked for a visit to the locus in quo. The parties filed their plans and the lower court was not in doubt. The appellants’ plan was inaccurate. He submitted that a stay cannot be granted on the grounds of appeal filed.

He submitted that to grant the stay of execution will cause great hardship to the respondents who are in possession. He referred to paragraph, 6 – 13 of the counter-affidavit and said that the hands of the respondents will be tied if the stay is granted. The applicants have their own land. He pointed out that the applicants did not file a further affidavit to challenge the facts in the counter-affidavit. He submitted that the status quo is that of the respondents who have been in possession all the time. He urged us to dismiss the application.