Chief Nta Sam Uket V. Chief Michael Okon Okpa (2005)

LawGlobal-Hub Lead Judgment Report

THOMAS, J.C.A.

This is an interlocutory appeal against the ruling of Ugep High Court of Justice, Cross River State in suit No. HUG/MISC/10/2003 delivered on 14th July, 2003.

The present appellant was the plaintiff/applicant at the lower court in which he filed a motion on notice for:

“An order of interlocutory injunction restraining the defendant/respondent from whether by himself, his servants, workmen, agents and assigns or otherwise howsoever from entering or doing anything inconsistent with the rights of the plaintiff/applicant on the parcel of farmland known and called Kepontamse amon vema abo Mbang ofor and bounded by the parcels of land of Obal Enang Effiom, late Mbang-Ofem, Usang Egu Edet and Ikoi Mbang and equally demarcated by “yetete” trees, until the determination of the substantive suit.” (italics mine)

The above application for reliefs and the supporting 16 paragraphs affidavit was filed, and later, a reply to the counter-affidavit was also filed on 20th March, 2003. Relevant paragraphs will be considered later.

The defendant/respondent’s counter-affidavit of 18 paragraphs will be considered later.

The learned trial lower court heard arguments proffered by the parties in respect of the motion and the supporting and counter-affidavits and reply. Then in the ruling, the reliefs sought was refused and dismissed.

The plaintiff/applicant then applied and was granted leave to appeal. He filed on time, dated 29th July, 2003. He filed three grounds of appeal from which four issues have been formulated for consideration of the appeal.

Appellant’s issues read thus:

Issues

“Whether from the totality of the affidavit evidence of the appellant, the appellant has met the conditions for the grant of an order of interlocutory injunction in his favour.

Whether the appellant has described or identified the subject matter of his application with certainty as to have an order of interlocutory injunction in his favour.

Whether from the affidavit evidence of the respondent, the respondent was able to establish a link between the farmland on which he had judgment in suit No. YDC/85/89 exhibit K in the respondent counter affidavit and the farmland – the subject matter of this action for which the appellant prayed for an order of interlocutory injunction.

Whether the trial Judge properly exercised his discretion judicially and judiciously in refusing the grant of the interlocutory injunction. “

The respondent in his own wisdom formulated a single issue for determination of the appeal and it reads as follows:

“Whether on the totality of the affidavit evidence before the lower court, the refusal by that court of the application for interlocutory injunction could be said to amount to or constitute an improper exercise of judicial discretion?”

From the notice of appeal at page 36-37 of the record, the appellant filed three (3) grounds of appeal but to my utter surprise, his same counsel formulated four (4) issues for determination as reproduced above. It is trite law that multiple issues for determination cannot be distilled from fewer or single ground(s) of appeal. It is offensive for an appellant or respondent to formulate more issues than the number of grounds of appeal. See Ogunbiyi v. Ishola (1996)38 LRCN 824, 830; (1996) 6 NWLR (Pt.452) 12. There is no doubt that the appellant’s four issues for determination are proliferated from the three grounds of appeal and therefore some of them are incompetent. Not only that, appellant’s counsel has stated in their briefs which issue is related to which ground of appeal. For example, at page 5 of the appellant’s brief, it is stated that issue one is “consistent with ground one of the grounds of appeal and issue number one for determination”; that at page 9 of the brief, issue number two is not related to any grounds of appeal; that “issue number three (3) relates to ground two and three”; that at page 11 of the briefs, “issue number four (4) relates to ground one of the grounds of appeal.”

I am therefore convinced that the appellant’s issues are proliferated which is offensive and is strongly deplored. Appellant’s issues 1 and 4 being distilled from same ground 1 of the grounds of appeal are hereby discountenanced being incompetent. From the above, the appellant is left to argue only his issue number 3 distilled from which he claims grounds two and three of the grounds of appeal are related. This is what I will consider together with the respondent’s single issue as their own arguments in determination or the appeal.

Having ascertained the relevant issue to be determined in this appeal, I observed however to note, that, the appellant by then had appeal, first filed a motion ex-parte for interlocutory injunction, but the trial court refused to hear the application ex-parte, and ordered that the respondent be put on notice which was complied and hearing was then adjourned to 20/03/03. See pages 2 – 6 and 7- 9 of the record showing the ex-parte motion and identical motion on notice and supporting affidavits of the plaintiff/ appellant. The respondent’s 18 paragraphs counter-affidavit filed 18/03/03 is found at pages 13 – 14 of the record.

As earlier stated, the remaining surviving issue of the appellant is issue 3 where it is stated as whether from the affidavit evidence of the respondent, he had established a link between the farmland of which he has judgment in suit No. YDC/85/89 – Exhibit K at the farmland – the subject matter of this action.

In his brief argument, the appellant contends that the respondent was unable to relate the farmland upon which he had judgment in exhibit K with the farmland the appellant had applied for interlocutory injunction. Appellant referred to paragraph 8 of the counter-affidavit of the respondent. That the lower court had relied on exhibit K in supporting the respondent that he was in possession of the farmland. That there is no relationship between the land in exhibit K and the land in appellant’s application. That there was no clear boundaries in exhibit K to enable the lower court to ascertain its resemblance with the appellant’s land in his application. That despite paragraphs 7, 8 and 9 of the respondent’s counter-affidavit, he could not describe the land in exhibit K. That the appellant had expected the lower court to compare the parties’ different lands to identify their clear differences, but the court failed to do that. That the appellant had indicated at paragraphs 1 and 2 of his reply affidavit at page 18 of the record of appeal, that Kepontam farmland is a large expanse of farmland where many paternal families and individuals in Ekori own farmlands and that the respondent and the appellant do not share a common boundary.

The appellant further conceded that a judgment of a Native Court is as valid as that of any other court but yet by using a Native Court judgment as a weapon of offence or defence in a practical forensic contest in a Court, the successful party may sometimes know that the weapon has a potential weakness, that in the matter in dispute between them, the respondent needs a good deal to identify the precise boundaries and features of the land in exhibit K to which the former judgment relates and learned counsel for the appellant referred to the case of Adomba v. Odiese (1990) 1 SCNJ 135, 137 r 6, 8; (1990) 1 NWLR (Pt.125) 165.

Learned appellant’s counsel further contended that the appellant had met all the requirements for the grant of the order of interlocutory injunction in his favour and yet the lower court erroneously dismissed his application. He finally referred to paragraphs 13, 15, 16, 17 and 18 of the respondent’s counter-affidavit at page 13 of the record, and submitted, that the paragraphs can not ground the reason for denying the appellant the right to injunction, and the maintenance of the status quo ante. That the afore-said counter-affidavit paragraphs, are mere allegations which would amount to enter into a discussion of their determination by entering into deciding the substantive action.

The brief of the respondent is articulated in his single issue which reads:

“Whether, on the totality of the affidavits evidence before the lower court, the refusal by that court of the application for interlocutory injunction could be said to amount or constitute an improper exercise of judicial discretion?”

Respondent’s contention is that a court, before which an application for interlocutory injunction is made, has to satisfy itself not only that there is a serious question to be tried at the hearing, but that the facts discloses a reasonable probability that the applicant will be entitled to the relief sought. That though the court must not decide the substantive suit, it must allow interplay in its mind, on the relative strength of the parties’ cases. That where by that, an applicant’s case is pregnant with frivolity or vexation, his application is defeated. Respondent’s Counsel relied on the cases of Ogbonnaya v. Adapalm (1996) 6 SCNJ, 23; (1993) 5 NWLR (Pt.292) 147; Falomo v. Banigbe (1998) 6 SCNJ, 42; (1998) 7 NWLR (Pt.559) 679; Kpogban v. Ojirigho (2000) 1 NWLR (Pt.640) 212.

Counsel further submitted that an applicant for prospect of success for his relief is to ascertain the property in question which is to avoid collision with judicial powers of the court. Case of Madubuike v. Madubuike (2000) FWLR (Pt. 30) 2611 at 2620; (2001) 1 NWLR (Pt.719) 698 paragraphs F – G was relied upon. The respondent further contended that the appellant’s affidavit evidence paragraph 14, merely talked of the land as farmland, and that he further compounded his paragraph 3 in support as farmland, situate at Ekori town, that by all standards of English language, a town means a place with many houses, shops and other buildings. He referred to Oxford Advance Learners Dictionary, Special Edition page 1265. That even though, the appellant tried to wriggle out of his description, the applicant, by disagreeing vide paragraph 2 of his reply affidavit at page 18 of the records, with the description proffered by the respondent in paragraph 9, inhibited himself from relying on the respondent’s description that the subject matter was situate at Esekati farm road, and not at Ekori town. That in the final analysis, the appellant had failed to ascertain the area in his application for the interlocutory injunction. That since in law, an injunction order cannot be made over an unascertained land in the subject matter, the lower court’s refusal was right – That the appellant had fallen far short of establishing a cognizable legal right as stated in the case of Odumeru v. Adenuga (2000) 12 NWLR (Pt. 682) 466.

That it would not be enough to claim inheritance and participation in the conflicting and inconclusive manner of the appellant’s paragraph 4 in support and paragraph 3 of the reply affidavit at pages 8 and 18 respectively of the records, but that rather, it was the respondent who showed clearly a conclusive recognizable legal right at page 12 paragraphs 5, 6 and 7 of his counter-affidavit. That the legal right is supported by his exhibit K – judgment’s decision in the case of YDC/85/89.

The appellant’s relevant affidavit evidence in support of his interlocutory injunction are paragraphs 3, 4, 5, 7, 9, 10, 13, 14, 15 and 16. They read as follows:

“3. That the farmland, the subject matter of this action situate at Ekori town and is known and called “Kepontam se amon Yema obo Mbang Ofor.

That the parcel of farmland the subject matter of this suit was inherited from my father Sam Uket Etah by me on his death in 1976.

That at the time that is, in 1976 I was still serving in the Nigerian Army whereof I allowed my late father & wives and relatives to farm on the farmland.

That my bother Arikpo Sam Uket equally farm on the said farmland until 1992 when I came home after my retirement from the Nigerian Army.

That I cultivated part of the land as usual in 2000 and 2001. To this day my cassava crops are on the land.

That on this year’s planting season that is, 2003 I have cleared the farmland and prepared mounds on it preparatory to planting crops thereon. This was on the 13th March. 2003.

That the defendant on the 13th March, 2003 met me at my residence in Ekori at about 6p.m. when I came back from my farm and warned me say among other things that I should never step on the farmland that the farmland belongs to him.

That should the defendant/respondent be allowed to destroy my crops and scatter my mounds 1would suffer irreparable losses that cannot be paid for monetarily as and my family would have nothing to feed. Moreso, if he prevents me from continuing with my farm as usual on the land, being that I have been farming on this land several years ago.

That the farmland is known as Kepontam se amon yema Obo Mbang Ofor and bounded by parcel of land of Oboi Enang Effiom, late Mbang Ofem, Usang Egu Edet and Ikoi Mbang and equally demarcated round by yetete trees planted by my father.

That I was born to meet my father farming on the farmland in dispute for over 50 years.

That I undertake to be bonded in damages if at the end it is found that this suit is frivolous.” The respondent’s relevant counter-affidavit are paragraphs 3, 4, 5, 6, 7, 8, 9, 13, 14, 15, 16, 17 and 18 and they read thus:

“3. The plaintiff’s grand father was one late Uket who begot:

Nta Uket – the father of Usang Nta Uket the present head of the plaintiff’s family;

Ibor Uket – the father of Ofem Ibor Uket (defendant in suit No. YDC/85/89 which suit I was the plaintiff; and

iii. Sam Uket – the father of Chief Nta Sam Uket (the plaintiff).

Elder Igiri Sam Uket (the eldest son of the plaintiff’s father), Uket Sam Uket (next eldest son of the plaintiff’s father) and even Chief Usang Nta (the man in control of plaintiff’s family’s farmlands in Ekori) do not lay claim to the subject matter as they, like the plaintiff, know that it belongs to my Okoi Okpa paternal family.

The man who founded the subject matter (by deforestation) was late Inah Ibor who at his death was succeeded by his son – Okoi Ibor.

Okoi Ibor was succeeded by Chief Okpa Okoi (my grand father) who died in 1952 and was succeeded on the subject matter by my father -late Chief Okoi Okpa who as a youth coming up I started accompanying to his farms on the subject matter as early as 1965.

In 1989 while my father was flat on his back in sickness, Ofem Ibor Uket the paternal brother of the plaintiff trespassed into the subject matter and with the consent of my father I instituted an action against him at the Yakurr District Court in suit No. YDC/85/89.

After a full hearing of the matter, judgment was given in my favour and consequently at the death of my father within the same period, my/paternal family left the control and management of the subject matter in my hands as the oldest male child in Okoi Okpa paternal family and I have since then been in actual and peaceable possession of the same relevant parts of those proceedings are attached/marked exhibit K.

The subject Matter is situate at Kepentam farmland along Esekati is bounded in the North by Chief E’nang Effiom land (one of my witnesses in suit No. YDC/85/89); South by Ofor Mbang (the father of the plaintiffs wife and another of my witnesses in suit No. YDC/85/89); East by Yatebo maternal family land controlled by Usang Egwu Edet; West by Ibor Uket; South/South by Sam Uket and North/East by Mbang Ofem (the other of my witness In suit No. YDC/85/89). the 1990.

During the 1990, 1991, 1992 and 1993farming seasons, I granted yearly leases of the swampy part of the subject matter to Chief Effiom Obeten Okpa.

In early 2001, for the first time, the plaintiff forcibly entered and cleared part of the subject matter for cultivation without my authorization and in exercise of my acts of ownership and possession, I reported his conduct to the Police.

After a careful investigation of the complaint including my title, the plaintiff was arraigned at the Chief Magistrate Court, Ugep in Charge No. MUG/23C/2002 and when he was discharged, I filed an appeal at the High Court of Justice, Ugep that is still pending.

While the said appeal was still pending, in January/February, 2003 the plaintiff again without my authorization entered the subject matter, cleared and destroyed my bush mango and citrus thereat.

When I reported this his conduct to the Police, in the DPO’s interview of the 28th of February, 2003 he was restrained from continuing the clearing for the purpose of maintaining the peace while a visit to the scene of crime and a further DPO interview was fixed for the 4th of March, 2003.

Against Police security restraint, on that 4th March, 2003 the plaintiff was rather met in the subject matter clearing and making mounds aided by his wife – Justina; his son- David; hired labour – Saturday Obeten Obono and two others.

Before the plaintiff’s complained conduct of 4th March, 2003, the plaintiff had used one Ekpo Eyu to carry out further clearing of the subject matter and when on the 7th of March, 2003 he continued in those his acts of trespass, he was arraigned at the Chief Magistrates Court, Ugep in Charge No. MUG/22/C/2003.”

The respondent’s further contention is that, the appellant, also failed at the lower court, because he could not establish a peculiar object of preserving the existing status quo as was decided in Udeze v. Ononuju (2001) FWLR (Pt.43) 370, 384; (2001) 3 NWLR (Pt.700) 216. That the failure to have the status quo was because his paragraphs 4 – 10 of his affidavit evidence clearly show he had conceded that his acts of possession from 2000 – 2002 was the time which coincided with paragraphs 13-18 of the counter-affidavit of the respondent and therefore, the appellant’s purported period of possession amounts to acts of trespass, hostilities or forcible entry for which the respondent warded him off by prosecuting him by the police at Chief Magistrate Court. The respondent submitted that in law, what the appellant prayed for maintaining the status quo were I circumstances created by the appellant himself namely acts of trespass, acts of hostilities or forcible entry; and therefore it could not grant him an application for interlocutory injunction. Counsel relied on case of Madubuike v. Madubuike (2000) FWLR (Pt. 30) 2611 2619; (2001) 1 NWLR (Pt.719) 698; Manya v. Idris (2000) FWLR (Pt.23) 1237, 1251; (2001) 8 NWLR (Pt.716) 627.

Learned counsel for the respondent, further submitted that it is settled law that where two parties claim to be in possession of land, the law ascribes possession to the one with better title and relied on Odubeko v. Fowler (1993) 9 SCNJ (Pt.2) 185, 198; (1993) 7 NWLR (Pt.308) 637. In his final conclusion, the respondent contend that the appellant’s conduct was reprehensible and his delay in bringing his application for injunction was rightly refused and his counsel referred to case of Ihunde v. Samson Roger (Nig.) Ltd. (2000) FWLR (Pt.16) 2782, 2791, and that on the balance of convenience the application was dismissed and he urged the appellate court to dismiss this appeal.

I have carefully considered the motion on notice, including the supporting affidavit evidence of the plaintiff/applicant and his reply, as well as the counter affidavit evidence of the respondent, including their brief arguments.

It is well established by the Supreme Court that there are golden principles before determining whether or not to issue an order of interlocutory injunction applied before a court. These important issues to be considered are as follows:

(a) the applicant’s real prospect of success in the res claimed.

(b) balance of convenience of the parties before the court.

(c) maintenance of status quo ante bellum.

(d) the relative strength of the case of the parties before the court.

(e) conduct of the parties.

(f) inadequacy of payment of damages.

The above six cardinal points ought to be considered before a trial court and it include appellate court where a trial court has failed to consider the above stated principles in an interlocutory injunction on application. See Supreme Court’s decision in Falomo v. Banigbe (1998) 7 NWLR (Pt.559) 679, 694 para. G – H.

See also the decision of this Court in Incar (Nig.) Plc. v. Bolex Ent. (Nig.) Ltd. (1996) 8 NWLR (Pt.469) 687, 700 – 701 para. D – D.I have carefully considered the ruling of the lower court in which the appellant’s application for interlocutory reliefs was dismissed and I found that the lower court had properly applied the golden principles stated above in a meticulous manner.

The learned trial Judge, did not first consider exhibit K alone being the judgment in favour of the respondent, he went further and considered the appellant’s prospect of success, balance of convenience, maintenance of res as status quo ante bellum, the relative strength of both parties as well as the conduct of the appellant as per the counter affidavit evidence of the respondent. The learned trial Judge considered the issue of identity of the land as contended by the appellant and he found that the respondent had clearly identified the land in dispute as identical with the land in which he was granted against a relation of the plaintiff/appellant at the Native District Court – exhibit K.

It is trite law that the court does not form the habit of depriving a successful party the enjoyment of the fruits of his judgment. I am therefore not going to deprive the respondent by denying him the fruit of his judgment which was delivered in suit No. YDC/85/89 by granting the appellant reliefs for interlocutory injunction which was properly refused and dismissed by the trial court. Moreover, in order to deprive the successful party, the applicant must show the strength of his possession which he woefully failed in his affidavit evidence. His possession was for a short period of 2000 to 2003 which was in fact a trespass, and that conduct of trespass, was reprehensible which in turn, involved the police for peaceful maintenance of peace.

In Akapo v. Hakeem-Habeeb (1992) 6 NWLR (Pt. 247) 266, 303-4 Nnaemeka Agu (JSC) clearly stated that:

“One of the situations that the law of injunction is designed to combat, is to arrest a fait accompli which a respondent in an application for interim or interlocutory injunction has attempted to foist on the circumstances of the case, as for example, by forcibly taking over the management and control of the subject matter of the substantive case from the applicant before the action on the application has been commenced.”

In the case at hand, it was the appellant who filed his writ, claiming a declaration that the land belongs to him and then even before filing his statement of claim, which is yet to be done, same appellant filed motion for interlocutory injunction and no doubt, it was because of his frivolous trespass which was successfully rebuffed by the respondent through reports to the police and subsequent prosecution at the Chief Magistrate’s Court as per his counter-affidavit evidence which was not rebuffed properly by the appellant in his reply brief.

In the final analysis, the appeal is unmeritorious and my ruling is that the appeal is dismissed. I can not fault the finding of the lower court and that ruling is therefore affirmed. I award cost of N5,000.00 in favour of the respondent against the appellant

Other Citations: (2005)LCN/1756(CA)