Chief P. Kpogban & Ors V. Smart Ojirigho & Ors (1999)

LawGlobal-Hub Lead Judgment Report

TABAI, J.C.A.

On the 18/3/96 at the Ughelli Judicial Division of the High Court of Delta State, this Suit No. UCH/47/96 was filed. In it the Plaintiffs/Respondents claimed four reliefs including:-

(i) A declaration of the Plaintiffs’ entitlement to a grant of statutory right of occupancy over a piece of land;

(ii) A claim for N500,000.00 as damages for trespass on the said land,

(iii) A claim for an order of perpetual injunction restraining the defendants/appellants their agents servants etc from further trespassing on the said land; and

(iv) An order compelling the defendants/appellants to give accounts of the proceeds of that part of land which was the subject matter of suit No. UCH/38/73 and SC/88/83.

On the 24/4/96 a motion for interlocutory injunction restraining the defendants/appellants from trespassing on the land pending the determination of the substantive action was filed. And by a ruling delivered on the 13/3/97, the learned trial judge Akpomudjere J. granted the injunction in the following terms:-

“The defendants, pending the final determination of the above suit are hereby restrained by themselves, servants, agents and/or privies from further trespassing unto that portion of Ogude family land in possession of Odjevwedje arm of Ogbroko Branch. The plaintiffs will enter into a bond for the sum of N5,000.00 against damages.”

Against this ruling and order the defendants/appellants have now appealed to this court. The following four grounds of appeal were filed:-

1. The learned trial judge erred in law when he failed to consider the balance of convenience in granting the application of the appellants.
2. The learned trial judge erred in law when he held that the court having regard to the above is of the view that the plaintiffs have a right to bring the present suit and application.
3. The learned trial judge erred in law when he granted the order of injunction sought on the ground that it was not necessary to exhibit a plan of the land in dispute since both parties to the suit know the land very well and no one was left in doubt about the farm land they both referred to in their affidavit and counter affidavit
4. The learned trial judge failed to exercise his discretion right when he granted the applicants the injunction sought when having regard to the circumstances of the case he should have restrained both parties.

From these four grounds appellants formulated four issues contained at page 2 of the brief of argument while the respondents identified only one. The Respondents’ only issue states:

“Whether in all the circumstances of this case the learned trial judge rightly exercised his discretion in granting an order of interlocutory injunction against the defendant/appellants.”

In my view, all the arguments canvassed with respect to balance of convenience, identity of the land in respect of which the injunction was sought and granted, the question of whether the facts on which the substantive claim was founded were different from those on which the injunction was based can be answered in the all embracing one issue of the Respondent. I would therefore adopt the only issue of the Respondent.

On the question of balance of convenience it was the contention of the appellant’s counsel Dr. Enemeri that before an interlocutory injunction can be granted, the applicant must aver and prove that the balance of convenience is in his favour and where he fails to do this or the court fails to find in his favour, the application must be dismissed. In support of his contention he relied on the following cases: Missini & Others v. Balogun & Others (1968) 1 All NLR 318 at 325; John Holt Nigeria Ltd. & Anor v. Holt African Workers Union of Nigeria & Camerouns (1963) 2 SCNLR 383, (1963) 1 All NLR 379 at 382 – 383; Obeya Memorial Specialist Hospital & Anor v. A-G of the Federation & Anor (1987) 3 NWLR (Pt.60) 325, (1987) 7 SC 52 at 75- 76 and 94; Kotoye v. C.B.N. & Ors (1989) 1 NWLR (Pt.98) 419 at 441; Oniru & Another v. Gbadamosi (1971) 1 All NLR 355 at 358.

He argued that in view of the averments in the counter-affidavit about the appellants being in concurrent possession with the Respondents and their having crops on the land the court ought to have made a finding as to the person in whose favour the balance of convenience lay. Learned counsel submitted that the uncontroverted assertion of the appellant about their being in concurrent possession with the respondents sufficiently met the plaintiffs’ claim to exclusive possession. He drew attention to a contradiction between the mode of trespass alleged in the claim and that alleged in this application for injunction. It was his submission that since the allegation on which the application for injunction was based was allotment of land the named allottees ought to have been joined as parties. Learned counsel further argued that since the defendants/appellants denied knowing the particular portion of the Ogude land for which the injunction was sought and having regard to the fact that not the whole of the Ogude family land was in dispute a plan ought to have been filed to identify that particular portion for which the injunction was sought and granted. According to counsel it was not enough for the learned trial judge to hold that the land was known to the parties. On this he relied on Rotimi & Ors v. Mcgregor (1970) 1 All NLR 321 at 124; Oniru v. Gbadamosi (supra) at page 359. He contended that Kufeji v. Kogbe (1961) 1 All NLR (Pt. 1) page 113 and Opara v. Ihejirika (1990) 6 NWLR (Pt. 156) 291 are not applicable. In conclusion he contended that in view of the facts the court ought to haw exercised its discretion to restrain both parties.