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:-
- The learned trial judge erred in law when he failed to consider the balance of convenience in granting the application of the appellants.
- 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.
- 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
- 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.
For the Respondents, learned counsel Mr. Akpoguma contended that the fact that the learned trial judge did not expressly resolve the issue of balance of convenience did not mean that he did not consider it. It was his submission that the failure of the trial judge to expressly so hold is not sufficient to warrant reversal. He also relied on Obeya Memorial Hospital & Anor. v. A-G Federation and Anor. (supra). He argued that the trial court rightly identified triable issues and the Respondents’ legal rights against which violation the injunction was sought and granted. He relied on Commissioner for Works, Benue State & Anor. v. Devcon Development Consultants Ltd. (1988) 3 NWLR (Pt.83) 407 (1988) 7 SC (Pt. 1) 44 at 73. He submitted that once the ruling is shown to have considered the case put forward by the parties and in the law, before exercising the discretionary power judiciously and judicially, the appellate court will not interfere and relied on Ceekay Traders Ltd. v. General Motors Co. Ltd. (1992) 2 NWLR (Pt. 222) 132 at 147. He argued that the applicants/respondents’ claim to being in exclusive possession was not seriously countered and referred to paragraphs 5(a), (f) (g) of the counter affidavit at pages 16-17 of the record and paragraph 4 of the further counter affidavit at page 23 of the record. He justified the learned trial judge’s conclusion that the land in dispute was known to the parties and therefore that survey plan was not necessary and referred to paragraphs 5,6,7 of the supporting affidavit, 6 and 8 of the further affidavit 5(a) and (g) of the counter affidavit and paragraph 4 of the further counter affidavit. He relied once more on Obeya Memorial Specialist Hospital & Anor. and A-G of Federation & Anor (supra) at 71 and 72.
In an application for interlocutory injunction the first consideration is that the claim is not frivolous. In other words the claim and the facts both in support and against the application must show that there are serious issues to be tried in the substantive suit and that the plaintiff/applicant has real chances of success. See Kotoye v. C.B.N. (1989) 1 NWLR (Pt. 98) 419; Globe Fishing Industries Ltd. and Others v. Coker (1990) 7 NWLR (Pt.162) 265. In this case the plaintiffs/applicants’ claim is that the land is part of the land of their common ancestor Ogude and that the land has since been partitioned among Ogude’s six children including Ogbroko. According to them the land in dispute is that which belongs to their Odjevwedje arm of the Ogbroko branch. Although the defendants/appellants denied the assertion about partition, they asserted that the land still remains the Ogude family land of which the plaintiffs/applicants are part. They therefore confirmed the plaintiffs’ proprietary interest in the land in dispute. The application therefore passed the first test.
The next question is that of balance of convenience. Each set of the parties contended that the balance of convenience was in their favour. The complaint in this appeal is that the learned trial judge failed to consider the issue before granting the injunction. The question of balance of convenience is sometimes a difficult one to resolve. It is one that can hardly be determined with mathematical exactitude. For this reason an appellate court will not substitute its own contrary view for that of the trial court on the issue of balance of convenience unless the trial court’s decision on the issue is seen to be manifestly wrong. See Orji v. Zaria Industries Ltd. (1992) 1 NWLR (Pt. 216) 124 at 149. The result is that if the learned trial judge had expressly resolved the issue I would not have tried to revisit the same unless the court’s decision is seen to be manifestly wrong. Now he did not resolve it. In such circumstances I should consider the issue to see in whose favour the balance of convenience lies. The first question is, if without the injunction and the plaintiffs/respondents eventually succeed in the substantive claim, whether the injuries which they would have suffered from the defendants/appellants would be such for which they cannot be adequately compensated from costs recoverable in the action. If the damages are such for which they could be adequately rewarded from costs recoverable in the action, no interlocutory injunction should be granted no matter how strong the plaintiffs’ case may appear to be at that stage. If damages recoverable in the action would not be adequate compensation, then the court would, on the other hand consider if, the injunction is refused and the defendants were to succeed in the substantive claim, whether defendants/appellants could be adequately compensated under the plaintiffs’ undertaking as to damages for the injuries they would have suffered as a result of the injunction. If damages recoverable under the plaintiffs’ undertaking as to damages would be adequate compensation then the injunction could be granted.
In the instant case the relevant averments of the supporting affidavit are paragraphs 8, 10, 11 and 12. The substance of the complaints therein is that upon entry into the land the defendants/appellants allotted lands to individuals who have since started cultivating same. They have started changing the structure of the land by cutting across various boundaries and bulldozing existing cassava farms. And in paragraphs 20, 21 and 22 it was averred that unless the defendants were restrained, the land would have been so radically changed that individual owners within the Odjevwedje arm of the Ogbroko branch would have difficulty in relocating boundaries between themselves. And that even if they win at the trial, they cannot be adequately compensated. These assertions must be related to the reliefs claimed. There is a claim for N500,000.00 damages for trespass. There is also a claim for an order compelling the defendants/appellants to give account of proceeds from a part of the land. The allegation of the defendants cultivating the land in paragraph 10 of the supporting affidavit is not such that can cause irreparable damage. So also is the allegation of cutting across boundaries. The most serious allegation is that of bulldozing cassava farms, but this was denied in paragraph 11 of the counter affidavit. In my view there is no allegation of such a damage for which the plaintiffs/respondents cannot be adequately compensated by costs recoverable from the claims for N500,000.00 and for accounts. To justify the injunction, the plaintiffs/respondents must establish that unless the defendants/appellants are restrained they would suffer irreparable damages before the trial.
Proof of mere inconvenience or difficulties is not enough for the grant of an interlocutory injunction. See Saraki v. Kotoye (1990) 4 NWLR (Pt. 143) 144 at 187. See also Volume 21 Halsbury’s Laws of England 3rd Edition paragraph 765 at page 366. I would therefore resolve this question of balance of convenience in favour of the appellants.
On the question of whether a plan was needed, I am in agreement with the view of the learned trial judge that a plan was not needed since that land in dispute was known to the parties. Part of paragraph 9 of the further and better counter affidavit stated:
“The land which they ascribe to the Odjewedje descendants is part of Ogude family farmland and still remains Ogude family farmland. It was pan of the land which was litigated upon to the Supreme Court in the name of Ogude family……”
This shows clearly that the land in dispute was known to the parties and for the purpose of an interlocutory injunction that was sufficient even though same may not be sufficient for the relevant reliefs in the substantive claim.
Finally, in view of the issue of balance of convenience which the learned trial judge failed to resolve and which I have resolved in favour of the appellants this appeal succeeds and is allowed. The interlocutory injunction granted by the learned trial judge on the 13/3/97 be and is hereby discharged. There shall be costs of N1,000.00 in favour of the appellants.
Other Citations: (1999)LCN/0615(CA)