Dr. Tunji Braithwaite V. Standard Chartered Bank Nigeria Limited (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A. (Delivering the Lead Ruling)

In this application, the Appellant/Applicant is praying this court for the following relief:

“AN ORDER OF INTERLOCUTORY INJUNCTION restraining the Respondent quia timet whether by itself, its agents, proxies or howsoever from commencing and/or continuing to carry on civil, engineering and building works in respect of the building project proposed by the Respondent at No. 142, Ahmadu Bello Way, Victoria Island, Lagos, pending the Hearing and Determination of the Appellant/Applicant’s appeal to this Honourable Court dated 27th April, 2010.

AND FOR SUCH FURTHER and/or other order(s) as the Honourable court may deem fit to make in the circumstance”.

This application dated and filed the 11th day of May, 2011 has two affidavits in support. The first is a 32 paragraph affidavit with five exhibits annexed and marked DO/I – DO/5. The 2nd one is a further affidavit of 6 paragraphs deposed to by one Dapo Omolodun, a legal practitioner in the law firm of Tunji Braithwaite & Co., the law firm representing the Applicant. Annexed to the said further affidavit is one Exhibit, marked DO/6.

In response, the Respondent filed two counter affidavits, both deposed to by Suzanne Oluwole, a legal officer in the CRES Project Group Department of the Respondent’s company. The 1st counter affidavit was filed on 26/5/11 and is made up of 52 paragraphs with 19 Exhibits attached and marked SO.1 SO.19. The second counter affidavit was filed on 8/6/11 and has 17 paragraphs with seven exhibits annexed and marked SO .20 to so.26.

In moving this application, the Applicant who appeared in person, relied on the two affidavits and all the exhibits annexed thereto and submitted that the situation in this application is such that an interlocutory injunction should be granted Referring to Exhibit SO.1 attached to Respondent’s 1st counter affidavit, particularly clause 1(d), (e) and (f) and paragraph 5 of the affidavit in support of this motion, he submitted that the premises of the Respondent i.e., No. 142 Ahmadu Bello Way, Victoria Island, Lagos is meant for residential purposes only and cannot accommodate a huge commercial building to the annoyance of its neighbours.

That the lower court visited the property and made a preservative order as contained in Exhibit SO .14 annexed to Respondent’s 1st counter affidavit. Learned counsel further contended that the 14 storey building by the respondent will destroy the amenity value of his property. According to the Applicant, he had prayed the court below to extend the life span of the preservative order but the court below refused and an appeal has been filed in this court.

On the assertion by the Respondent that it has a building permit, the Appellant submitted that a building permit or licence cannot be a licence to commit nuisance, relying on the case of Adediran v. Interland Transport Ltd. (1991) 2 NSCC 707 at 722-722 has 50-58. The Applicant then submitted a list of authorities to assist this court in deciding this matter and urged us to grant the application. Some of the authorities include Akinpelu v. Adegbore (2008) 10 N.W.L.R. (pt. 1096) 531; Onyeson v. Nze Christopher Nnebedum & Ors. (1992) 3 N.W.L.R. (pt.229) 315 at 318; Adenuga & ors. v. Odunewu & ors. (2oo1) 2 N.W.L.R. (pt. 696) 184 amongst others.

In response, the learned counsel for the Respondent submitted that the court below was right to refuse to extend the preservative order because there was already an appeal before this court. That in considering this application, the Applicant must, apart from the need to preserve the res, show that he has a right to be protected by the grant of an injunction. He relies on the cases of Kotoye v. CBN & Ors. (1989) 1 N.W.L.R. (pt.98) 419 and Obeya Memorial Specialist Hospital v. Attorney General of the Federation & Anor. (1987) 2 NSCC 961.

Learned counsel submitted further that the balance of convenience in this matter is in favour of the Respondent because Section 43 of the 1999 Constitution of the Federal Republic of Nigeria gives the Respondent as a corporate citizen of Nigeria the right to acquire and develop immovable property in Nigeria. That as long as the Respondent only, the laws of the land, it has a right to develop its property. That since the Lagos State Government has given approval for the Respondent to construct the building; the Applicant should rather sue the Government and not the Respondent. He refers to the case of Attorney General of Lagos State v. Attorney General of the Federation (2003) 12 N.W.L.R. (pt.833) 1.

It was the further submission of learned counsel that if work is stopped now, it will lead to structural defect and the building may collapse and kill people. He refers to paragraph 7 of the 2nd counter affidavit and the case of IMB Nig, Ltd. v. Dabiri & Ors. (1998) 1 N.W.L.R. (pt.533) 284 at 299.

On the submission of the Applicant that the property was for residential purpose only, he contended that the covenant was made between the Respondent and Lagos State Government. That by Exhibit S.O.6 which is Lagos State Government regulation on town planning as currently established, it is seen that the Government has changed the character of the area as the minimum level or height of building there is 7 floors and the maximum is 15 floors. It was counsel’s conclusion that should the Applicant intend to challenge the approval, he should direct it to the Lagos State Government. He urged this court to hold that all the authorities cited by the Applicant are inapplicable in this case. He urged this court to refuse the application.

In a brief rejoinder, the Applicant submitted that the learned counsel for the Respondent attempted to argue the main case at the court below and that his arguments should be discountenanced.