Eyo Okon Eyo V. Chief Akinwunmi Ricketts (2003)

LawGlobal-Hub Lead Judgment Report

RAPHAEL OLUFEMI ROWLAND, J.C.A.

This is an appeal against the Ruling of Eneji, J. of the Cross River High Court sitting in Calabar Judicial Division delivered on 9th day of August, 2001. The Court granted an interlocutory order of injunction restraining the Appellants from trespassing or continuing to trespass and to stop committing any other acts of trespass in any other form on the land pending the determination of the suit.

The facts of the case as borne by the records run thus:

The 1st Appellant applied for a plot of land from 2nd Appellant in 1992. The 2nd Appellant after processing the 1st Appellant’s application offered him a lease of the land in dispute on the 17th September, 1993, the offer was accepted by the 1st Appellant by making payment.

On the part of the Respondent, he also claimed to have been given a provisional offer of lease of the same plot by the 2nd Appellant in 1997 four years after the 1st Appellant claimed that he was allocated the plot. The 2nd Appellant stated that the plot was provisionally offered to the Respondent in error.

The Respondent then applied for interlocutory injunction restraining the Appellants from trespassing into the Land. The learned trial Judge granted the application in toto. The 1st Appellant and the respondent derive their title from the 2nd Appellant but the 2nd Appellant stated that it made the offer to the Respondent in error and that the 1st Appellant had been in an undisturbed possession. The 1st Appellant is said to have built a three building on the land. The Respondent also claimed to have built a fence on the land. As I have adumbrated above the Court below granted an interlocutory injunction in favour of the respondent. Dissatisfied with the decision of the lower court the appellants have brought this appeal to this Court on a number of grounds of appeal.

From the grounds of appeal the appellants raised three issues for determination.
They read:
“1. Whether the learned trial Judge in his ruling did not decide the main issue in the substantive suit without hearing and said the status quo be maintained.
2. Whether the learned trial Judge was right in holding that monetary compensation will not be adequate and then grant interlocutory injunction when pecuniary damages is claimed in the main suit.
3. Whether the learned trial Judge judiciously and judicially exercised his discretion in holding that the balance of convenience this in favour of the respondent and also failing to undertake to pay damages.”

The respondent formulated one lone issue for determination as follows:
“1. Whether the learned trial Judge upon the evidence before him exercised his discretion judicially and judiciously based on the relevant principles and considerations for the grant or refusal of interlocutory injunction.”

On the 1st issue for determination, the learned Counsel for the appellants in their counter affidavit stated that the 1st appellant has been in undisturbed possession of the land in dispute from 1993 as evidenced in his allocation letter. According to Counsel for the 1st appellant the 1st appellant built the fence and he is therefore not a trespasser. It was contended that the ruling of the learned trial Judge has decided the issue in the substantive suit without any clear cut evidence.

Learned Counsel for the appellant also submitted that the prayer for the interlocutory order is similar to the one in the substantive suit. That is the more reason why the court ought not to have granted the application rather should have ordered accelerated hearing as requested by the appellants it was submitted.

It is the contention of the appellants that the respondent in his affidavit admitted that the appellant was in possession of the land and building on the land. It was contended that in spite of this clear admission of fact the learned trial Judge still restrained the appellants in order that the status quo ante be preserved.

The respondent’s brief did not answer issue No.1 in the appellant’s brief. The only issue formulated by the respondent is akin to issue No.3 in the appellants’ brief. I have read carefully the ruling of the learned trial Judge and I am convinced that the said ruling has decided the issue in the substantive suit without any clear cut evidence. The ruling adjudged the appellants trespassers and found that the respondent is the owner of the land in dispute without clear cut evidence before him. It seems to me therefore that the decision of the lower court was not judicious. See the case of Okpokiri v. Okpokiri (2000) 3 N.W.L.R. (pt 649) 461 at 472 per Edozie J.C.A. (as he then was).

He said:
“A court should be wary not to decide the main question or issue in the substantive suit while dealing with an interlocutory application for injunction or any other interlocutory application otherwise the court would be acting in violation of the right of fair hearing, that is, audi alterem pert em principle of natural justice. In the instant case, the substantive issue between the parties is the ownership of the property in dispute and this issue calls for determination only after due trial.

The learned trial Judge in his ruling on the respondent’s application for injunction however held that the respondent was the owner of the property in dispute. In the circumstances, the trial Judge had determined the main issue in the suit without a hearing and in breach of Appellant’s fundamental and constitutional right to fair hearing and the entire proceedings including the ruling of the trial Judge is a nullity.” See Nigerian Civil Service Union v. Essien (1985) 3 N.W.L.R. (pt 12) 306.