Francis Morgan Udo V. Incorporated Trustees of Christian Methodist Episcopal Church (2008)

LawGlobal-Hub Lead Judgment Report

THERESA NGOLIKA ORJI-ABADUA, J.C.A.

The Appellant was the Defendant/Respondent in the Motion on Notice filed by the Plaintiffs, now the Respondents, in Suit No. HU/315/2001 at the Akwa Ibom State High Court, sitting at Uyo seeking for an order of interlocutory injunction restraining the Defendant/Respondent whether acting by himself or through any agency, privy or representative, howsoever from further trespassing and or interfering with the Plaintiffs/Applicants’ right, possession and ownership of the piece or parcel of land situated at, and known and called Plot 1, Johnson Street Uyo. The said Motion was supported by the averments contained in the ten paragraph affidavit deposed to by one Mr. Iyakke Ukpong together with Exhibits A-E attached thereto.

The Appellant for his part, at the lower Court, filed a 15 paragraph counter affidavit together with Exhibits A-D attached to it.

The aforestated application was initially moved by the learned Plaintiff’s Counsel, Andem Eyo Esq. in 2002, but, hearing in the motion was not concluded until the 12th August, 2004 whence it was adjourned to 30/11/04 for ruling. However, for some reasons, the ruling was not delivered until the 19th January, 2005. In the ruling, the lower Court then granted the order of interlocutory injunction restraining the defendant, his agents, privy or representatives from further interfering with the land situated at and known as Plot 1 Johnson Street, Uyo, until the determination of the substantive action when the right of both parties will be determined.

Being dissatisfied with the ruling, the Defendant, now the Appellant, filed this appeal which is founded on four grounds and from which five issues were distilled for the determination of this court. They are:

“(1) Whether it was right for the Court below to order interlocutory injunction against the Defendant/Appellant when he has been at all times in possession of the land in dispute since 1978.

(2) Whether the Court below was right when it held that the balance of convenience was on the side of the Plaintiff/Respondent even though it did not controvert the averment of the Defendant/Appellant concerning the intervention by the third party interest before filing the suit.

(3) Whether it was proper in law for the Court below to order interlocutory injunction against the Defendant/Appellant considering the fact that the alleged act of trespass complained of had already taken place before the filing and service of the motion for interlocutory injunction on the Defendant/Appellant.

(4) Whether considering the totality of the affidavit evidence of the parties, was the trial Court right in ordering interlocutory injunction against the Defendant/Appellant when most of his averments were not controverted.”

In turn, the Respondents, in their Brief of Argument, formulated only one issue for determination. It is stated thus:

“Whether having regards to the character of interlocutory injunction as a discretionary remedy, as well as the principles upon which such discretion could be exercised, the learned trial Judge properly considered those principles and judiciously applied them to the facts and circumstances of the dispute between the parties in granting the interlocutory injunction to restrain the Appellant?

Arguing in favour of allowing the appeal, learned Counsel for the Appellant, Patrick Usen Esq., in the Appellant’s Brief of Argument, submitted in respect of issues 1 and 3 that it is against the known principles guiding the Courts in the exercise of their discretion in applications for order of interlocutory injunction, for a party who has been in possession of a land, years before the Applicant purportedly acquired any personal interest whatsoever thereon, and, exercised all acts of possession and ownership which have not been refuted by the Plaintiff, to have an order of interlocutory injunction slammed on his face. He referred to paragraph 13 of the counter affidavit filed by the Appellant at the Court below and stated that the Plaintiffs/Respondents had never been in possession of the land in dispute and the trial Court failed to consider all the principles enumerated in Kotoye v. CBN (2001) FWLR (Part 49) p. 1567 at 1575 ratio 14. Egwuatu v. Egwuatu (1992) 4 NWLR (Part 237) 594. 596. H.3. A-G.; Anambra State v. Okafor (1992) (Part 224) 396. 403 ration 6. Perepimode V. Miekoro (1992) 2 NWLR (Part 224) 483. 485 ratio 3 (Part 143) 144. 149 ratio 12; Akapo V. Hakeem Habeen (1992) 6 NWLR (Part 247) 266. Governor of Lagos State V. Ojukwu (2001) FWLR Part 50 1779. 1788 R.11. 12. 13 & 14.

He further cited the cases of Unibiz Nig. Ltd V. Commercial (Credit Lioness) Bank (2008) ALL FWLR Part 267. 1378. 138 R2. Tunde V. Sampson Roger (Nig.) Ltd (2000) FWLR Part 16. 2782 at 2784 R4. Akapo V. Hakeen Habeem (supra) and Governor of Lagos State V. Ojukwu (supra) Falomo V. Banige (1998) 60 LRCN 4166 at 4172 R5 Sotuminu V. Oceanic Steamship (Nig.) Ltd (1992) 5 NWLR Part 239 p. 11 ration 3. C.B.N. V. Ahmed (2001) FWLR Part 56 p. 670 at 677 ratio 13 and Kadiya V. Kadiya (2001) RWLR Part 70 p. 1585 and urged the Court to set aside the ruling.

On issue No.2, learned Counsel contended that the learned trial Judge did not take into consideration the deposition of the Appellant that he had rented the mechanic workshop on the land in dispute to some other people who were not parties to the suit. He referred to the authority of Ochoma V. Ideozu (2001) FWLR Part 51 1875 at 1878 Ratio 4 where it was stated that the Courts ought to take into consideration third parties interest in their consideration of where lies the balance of convenience. He submitted that the interlocutory injunction granted is capable of disrupting the business of those mechanics who had been renting the land before the institution of the action; therefore, it was not proper for the Court below to have granted the application.