Navy Captain Abimbola Adesina (Rtd.) V. Kafaru Arowolo & Ors (2003)

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CHRISTOPHER MITCHELL CHUKWUMA-ENEH, J.C.A.

This appeal is against the decision of the Ikeja High Court (Coram A.J, Coker, J.) contained in the ruling delivered on 608 the 11th day of January, 2002 dismissing the plaintiff’s (appellant) application for an order of interlocutory injunction.

In both the writ of summons and statement of claim, the plaintiff claimed against the defendants (respondents) jointly and severally a declaration of entitlement to the statutory right of occupancy of plot of land situate and otherwise known as No.2 Dele Ojo Street, New Oko-Oba, Agege, Lagos State; possession of (he land in dispute and an order of perpetual injunction restraining the defendants and their agents, privies and assigns from further trespass upon the said plot of land and the sum of N2,660,00 being both special and general damages for the acts of trespass.

On the 29/11/01 the plaintiff (appellant) by way of motion applied for an interlocutory injunction to restrain the defendants and their agents from further trespassing upon or erecting any structures on the disputed land pending the determination of the suit and supported it by an affidavit of twenty eight paragraphs with one exhibit marked exhibit A and sworn to by the plaintiff. He also filed a reply to the counter-affidavit with four documents attached to it marked exhibits A1, B, B1 and B3. The defendants (respondents) filed a counter affidavit sworn to by the 3rd defendant (respondent). After hearing the submissions of the learned counsel on both sides of the matter the court below in a considered ruling dismissed the application with costs.

Aggrieved by the said decision the plaintiff (appellant) appealed to this court upon 9 (nine) grounds of appeal by a notice of appeal filed 21/1/02. The parties have in accordance with the rules of this court filed and exchanged their briefs of argument.

The appellant in his brief of argument identified 4 (four) issues and they read as follows:
“1. Whether or not the trial court touched on the issues for the substantive stage or whether or not he demanded a prima facie case from the appellant when it held that there is no enough prima facie evidence that there was anything on the land which was destroyed before the defendants commenced construction works on the land, and also by holding that the appellants ought to have shown such by way of photographs and having not done so, the court was unsatisfied as to his affidavit evidence despite the evidence that the respondents with the help of armed thugs have kept the appellant away from the land.

2. Which of the 2 parties i.e. appellant or respondents stand to loose more if the order of injunction is refused and it is later discovered that it ought to have been granted or whose loss can be better compensated in damages.

3. Whether or not the court’s discretion was judicially and judiciously exercised by refusing to stop the respondents from building on the land when it is so obvious that if the respondents are not restrained they will complete their building on the land and permanently render the land totally unfit for piggery breeding and agricultural purpose in the event that the appellant succeeds at trial.

4. Whether the claims for special damages for the destruction of the properties on the land and general damages for trespass can compensate for losing the agricultural purposes for which the land was brought on one hand, and whether because the appellant has claimed special and general damages, the loss of the agricultural purpose of the land is also quantifiable in damages.”

The respondents in their brief of argument distilled as the sole issue for determination thus:
“Whether the learned trial Judge was right in the way and manner she exercised her discretion in refusing the appellant’s application for an order of interlocutory injunction.”

The respondents on 4/10/02 filed a notice of preliminary objection under Order 3 rule 2(2) and (4) of the Court of Appeal Rules challenging the competence of grounds 2,4,5,6,7, 8 and 9 of the notice of appeal and more specifically,
(i) that the grounds alleged misdirection or errors in law without setting out particulars and nature of the misdirection or errors; and
(ii) that the grounds disclosed no reasonable ground of appeal, being vague.

The respondents argued the preliminary objection in their brief of argument. I go on to set out their case in this regard which in the main was that the grounds fell short of the mandatory requirement of Order 3 rule 2(2); and based that conclusion as have been established in several dicta of the Supreme Court, for example, in the case Adeleke v. Asani (2002) 8 NWLR (Pt.768) 26 at pp.42-43 per Ejiwunmi, JSC and per Ogwuegbu, JSC at p.45.

On the incurable vagueness of these grounds the respondents had charged that there was no standard means for their being understood and for failing to disclose any reasonable ground of appeal. They also in this respect relied on the dictum of Uwaifo, JSC in Central Bank of Nigeria v. Okojie (2002) 8 NWLR (Pt.768) 48 at 61. Order 3 rule 2(7) was invoked to ask the court to strike out the notice of appeal on grounds of incompetence. See Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) 285.

The appellant has not so far filed a reply brief in answer to the aforesaid grounds taken in the preliminary objection. Before dealing with preliminary, I think I should set a resume to the background of the matter.