Oba James Adeleke & Ors Vs Nafiu Adewale Lawal & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BA YANG AKA AHS, JSC

This is an appeal against the judgement of the Court of Appeal Ibadan Division delivered on 5th day of May, 2004. The appellants are the plaintiffs in the substantive action while the respondents are the defendants in Suit No. HRE/4/97 instituted and still pending before the Osun State High Court sitting at Ikire. The plaintiffs’ claims before the High Court as contained in paragraph 33 of the Amended Statement of Claim are as follows:-

“33 Whereof the Plaintiffs’ claim against the Defendants jointly and severally are as follows:-

1. N2,000,000.00 (Two Million Naira) general and aggravated damages for trespass, unlawful reaping and carrying away of the Plaintiffs palm fruits since March, 1996 up to the date of this action without the consent and authority of the Plaintiffs, harassment and humiliation by unnecessary causing the arrest of members of Buberu village Community at Suberu otherwise known as Ojudo Village Ogi town in Aiyedaade Local Government Council
2. Perpetual Injunction restraining the defendants jointly and severally, agents, servants or any member of Babasanya family of Ede Community from crossing the boundary and reap the plaintiffs palm trees without the consent and authority of the plaintiffs’.

The Statement of Claim is dated the 19th day of September, 1997 (See pages 3-6 of the record)

After filing the statement of Claim the plaintiffs also filed an application dated 3rd October. 1997 seeking an order of ‘interlocutory injunction restraining the defendants jointly and severally, their agents privies and servants from crossing the boundaries between the applicants and respondents and enter the farmland in dispute and reap the plaintiffs (sic) pending the final determination of the above named civil suit Or

In the alternative an order ordering the defendants, agents servants and privies to comply with the judgement of Oshogbo High Court in Suit No. HOS/134/64 between Josiah Akinfende vs Bello Adedoja & 3 Ors attached herewith and marked Exhibhit A9 from f urther crossing the boundaries between them and reap the applicants palm fruits.

2. To stop harassing members of Ojudo Community of Ojudo Ogi farming at Ojudo on the land in dispute with Ede Policemen and prosecuting them on frame up charges before the Ede lay Magistrate sitting at Ede and stay all the criminal proceedings pending against the applicants Community until the final determination of this case”.

The plaintiffs relied on survey plan No. GB101A which was attached as Exhibit D to the application showing the area of the land as well as other features of the land in dispute. They filed a further affidavit on 7/10/97 while the defendants filed a counter affidavit on 10/11/97. The learned trial Judge took arguments from the parties and after reviewing the said arguments delivered a ruling on 21st da) of May, 2003 granting the order of interlocutory injunction against the defendants. Being dissatisfied with the ruling, the defendants appealed to the Court of Appeal Ibadan. The Court of Appeal delivered its judgement on 5/5/2004 allowing the appeal and setting aside the order of injunction granted by the Osun State High Court sitting at Ikire. The plaintiffs felt aggrieved and have appealed to this Court. The plaintiffs shall be referred to as the appellants while the defendants are now the respondents in this appeal. The Notice of Appeal is dated 10th May, 2004 and it contains two grounds of appeal. An amended Notice of Appeal containing 8 grounds dated 24/6/2004 was filed on 25/6/2004. The appellants formulated the following three issues for determination. They are:-

1. Whether or not the lower courts approach to the resolution or correctness of the trial courts order of interlocutor) injunction in favour of the Appellant was properly made before setting aside the order
2. Whether the lower court was right to set aside the trial courts order when the Appellants have satisfied all the conditions necessary for the granting of such an order and was so found before the order restraining the respondents from further crossing the boundary was made by the trial court
3. Whether or not the lower court findings quoted below states the true

position of the law as to when to apply for an interlocutor) injunction after a previous judgement in a case.

‘The other issue to be considered in this application is the delay of the Applicant/Respondent to file for an order of injunction since 1964 when HOS/134/64 was determined. The records show that the respondents made no efforts to secure an injunctive order against the respondents over the land complained of. The basis of the exercise of a discretionary discretion to restrain the appellant would appear to be non – existing in the application consequently an injunctive order made in 2001 in the suit below would seem to me to be unnecessary and incompetent and whether the findings constitutes true statement of the taw involving when an interlocutory injunction was to be applied for (Page 5 of the judgement on page 110 of the records of appeal)’.

The respondents framed the following two issues for determination:-

1. Whether the lower court was right when it held that the order of interlocutory injunction made by the trial court is not tied to any-identifiable area of land.
2. Whether the lower court was right when it set aside the order of interlocutory injunction granted by the trial court for failure to comply with established rules and conditions.

The issues raised in the respondents brief succinctly bring out the complaints the appellants are making in this appeal. Learned counsel who prepared the appellants brief did not state from which ground or grounds he distilled each of the three issues he formulated. All he did was to tie the issues to all the grounds and argue the issues together. Although it is permissible to argue the issues together, a good brief should indicate the grounds to which a particular issue is tied. This is to ensure that the issues formulated in the brief are related to the said grounds and to forestall the possibility of raising more issues than the grounds. See: Adeleke vs Aserifa (1987) 1 NWLR (Part 49) 284; Nwokoro vs Onuma (1990) 3 NWLR (Part 136) 22; Din vs African Newspapers (Nis.) Ltd (1990) 3 NWLR (Part 139) 392 and Imam vs Sheriff (2005) 4 NWLR (Part 914) 80.

It was argued on the appellants behalf that in an application for interlocutory injunction the law does not require that the applicant should make out a case as it should be made on the merits but it will be sufficient to show that there is a substantive issue to be tried and cited the case of Kufeji vs Kosbe (1961) ALL NLR (Part 1) 113. Learned counsel submitted that the appellants were able to show that there had been an age – long dispute of boundary between the appellants and the respondents which was settled by series of judgements the latest being Suit No. HOS/134/64 to which the survey plan No. GB101A admitted as Exhibit (D was tied when they were declared the owners of the land in dispute and granted the injunction. He said both the judgement and the survey plan were attached to the affidavit evidence in support of the application for Interlocutory- Injunction. He contended that the appellants identified four guiding principles to be established before granting such an application which the trial court applied in its ruling but the lower court did not advert its mind to these issues. It is the contention of learned counsel that the respondents are not disputing having a common boundary with the appellants between their respective farmlands or that the survey plan GB101A did not show the boundary which is the subject of the dispute or was irrelevant to the application for interlocutory injunction. He said the contention of the respondents is that the description of the farmland in dispute as given by the appellants was inadequate and that the area trespassed upon was not shown on the survey plan. He submitted that the lower court ignored the description of the land in dispute deposed to in the affidavit in support of the application while what is required in an application of this nature is only to make a prima facie case as the lower court is not called upon to decide or delve into the substantive claim. He submitted that the lower court was wrong in rejecting the survey plan attached to the affidavit in support of the application and that the Court applied the wrong approach in resolving whether the learned trial Judge order of injunction was right or wrong before it set aside the order. He submitted that the lower court was in error when it held that the survey plan No. GB101A on which the judgement in Suit No. HOS/134/64 was based could not be used in the instant case because it was not made for the substantive suit HRE/4/97.

In reply learned counsel referred to paragraphs 9 and 11 of the affidavit in support of the application for injunction as well as paragraphs 5 and 9 of the counter – affidavit and submitted that from the above depositions the exact boundary of the land in dispute is strongly contested by the parties and the conflict can only be resolved through oral evidence placing reliance on Akinsete vs Akindulire (1966) 1 ANLR 147; and Olu – Ibukun vs Olu – Ibukun (1974) 2 SC 41. He said the trial court ignored this and so the lower court was right when it upheld the respondents argument that the identity of the land in respect of which the trial court granted the order of interlocutory injunction was uncertain and unidentifiable. He said plan GB101A which was made in respect of Suit No. HOS/134/64 has no relevance nor direct reference to suit No. HRE/4/97 and there is no area of land where the injunction order made by the trial court can be tied to. He argued that the order of interlocutory injunction made by the trial court in the pending suit HRE/4/97 cannot be tied to plan No. GB101A tendered as Exhibit D m suit HOS/134/64. He also pointed out that the parties are not the same and Suit No. HOS/134/64 was instituted by the plaintiff in his personal capacity while in suit HRE/4/97, the plaintiff sued in a representative capacity. While agreeing that the filing of a survey plan is not necessary, he argued that where the boundaries are disputed and the description of the land is inadequate as in this case where an ambiguous plan Exhibit D* used in 1964 in HOS/134/64 was relied on by the trial court in another suit HRE/4/97 filed 33 years after, a clear survey plan becomes a necessity. Heavy reliance was placed on Dabup vs Kalo (1993) 9 NWLR (Part 317) 254 and A.C.B. LTD vs Awogboro (1996) 3 NWLR (Part 434) 20 for this submission.

Regarding the urgency of granting the interlocutory injunction learned counsel reasoned that there was no such urgency since the application which was filed in 1997 was not moved until 2001. Referring to Odutola vs Lawal (2002) 1 NWLR (Part 749) 633 and Globe Fishing Industry Ltd. vs Coker (1990) 7 NWLR (Part 162) 265 learned counsel submitted that an applicant for an injunctive order must clearly show that there is need to preserve the subject matter over which he seeks an injunction. He submitted that the trial court did not properly consider all the conditions that must be fulfilled before granting the injunctive order. He said the judgement exhibited HOS/134/64 as representing the legal right over the land in dispute cannot assist the appellants.