Prince Kayode Olowu V. Building Stock Limited (2003)

LawGlobal-Hub Lead Judgment Report

MORONKEJI OMOTAYO ONALAJA, J.C.A.

The plaintiff, a company incorporated in Nigeria is referred to in this judgment as respondent issued a writ of summons in the High Court of Lagos State against the defendant henceforth referred to in this judgment as appellant on 15th day of February, 2000 and endorsed the writ and claimed as follows:
“The plaintiff’s claim is for-
‘(1) A declaration that the plaintiff is entitled to a statutory right of occupancy in respect of the property known as and situate at 3 Chris Alli Crescent (formerly 3 Sanni Abacha Crescent, Ikoyi, Lagos) also known as Plot 2 Block 3, Second Avenue Estate, Ikoyi, Lagos.
(2) A declaration that the plaintiff is entitled as against the defendant and the whole world to the possession and quiet enjoyment of the said property to wit 3 Chris Alli Crescent (formerly 3 Sanni Abacha Crescent, Ikoyi, Lagos) also known as Plot 2 Block 3, Second Avenue Estate, Ikoyi, Lagos.
(3) The sum of N3,000,000.00 (three million naira only) being damages against the defendant for the trespass committed on the plaintiffs’ land by the defendants.
(4) An order of perpetual injunction restraining the defendant, his agents, servants, privies whatsoever, from disturbing the plaintiff’s peaceful enjoyment of its said property.”

Respondent filed same day along with the writ of summons motion ex parte under Order 41 rule 4 and Order 42 rules 1 and 9 High court of Lagos State (Civil Procedure) Rules, 1994 and the Inherent Jurisdiction of the Court and sought the under mentioned reliefs:
“(1) An order of interim injunction restraining the defendant and his agents, servants, thugs and privies whatsoever from continuing their acts of trespass or in any way whatsoever, hindering impending or tampering with the plaintiff’s enjoyment of the plaintiff’s property situate at and known as No.3 Chris Alii Cresent (formerly 3 Sanni Abacha Crescent, Ikoyi, Lagos) also known as Plot 2 Block 3, 2nd Avenue Estate, Ikoyi, Lagos pending the healing and final determination of the motion on notice filed herein.
(2) An order granting leave to the plaintiff/appellant to serve the enrolled order of interim injunction (if granted) on the defendant together with the writ of summons and motion on notice for interlocutory injunction.
(3) Such further order(s) or other order(s) as this Honourable Court may deem fit to make in the circumstances.”

Respondent filed a supportive affidavit of 17 paragraphs set out in pages 8 to 10 of the record of appeal.

In addition respondent also filed an affidavit of urgency at pages 4 and 5 of the record of appeal.

The matter was fixed for 24th February, 2000 before the High Court of Lagos holden in Lagos. On 24th February, 2000 the matter came up before Hon. Justice S. O. Hunponu Wusu as recorded at  page 181 of the record of appeal which after names of the parties it reads thus, it is better to reproduce because of the comments on proceedings of 24th February, 2000.
“Parties are absent O. A. Ezebu for the plaintiff/applicant holds Ayeni’s brief. There is a motion ex parte dated 14/2/2000 asking for an interim injunction and for counsel to serve the writ of summons, statement of claim on the defendant. He refers to the affidavit in support and moves. It is ordered as prayed.
Return date is 6/3/2000
(Sgd) (S. O. Hunponu-Wusu)
Judge,
24/2/2000.”

On 6th day of March, 2000, learned counsel for appellant drew the attention of the court to counter-affidavit and a motion on notice to discharge the order of court dated 24/2/2000. Learned counsel for respondent informed the court that he was served with the counter-affidavit last Friday before Monday, 6th March, 2000 and requested for time to react within 7 days and that the defendant (appellant) has not been complying with the order of court. Respondents’ were to give express understanding (sic undertaking) within 48 hours of today the matter was adjourned technically to 8th March, 2000 for the argument of appellant’s (defendants) motion on notice.

The matter was adjourned later to 4th April, 2000. Written addresses were written by the parties and the preliminary objection of respondent against the motion to 17th April, 2000. As the written addresses were filed the ruling was adjourned to 16th June, 2000. The motion for discharge and preliminary objection were adjourned several times until the ruling was delivered on 19th September, 2000. The ruling covered pages 189 to 202 of the record of appeal. As the learned Judge found against appellant who was found to be in contempt of the order of 24th February, 2000 the application for discharge of the ex parte or interim order of 24th February, 2000 was refused whilst in the same ruling an order of interlocutory injunction was slammed on appellant.

Dissatisfied with the refusal to discharge the interim order of 24th February, 2000 and the grant of interlocutory injunction against appellant gave rise to this appeal. After filing the notice of appeal appellant with the leave of court filed an amended notice of appeal which was incorporated in appellant’s brief of argument of 15th February, 2002, the said appellant’s brief was served on respondent as 1st respondent. Appellant withdrew the appeal against 2nd respondent making the battle line to be drawn between appellant and respondent.

After service of appellant’s brief of argument on 1st respondent, appellant filed a reply brief on 9th October, 2002. Upon the matter coming up for argument of the appeal in this court appellant relied on his brief of argument filed in this court on 15th February, 2002 and his reply brief of 9th October, 2002 and urged the court to allow the appeal.

Respondent in arguing the appeal relied on its brief of argument filed on 18th September, 2002 and urged the court to dismiss the appeal.

From the amended notice of appeal in paragraph 3 of appellant’s brief of argument the under mentioned were raised as issues for determination in this appeal by appellant.
“3 Issues for determination
(i) Whether the principles for discharging an order of interim injunction and those for granting an order of interlocutory injunction are the same.
(ii) Whether the learned trial Judge was right in declining to discharge the order of interim injunction?.
(iii) Whether the proceedings leading to the grant of the interim junction and refusal to discharge same deprived the appellant of his constitutional right to fair hearing.”

Respondent at page 3 paragraph 3 of its brief of argument raised as under the issues for determination thus-
” 3.00 Issues for determination
‘(1) Whether the procedure adopted by the lower court hearing and determining the motion to discharge an interim injunction as well as a motion for interlocutory injunction was correct.
(2) Whether the learned trial Judge was wrong in refusing to discharge the order of interim injunction.
(3) Whether the grant of the interim injunction and the refusal to discharge same deprives the appellant of his constitutional right to fair hearing.”

It is pertinent to note that the issues for determination raised in appellant’s brief of argument and that raised in respondent’s brief of argument are similar in consideration of the appeal cross-references shall be made to arguments proffered by appellant and respondent.