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IN THE COURT OF APPEAL, LAGOS JUDICIAL DIVISION
2ND NOVEMBER 2000
8 NWLR (Pt. 616) 598
BEFORE THEIR LORDSHIPS
GEORGE ADESOLA OGUNTADE, JCA
SULEIMAN GALADIMA, JCA
PIUS OLAYIWOLA ADEREMI, JCA
MRS. ALERO JADESIMI
Mr. Tayo Oyetibo – for the Appellants
Mr. Ike Imoh – for the Plaintiff/Respondent
Mr. Adetona – for 7th AND 10th Respondents
REAL ESTATE/LAND LAW:- Claim for declaration and injunction relating to interest in land – Ex parte application – Where interest has been affirmed by Supreme Court – How treated
ESTATE ADMINISTRATION:- Locus standi to initiate proceedings relating to property of deceased person – Claim ex parte to preserve property in estate which had been judicially affirmed as belonging to Plaintiff – What plaintiff must prove
CHILDREN AND WOMEN LAW:- Women and Real Estate/Inheritance – Defence of interest n property – Relevant considerations
PRACTICE AND PROCEDURE – ACTION – Locus standi – A defendant who contends that a plaintiff has no locus standi having regards to the facts pleaded by the plaintiff – When same would amount to admission of the truth of the averments on the Statements of Claim in relation to the locus standi of the plaintiff – Whether proof as to locus standi can be taken during consideration of an application for interim relief
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – DECLARATION AND INJUNCTION:– Application for interim and ex parte order – How treated
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – INTERIM RELIEFS:- Defendant contesting a matter which falls entirely into the realm of ‘proof’ at hearing of an interim application – Whether to allow the defendant to do so is to impose on the plaintiff the burden to first prove his case in order to be entitled to interim reliefs – Whether argument as to proof of locus standi is premature and does not properly arise at that stage.
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER:- Interim injunction – Meaning – Distinction from ex parte application – Main distinguishing feature from interlocutory injunction – When interim order are deemed properly made
PRACTICE AND PROCEDURE – PLEADINGS:- Averments in pleadings – Purpose of – Whether do not constitute the evidence to be relied upon in proof of the averment
G.A. OGUNTADE, J.C.A. (delivering the leading judgment)
The respondent in this appeal was the plaintiff at the Lagos High Court. In her Writ of Summons issued on 9/4/99, she claimed the following reliefs:-
“(a) A declaration that the property situated and known as 1 Milverton Road, Ikoyi, Lagos forms part of the Estate of Chief Festus Okotie – Eboh (Deceased).
(b) A declaration that any purported sale by the defendants is null, void and unenforceable since the defendants are neither beneficiaries nor vested with title to the said property.
(c) An order of Perpetual Injunction restraining the defendants, their servants, agents, privies whether by themselves severally; jointly or otherwise howsoever from occupying, leasing, letting, dealing or in any way interfering, impeding or disturbing the peaceful and uninterrupted access to and use of 1 Milverton Road, Ikoyi, Lagos until the said property becomes properly vested in the plaintiff.
(d) An order for an account of the proceeds of rent unlawfully obtained by the defendants for 1 Milverton Road, Ikoyi, Lagos by leasing the said property between 1997 to date.
(e) The sum of N15m or any further or other sums as might be found due to the Plaintiff being general damages for loss of enjoyment, use and/or revenue from the property from 1997 till the determination of this suit.
(f) Costs including solicitors fees of N500,000.00 (Five Hundred Thousand Naira only).”
The plaintiff filed her statement of claim along the Writ of Summons. The plaintiff also filed an ex parte application praying for.
“1. An order of Interim Injunction restraining the defendants, their servants, agents and/or privies whether jointly, severally or otherwise howsoever from occupying, leasing, renting, dealing or from interfering with or in any way impeding or disturbing the peaceful and uninterrupted access to and use of 1 Milverton Road, Ikoyi, Lagos the subject matter of the of the dispute in this case by the plaintiff, pending the determination of the Motion on Notice filed by the plaintiff herein.
To the affidavit filed in support of the application some documentary exhibits were annexed. On 19/4/99, the lower Court heard the ex parte application and made an order restraining the defendants as prayed.
The defendants were dissatisfied with the ex parte order made by the Lower Court.
They brought an appeal against it on three grounds of appeal. In the appellants’ brief filed, the issues for determination were identified as the following:
“1. Whether the plaintiff has Locus Standi to seek the second to the fifth reliefs endorsed on the Writ of Summons.
The respondent’s issues for determination are these:
“(i) Whether or not the Plaintiff/Respondent has Locus Standi to institute the action in the lower court?
(ii) Whether the order of Interim Injunction granted by the learned trial judge prejudges or prejudices the substantive reliefs sought by the plaintiff/respondent in this suit particularly the third (3rd) relief for perpetual injunction in the main claim.
(iii) Whether the learned trial judge properly exercised his discretion in granting the plaintiff/respondent the order of interim injunction in the lower court.”
It seems to me that the respondent’s three issues for determination are amply covered by the appellant’s two issues. I shall be guided in this judgment by appellant’s issues.
In the first issue for determination, the argument of appellant’s counsel was essentially that the plaintiff /respondent did not show that she had the requisite standing to seek the reliefs two to five on her Writ of Summons. Counsel relied on a number of cases including Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669; A-G, Enugu State v. Avop (1995) 6 NWLR (Pt. 399) 90 at 113; Gombe v. P.W. (Nig.) Ltd (1995) 6 NWLR (Pt. 402) 402 at 432; Busari v. Oseni (1992) 4 NWLR (Pt. 237) 557 at 586; Ebongo v. Uwemedimo (1995) 8 NWLR (Pt. 411) 22 at 44; Adefulu v. Oyesile (1989) 5 NWLR (Pt. 122) 377 at 418 and Williams v. Dawodu (1988) 4 NWLR (Pt. 87) 189.
In his attempt to show that the plaintiff/respondent lacked a Locus Standi to bring the suit, counsel stressed the necessity for us to consider the judgment of the Supreme Court in Jadesimi v. Okotie–Eboh (1996) 35 LRCN (Pt. 164) in order to determine whether or not the plaintiff/ respondent was the sole beneficiary of the estate of late Chief Festus Okotie–Eboh as she claimed in her statement of claim and the affidavit in support of the application ex-parte.
My reaction is that the argument of the appellant’s counsel in so far as it stressed the importance of locus standi in civil proceedings is well founded. It is indeed a matter well settled in Nigerian jurisprudence by so many judicial authorities from our highest courts: See Adesanya v. President (1981) 5 S.C 112; Thomas v. Olufosoye (1986) I NWLR (Pt. 18) 669.
In paragraphs 1,5 and 6 of her Statement of Claim, the plaintiff pleaded thus:
“1. The Plaintiff is the daughter and sole beneficiary of the estate of her late father, Chief Festus Okotie-Eboh as declared by the Supreme Court of Nigeria in SC. 188/1992 delivered in Abuja on the 6th day of February, 1996 and reported as Jadesimi v. Okotie-Eboh (1996) 35 LCRN 164.
It is apparent from the above that the plaintiff’s claim was rested on the fact that she was the sole beneficiary of the estate of the late Chief Festus Okotie – Eboh. She brought her suit in respect of the property in dispute No. 1 Milverton Road, Ikoyi, which was one of the properties comprised in the estate of late Chief Festus Okotie–Eboh. The argument that the judgment in Jadesimi v. Okotie – Eboh (Supra) did not declare the plaintiff/respondent the sole beneficiary of the estate of Chief Festus Okotie–Eboh is another way of raising an issue of fact that the plaintiff/respondent did not establish by her pleadings that she was the sole beneficiary. But pleadings only put across the facts upon which a party intends to rely at the trial of the suit. They do not constitute the evidence to be relied upon in proof of the averment. A defendant who contends that a plaintiff has no locus standi having regards to the facts pleaded by the plaintiff as in the circumstances of this case where trial had not commenced must be taken as admitting the truth of the averments on the Statement of Claim in relation to the locus standi of the plaintiff: Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669.
The defendant cannot at this state contest a matter which falls entirely into the realm of ‘proof’. To allow the defendant to do so is to impose on the plaintiff the burden to first prove his case in order to be entitled to interim reliefs. Clearly, that is not the law. The appellant’s counsel’s argument as to proof of locus standi is premature and does not properly arise at this stage.
Was the ex parte of injunction properly made by the lower court? In order to answer this question, it is necessary to fully understand the purpose to be achieved upon an ex parte application for injunction. In Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt. 98) 419 at 442, the Supreme Court said concerning interim injunction:
“Interim injunction on the other hand … while often showing the trammels of orders of injunction made ex parte are not necessarily coterminous with them. Their main feature which distinguishes them from interlocutory injunction is that they are made to preserve the status quo until a named date or until further order or until an application on notice can be heard. They are also for cases of really urgency. But, unlike ex parte orders for injunction, they can be made during the hearing of a motion on notice for interlocutory injunction when, because of the length of the hearing, if it is shown that an irretrievable mischief or damage may be occasioned before the completion of hearing. Also it can be made to avoid such an irretrievable mischief or damage when due to the pressure of business of the court or through no fault of the applicant it is impossible to hear and determine the application on notice for interlocutory injunction: See Beese v. Woodhouse (1970) 1 W.L.R. 586, at. 590. It must, however, be emphasized that what the court does in such a case is not to hear the application for interlocutory injunction ex parte, behind the back of the respondent, but to make an order which has the effect of preserving the status quo until the application for interlocutory injunction can be heard and determined. This is the way I see the dicta of Griffith, C.J. in Thomas Edison Ltd. v. Bullock (1912) 15 C.L.R. 679, at Pt. 681 which Chief Williams has cited in argument. The learned C.J. said:
“There is a primary precept governing the administration of justice, that no man is to be condemned unheard; and therefore, as a general rule, no order should be made to the prejudice of a party unless he has the opportunity of being heard in defence. But instances occur where justice could not be done unless the subject-matter of the suit were preserved, and, if that is in danger of destruction by one party, or if irremediable or serious damage be imminent, the other may come to the court, and ask for its interposition even in the absence of his opponent, on the ground that delay would involve greater injustice than instant action.”
And at page 449, the Supreme Court said
“Also the basis of granting any ex parte order of injunction, particularly in view of section 33(1) of the Constitution of 1979, is the existence of special circumstances, invariably, all-pervading real urgency, which requires that the order must be made, otherwise an irretrievable harm or injury would be occasioned to the prejudice of the applicant. Put in another way, if the matter is not shown to be urgent, there is no reason why ex parte order should be made at all: the existence of real urgency, and not self-imposed urgency, is a sine qua non for a proper ex parte order of injunction.”
It is for the purpose of protecting an applicant from a harm or injury of an urgent nature that ex parte orders are made. If the facts presented to Court are such that if an ex parte order of injunction is not made, an injury which may prove irretrievable or irreversible may be done to the applicant the Court may intervene. It must be shown however that the matter is really urgent.
In the instance case, the applicant deposed thus in paragraphs 2 to 10 of the affidavit in support.
What the applicant had said in the deposition above in a summary is that in spite of the judgment of the Supreme Court in 1996 which declared her the sole beneficiary of the estate of Chief Festus Okotie-Eboh, the respondents had forcibly controlled and or occupied the property in dispute. However, at the time she brought her application the property had “recently become vacant” The applicant therefore asked that the appellants be restrained from continuing with their illegal acts of trespass.
It seems to me that the statement that the property had recently become vacant” when related to the statement that the appellants had after the judgment of the Supreme Court forcibly occupied the property in dispute was rather vague and inexplicit. Was it that the appellants had given up their forcible occupation of the property or that persons by whom the appellants forcibly controlled the property withdraw therefrom but with the appellants still constructively in possession? These question become necessary because if the situation was that the appellants, following the judgment of the Supreme Court, had a rethink and decided to stop a resistance to plaintiff’s declared ownership rights, why was it necessary to seek the intervention of the Court by the grant of an order of injunction?
The irresistible impression created is that the appellants rightly or wrongly were physically or constructively in possession of the property and were intent on resisting the plaintiff’s legal right to the ownership and possession of the property. The legal position therefore is that the status quo ante belum was the situation where the defendant/appellants were in possession. The order of the lower Court was made in these words;
“Upon reading the affidavit in support of this application and after listening to the submission of learned counsel for the plaintiff/appellant Mr. Ike Imo, I am satisfied that the plaintiff has established exceptional circumstances to justify taking this application ex parte. I am satisfied that the plaintiff/appellant has sufficient interest to justify the intervention of this Court for the protection of that interest.
I am of the view that it is in the interest of justice to maintain the status quo ante-belum.
Accordingly upon the undertaking as to damages to be given by the plaintiff/appellant in the event that this order of interim injunction is found to be made without jurisdiction. An order of injunction is hereby made restraining the defendants as prayed pending the hearing and final determination of the Motion on Notice for an order of interlocutory injunction dated 9th April 1999 and which motion is hereby adjourned till Wednesday 28th April 1999 for arguments”.
Since the order of injunction of the Lower Court was granted as prayed, this translated into an order restraining the appellants from “occupying, leasing, renting, dealing or from interfering with or in any way impeding or disturbing the peaceful and uninterrupted access of the plaintiff/appellant to the use of the property located at No. 1 Milverton Road, Ikoyi, Lagos, the subject matter of this suit…”
With respect to the learned trial judge, I think the order as made above was rather too wide and certainly wider than the circumstances warranted. It in effect altered the status quo rather than protect it. It may well be that the plaintiff might show herself at the end of hearing to be entitled to an order in that form but upon a motion ex parte, it was bound to be prejudicial to the interests of the appellants.
In the final conclusion, I would allow this appeal. The ruling made by the Lower Court on 19/4/99 is set aside. The Lower Court is to proceed with a consideration of the motion on notice for interlocutory injunction if the plaintiff still wishes to pursue it. I award in favour of the appellants costs assessed at N5,000.00.
SULEIMAN GALADIMA, J.C.A:
I had the advantage of reading in draft the judgment of my learned brother Oguntade, JCA, just delivered.
I agree with the reasoning and the conclusion he arrived at in allowing this appeal, and the order made on costs.
P.O. ADEREMI, JCA:
I have had a preview of the judgment just delivered by my learned brother Oguntade, J.C.A. I agree with the reasoning and conclusion reached that the appeal has merit. I also allow it and set aside the ruling of the court below given on 19/4/99. I abide with the other consequential orders contained in the ruling including order as to cost.
CASES REFERRED TO IN THE JUDGMENT
Adefulu v. Oyesile (1989) 5 NWLR (Pt. 122) 377.
Adesanya v. President (1981) 5 S.C 112.
A-G, Enugu State v. Avop (1995) 6 NWLR (Pt. 399) 90.
Beese v. Woodhouse (1970) 1 W.L.R. 586, P. 590.
Busari v. Oseni (1992) 4 NWLR (Pt. 237) 557.
Ebongo v. Uwemedimo (1995) 8 NWLR (Pt. 411) 22.
Gombe v. P.W. (Nig.) Ltd (1995) 6 NWLR (Pt. 402) 402.
Jadesimi v. Okotie-Eboh (1996) 35 LCRN 164.
Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt. 98) 419.
Thomas Edison Ltd. v. Bullock (1912) 15 C.L.R. 679.
Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669.
Williams v. Dawodu (1988) 4 NWLR (Pt. 87) 189.