3PLR – FASORO AND ANOTHER. V. BEYIOKU AND OTHERS
FASORO AND ANOTHER
V.
BEYIOKU AND OTHERS
IN THE COURT OF APPEAL
IBADAN JUDICIAL DIVISION
CA/I/M.9/97
22ND JUNE 2000
3PLR/2000/94 (CA)
OTHER CITATIONS
2 NWLR (Pt.76) 263
BEFORE THEIR LORDSHIPS
MORONKEJI OMOTAYO ONALAJA, JCA
FRANCIS FEDODE TABAI, JCA
OLUFUNLOLA OYELOLA ADEKEYE, JCA
BETWEEN
- BAJELA OLOYEDE FADINA
- OLUWAGBEMIGA OLOYEDE FADINA
- ADEMOLA OLOYEDE FADINA
- JULIANA OLOYEDE FADINA
AND
VEEPEE INDUSTRIES LIMITED
REPRESENTATION
B.A.M. Fashanu ESQ., – Counsel for the Appellants
O.T. Akinbiyi ESQ., – Counsel for the Respondent
MAIN ISSUES
REAL ESTATE – LAND LAW – Interlocutory injunction – whether court can grant without the filing of survey plan.
PRACTICE AND PROCEDURE – INJUNCTION – Interlocutory injunction – grant of.
MAIN JUDGEMENT
F.F. TABAI, J.C.A. (delivering the leading judgment)
This appeal is sequel to a ruling of Hon. Justice Ogunlesi-Adio of the Otta Judicial Division of the High Court of Ogun State on the 3/12/96. In the motion which gave rise to the ruling the Plaintiffs /Respondents sought the following:-
“(a) An order of interlocutory injunction commanding the defendants/respondents to rub-off inscription on the walls of the properties situated at No. 46 Idiroko Road, Sango Otta and No. 15 Idiroko Road, Sango Otta (being the properties in dispute in this case) to the effect that the properties belong to them – children of Prince T.O. Fadina (deceased).
(b) An order of interlocutory injunction restraining the defendant/respondents be themselves or their servants, agents or privies from interfering in any way whatsoever with the plaintiffs enjoyment by occupation or letting only of the properties in dispute in this case pending the determination of this suit.
(c) An order putting the plaintiff/ applicant at liberty to amend the writ of summons and statement of claim in terms of the underlined portions of the proposed amended writ of summons and statement of claim filed herewith as “Exhibit Veepee 1 and Veepee 2” respectively.
The 3rd relief for amendment of the writ of summons and Statement of Claim were granted without opposition on the 3rd of July 1996. Argument was taken on the 6th November 1996 with respect to the 1st and 2nd reliefs for injunction. In a considered ruling on the 3rd of December 1996 the learned trial judge Ogunlesi-Adio, J. granted reliefs (a) and (b) as prayed.
It is against this ruling that this appeal is presented before us. The parties through their counsel filed and exchanged their briefs of argument. The Appellants’ Brief and Reply Brief prepared by B.A.M. Fashanu while that of the respondent was settled by O.T. Akinbiyi. Based on the four grounds of appeal learned (sic) for the appellants formulated the following two issues for determination:-
“(1) Whether the learned judge was wrong in granting the application for interlocutory injunction without considering whether damages would not be sufficient remedy to the applicant if the injunction was refused.
(2) Whether having regard to the documents, affidavit evidence before the court and the circumstances of the case, the learned judge did not fail to exercise his discretion judicially and judiciously.”
On his part, learned counsel for the respondent Mr. Akinbiyi raised the following issues:-
“(1) Whether the subjects for which orders of interlocutory injunction were sought were properly and clearly identified.
(2) Whether the lower court rightly appraised the principles governing the grant of an Order of interlocutory injunction in favour of the Respondent.”
The two sets of issues are in my view the same in substance and can be answered in one broad question.
It is whether having regard to the affidavit evidence before the trial court and the principles governing the grant of interlocutory injunctions the learned trial judge exercised his discretion judiciously and judicially in granting the injunction. The main issues canvassed in both briefs are (1) whether there was proper identity of the properties in respect of which the injunctive orders were made, the question of adequate compensation to the plaintiff/respondent if the injunctions were refused and if eventually won, the question of balance of convenience and whether the reliefs granted was tantamount to granting the reliefs in the substantive claim.
On the issue of adequate recoverable damages in the claims learned counsel for the Appellants referred to the N10,000,000.00 claim, the plaintiff’s manifest intention to sell the properties in paragraphs 9, 10 and 12 of the supporting affidavit and the Appellant’s resolve not to sell the properties and submitted that since the plaintiff would have been adequately compensated if the application were refused and if eventually won in the end. For this he relied on Kotoye v. CBN (1989) All NLR 76 at 94-95. He submitted that Ibenwelu v. Lawal (1971) All NLR 24 did not apply.
With respect to the identity of the properties for which the injunctive orders were made learned counsel referred to the discrepancies in the description of No. 15 Idiroko Road in the writ of summons, in the application for interlocutory injunction and in Exhibit VEEPEE 3 and the Appellants’ description of same as comprising 3 detached buildings with service guarages and contended that the identity of the properties is not certain. According to him only a plan could have ascertained the properties and in the absence of a plan the application ought to have been refused.
With regard to the balance of convenience learned counsel argued that in view of the plaintiff’s intention to sell the properties, the failure to prove the exact boundaries of the land, the failure to prove irreparable injury to the plaintiff if the injunction were refused, and the averments of the appellants and their tenants being in possession of the property and argued that the balance of convenience in favour of the appellants.
He argued that by the order to rub-off the inscription of Caveat Emptor, the learned trial judge had already decided that the appellants’ claim to the properties was wrongful and which decision ought not to be made at this interlocutory stage. He relied on Obeya Memorial Specialist Hospital v. A.G. Federation (1987) 3 NWLR (Pt. 60) 325. Finally learned counsel urged that the appeal be allowed.
On behalf of the respondent, Mr. Akinbiyi argued as follows:
With respect to whether damages would adequately compensate the plaintiff/respondent for injuries it would have sustained upon a refusal of the application and it eventually wins, it was contended that the injuries would be colossal and not such for which it could be compensated adequately and that it would be oppressive to the respondent to refuse the injunction.
On the identity of the properties to which the injunctive order applied learned counsel argued that the Caveat Emptor inscriptions were stated to be on the properties at No. 15 and 46 Idiroko Road and in respect of which the first relief was sought and granted. With regard to the 2nd relief, it was contended that the inscriptions on the walls of the properties to the effect that they belong to the defendant/appellants was sufficient proof of the identity of the subjects for which the injunctive orders were sought and granted. Exhibits Veepee 3, Veepee4, Veepee 5 and Veepee 6 were referred to as further descriptions and details about the properties. Further reliance was placed on the proposed Amended Statement of Claim attached to the affidavit in support of the motion as Exhibit Veepee 2. It was submitted that the court was at liberty to consider all documents in its file in order to do justice even if such documents have not been referred to. For this proposition learned counsel relied on Mhambe v. Shibi (1994) 2 NWLR (Pt. 326) 321 at 330 and Sodinu v. N.P.A. (1975) NSCC 188 at 193.
On balance of convenience learned counsel for the Respondent argued that from all the circumstances more justice will result in granting the injunction to remove the inscriptions saying that since the Respondent has by paragraph 16 of the affidavit in support of the application undertaken not to sell the property pending the determination of the case, the inscriptions. He argued that since the trial was satisfied as to the plaintiff’s being in possession and would not ascertain the truth or otherwise of the defendant’s /appellants’ also being in possession it only accorded with common sense to grant the injunction so as to protect the property from dilapidation for disuse. Finally it was urged that the appeal be dismissed.
In an application for interlocutory injunction the factors which should be taken into consideration include:
(a) Whether the applicant has a legal right for which protection the interlocutory injunction is sought and that there are reasonable chances of success Nigerian Civil Service Union v. Essien (1985) 3 NWLR (Pt. 12) 306; ACB v. Awogboro (1991) 2 NWLR (Pt. 76) 711 at 719.
(b) Whether there is a serious question to be tried and that applicant has a real possibility not a probability of success at the trial (Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419; Obeya Memorial Specialist Hospital v. A-G. Federation & Anor, (1987) 3 NWLR (Pt. 60) 325.
(c) Whether the balance of convenience is in favour of the Appellant i.e. whether more justice will result in granting the injunction than in refusing it (Ilechukwu v. Iwugo (1989) 2 NWLR (Pt, 101) 99 and ACB v. Awogboro (supra) and Kotoye v. CBN (supra).
(d) Whether damages would be adequate compensation for the applicant if the interlocutory injunction is refused and he wins in the substantive suit at the end of the day (Abdullah v. Gov. of Lagos State) (1989) 1 NWLR (PT. 97) 356; Saraki v. Kotoye (1990) 4 NWLR (Pt. 143) 144 at 187; Union Beverages Ltd. v. Pespsi Cola International Ltd. (1994) 3 NWLR (Pt. 339) 1 at 17.
(e) Whether the applicant’s conduct is not reprehensible for example by not being guilty of any undue delay in bringing the application.
(f) In land matters whether the property in respect of which the interlocutory injunction is sought and/or obtained can be identified or ascertained. (Dabup v. Kolo (1993) 9 NWLR (Pt. 317) 254 at 269.
(g) And no order of interlocutory injunction should be made without a satisfactory undertaking as to damages save in exceptional cases (Kotoye v. CBN (supra); West African Oilfield Services v. Pelfaco Ltd. & Anor, (1984) 1 NWLR (Pt. 319) 164 at 189
The first issue was the identity of the properties in respect of which the injunctive orders were made. The substance of the contention of learned counsel for the Appellants is that in view of some discrepancies in the plaintiff/applicant’s description of the properties, the extent of the areas to which the injunctions were sought were not certain and in the absence of plans identifying the areas the injunction ought to have been refused. In considering this issue, the trial court first expressed the view that although it was required to decide the application on the affidavit evidence before it, it could not close its eyes to the amended writ of summons and amended Statement of Claim wherein references were made to the survey plans of the properties. The court held that since the plaintiff/applicant was not required to prove title to the properties at this interlocutory stage, failure to file the said plans in the application was not fatal to the application. In the court’s view the writ of summons, the statement of claim, the depositions in paragraphs 6, 7, 9 and 10 of the supporting affidavit and exhibits VEEPEE 5 and VEEPEE 6 clearly and sufficiently described the properties. In the first place it is settled law that while considering an application for an interlocutory injunction a court is entitled to look at the whole case before it and make reference to such documents in the case filed as affidavits and pleadings in order to arrive at a just decision. See West African Oilfield Services v. Pelfaco & Anor, (1994) 1 NWLR (Pt. 319) 164 at 182; Mhambe v. Shidi (1994) 2 NWLR (Pt. 326) 321 at 329; Fumudoh v. Aboro (1991) 9 NWLR (Pt. 214) 210 and Oke v. Aiyedun (1986) 2 NWLR (Pt. 23) 548.
The trial court was therefore right, in my view, to refer to the description of the properties as contained in the amended writ of summons and amended Statement of Claim. I also endorse the view, to refer to the description of the properties as contained in the amended Statement of Claim. I also endorse the view of the trial court that for the purpose of this application the plaintiff was not required to prove its title to the properties. All that was required of it was proof that it has reasonable chances of success and that the action was therefore not frivolous. In such circumstances such descriptions of the properties as was sufficient to ascertain the properties for which the interlocutory orders were sought were enough. I have agreed therefore that the writ of summons, the amended statement of claim, the depositions in paragraphs 6, 7, 9 and 10 of the affidavit in support of the motion and exhibits VP5 and VP6 attached thereto sufficiently describe the properties for which the interlocutory orders were sought and granted. The issue was further simplified because the injunctions were sought and granted in relation to the physical structures buildings on which walls the Defendants/Appellants inscribed the Caveat Emptor notice. On this issue, I do not have any strong reason to fault the conclusion of the learned trial judge that for the purpose of the interlocutory injunctions the properties were sufficiently identified and ascertained. I would therefore resolve that issue in favour of the Respondents.
The learned trial judge appeared to have treated the issues of balance of convenience and irreparable injury or damages for which the plaintiff cannot be adequately compensated in damages together. The trial court concluded that from the affidavit and counter-affidavit there is a serious question to be tried. The question is who owns the properties No. 15 Idiroko Road, Sango-Otta and No. 46 Idiroko Road, Sango-Otta? The Plaintiff/Respondent pleaded documents by which title in the properties were allegedly transferred to it by their former owner, Prince T.O. Fadina (deceased) who was the father of the Defendant/Appellants. The Defendants/Appellants on the other hand had contended that title to the properties remained in their late father until his death and that the signatures of their father in the documents by which he purportedly transferred his title in the properties to the Plaintiff/Respondent were in fact forged. It is their ascertion in the counter-affidavit that their late father lived in the properties until he died and since his death they (Defendant/Appellants) have been in possession and even have tenants therein. In an attempt to disprove the Plaintiff/Respondent’s claims, they even alleged inaccuracies and discrepancies in the plaintiff’s descriptions and contents of the properties. These, no doubt, raise serious issues for trial in the substantive case and the trial court advisedly, and correctly in my view, refused comments on them.
Now the Caveat Emptor Notice reads:
“CAVEAT EMPTOR”
LET THE BUYER BEWARE, THIS HOUSE IS NOT FOR SALE.
OWNER: CHILDREN OF PRINCE T.O. FADINA.
ENQUIRES TO: LAW CHAMBER NO. 9 CATER STREET EBUTE- METTA LAGOS.
TEL 864424.”
The above constitutes a notice and a warning to the whole world that anybody who buys the house was buying the property of the children of Prince T.O. Fadina – the Defendant/Appellants. It is a notice, a warning and an advertisement that the property on which it was inscribed belongs to the Defendants/Appellants. Considering the issue of balance of convenience the trial court said at page 56 lines 21-26:-
“On the balance of convenience, having given an undertaking in the affidavit that the plaintiff will not sell until the case is determined and that he will compensate the Defendants in damages if it turns out that he was not entitled to the orders sought, I am of the view that to allow the inscriptions to remain until the end of this case would constitute such injury to the plaintiff which cannot be compensated in damages.”
And at page 57 lines 20-22 the court made reference to the fact that the plaintiff/applicant had not sought another inscription proclaiming itself the owner of the property be substituted for that of the Defendants/Appellants. In these circumstances the trial court felt that pending the trial and determination of the main issue in the substantive case of who has title to the properties in dispute, to allow the inscription to remain would occasion such injury to be Plaintiff/Respondent for which it cannot be adequately compensated in damages in this action.
I think the trial court was right in its assessment of the situation. The inscriptions complained of would not in any conceivable sense, place the Defendants/Appellants at an advantage in their bid to prove their title to the properties in dispute at the trial in the substantive suit. But having regard to the finding by the trial court that the plaintiff’s claim is not merely frivolous, allowing the inscriptions to remain until the conclusion of the substantive suit would continue to be embarrassing to the Plaintiff/Respondent. For the fair trial of the main issue of title to the substantive suit it is only fair and proper that the parties be restored to the status quo before the inscriptions were made by the Defendants/Appellants. In other words since at the trial of the main issue of title in the substantive suit, the Defendants/Appellants would not derive any benefit from the inscriptions, they would lose nothing if same is erased from the walls of the buildings in dispute. While leaving it to remain would continue to be embarrassing and injurious to the Plaintiff/Respondent. On the issue of balance of convenience therefore, more justice would result from granting the injunction sought than in refusing it.
With respect to the 2nd relief granted, its underlying considerations and purport can only be fully appreciated from the passage itself. At page lines 28-35 of the record the learned trial judge declared:-
“plaintiff/applicant by his prayer (b) seeks to occupy or let the buildings. The Defendants say they are in possession. I cannot determine the truth or otherwise of the Defendants’ claim to being in possession now. I therefore grant the prayer (b) of the plaintiff with the condition that no tenant or occupier actually living in or carrying on business at No. 15 Idiroko road be ejected without leave of this court. The plaintiff and Defendants are therefore ordered to file in court within 7 days from today the names and/or businesses of any and all those actually physically in the said buildings.”
The Plaintiff/Respondent alleged that upon the purchase of the properties he took up possession of them. The Defendants/Appellants denied any sale or assignment of properties to the plaintiff and alleged that their late father since his death his children have been in possession. They also claim to being in possession through their tenants who use the premises for residential and business purposes. The trial court, rightly in my view, held that it could not determine the truth or falsity of the claims to possession at that interlocutory stage and pending the determination of these and other issue at the trial granted the above order. In the exercise of its discretion the trial court granted the relief with the conditions that “the tenant or occupier actually living in or carrying on business at No. 15 Idiroko Road be ejected without its leave.” By this order the trial court seems to have accommodated not only the interests of the Plaintiff/Respondent but also the interest of the Defendants/Appellants and their tenants at No. 15 Idiroko Road. To my understanding the purport of the order is that pending the determination of the suit the plaintiff’s enjoyment of the properties in dispute by occupation and letting is confined to only such parts or apartments of the properties not actually occupied by the Defendants, their agents and tenants. In these circumstances it cannot be strongly contended that the order is wholly in favour of the Plaintiff/Respondent. In my view the order serves to protect the interest of both parties and thus best meets the end of justice in the case. On these twin issues of balance of convenience and irreparable injury to the Plaintiff/Respondent, I have no strong reasons also to question the decision of the learned trial judge. I therefore also resolve these issues in favour of the Respondent.
Before I conclude, it is pertinent to point out from the facts contained in the affidavit evidence the learned trial judge’s reasoning and conclusions demonstrate a classic example of a trial court’s proper use of its discretionary powers. The trial court’s reasons for the various conclusions are in my assessment quite sound and founded on correct principles of law. It is settled law that an appellate court does not normally interfere with a trial court’s exercise of its discretion merely because if it were faced with a similar situation it would have exercised its discretion differently. An appellate court can only interfere if the lower court is found not to have applied the correct principles of law. See Saraki v. Kotoye (1990) 4 NWLR (Pt. 143) 144 at 174 and 188; Mhambe v. Shidi (1994) 2 NWLR (Pt. 326) 321 at 329; University of Lagos v. Olaniyan (No. 1) (1985) 1 NWLR (Pt. 1) 156; Williams v. Hope Rising Voluntary Funds Society (1982) 1 All NLR (Pt. 1) 1 and Solanke v. Ajibola (1968) 1 All NLR 46 at 51. In this case, even if I were faced with similar facts and circumstances, I would not have exercised my discretion differently. I am satisfied that in making the order complained of, the learned trial judge acted both judiciously and judicially. I have no reason and therefore I would not interfere with the court’s discretion in the matter.
In conclusion I hold that the appeal lacks merit and is therefore dismissed. The decision and orders of the learned trial judge is hereby affirmed. I assess the costs of this appeal at N3,000.00 in favour of the Respondent.
MORONKEJI OMOTAYO ONALAJA, J.C.A.
It has been delightful, honour and privilege reading in draft the lead judgment of my learned brother Tabai, J.C.A. just handed down.
The judgment was about whether applying the principle of law laid down in a strong and line of authorities of the Supreme Court and this court on the approach to grant or refuse interlocutory injunction which must be granted whether nisi prius or appellate court judicially and judiciously and whether the learned trial Judge exercised the discretion on sound principles which read the lead judgment having found the judgment of the lower court impeccable to have rightly affirmed and confirmed the judgment of the lower court.
Upon a cool, calm view of the lead judgment, I found the reasoning and conclusion on the grant or refusal of interlocutory injunction boldly stated that I endorse same giving me no alternative than to adopt the reasoning and conclusion as my own.
With the exhaustive approach and sound application of the principle of law on grant or refusal of interlocutory injunction supported with relevant and up-to-date judgments of the Supreme Court and this Court, for the fuller reasons given in the lead judgment with which I am in full and complete agreement and as I have nothing more useful to proffer, I concur that the appeal was rightly dismissed and is also hereby dismissed by me.
I abide with the consequential orders made in the lead judgment especially the order of costs.
OLUFUNLOLA OYELOLA ADEKEYE, JCA.
I had the opportunity of reading in draft the judgment just delivered by my learned brother F.F. Tabai JCA. I share his reasoning and conclusion that the appeal lacks merit and is therefore dismissed. The decision and orders of the learned trial judge is affirmed. N3000 is awarded in favour of the Respondents.
Cases referred to in the judgment
Abdullah v. Gov. of Lagos State (1989) 1 NWLR (Pt. 97) 356.
ACB v. Awogboro (1991) 2 NWLR (Pt. 76) 711 at 719.
Dabup v. Kolo (1993) 9 WLR (Pt. 317) 254 at 269.
Fumudoh v. Aboro (1991) 9 NWLR (Pt. 214) 210.
Ibenwelu v. Lawal (1971) All NLR 24.
Ilechukwu v. Iwugo (1989) 2 NWLR (Pt. 101) 99.
Kotoye v. CBN (1989) All NLR 76 at 94-95 (1989) 1 NWLR (Pt. 98) 419.
Mhanbe v. Shibi (1994) 2 NWLR (Pt. 326) 321 at 330.
Nigeria Civil Service Union v. Essien (1985) 3 NWLR (Pt. 12) 306.
Obeya Specialist Hospital v. A.G. Federation (1987) 3 NWLR (Pt. 60) 325.
Oke v. Aiyedun (1986) 2 NWLR (Pt. 23) 548.
Saraki v. Kotoye (1990) 4 NWLR (Pt. 143) 144 at 187.
Sodimu v. NPA (1975) 188 at 193.
Solanke v. Ajibola (1968) 1 All NLR 46 at 51.
Union Beverages Ltd. v. Pepsi Cola International Ltd. (1994) 3 NWLR (Pt. 330) 1 at 17.
University of Lagos v. Olaniyan (No. 1) (1985) 1 NWLR (Pt. 1) 156.
West African Oilfield Services v. Pelfaco Ltd. & Anor. (1984) 1 NWLR (Pt. 319) 164 at 189.
Williams v. Hope Rising Voluntary Funds Society (1982) 1 All NLR (Pt. 1) 1.
