TOTAL NIGERIA PLC
VICTORIA ISLAND & IKOYI RESIDENTS
COURT OF APPEAL
(2004) 7 NWLR (Pt. 873) 446
BEFORE THEIR LORDSHIPS:
JAMES OGENYI OGEBE, J.C.A. (Presided)
PIUS OLAYIWOLA ADEREMI, J.C.A. (Read the Leading Judgment)
CHRISTOPHER MITCHEL CHUKWUMA-ENEH, J.C.A.
TOTAL NIGERIA PLC.
Idongesit Uko, ESQ. – For the Appellant
Lawal Pedro, ESQ. with him, Adebayo [Mrs] – For the 6th Respondent
PRACTICE AND PROCEDURE – ACTION – Parties to an action – Non-joinder or misjoinder of parties – Effect – Whether fatal to proceedings.
PRACTICE AND PROCEDURE – ACTION – Right of action – Public nuisance – Who may maintain- When exercisable by private person.
PRACTICE AND PROCEDURE – ACTION – Right guaranteed under the Constitution – Infringement of – Person whose rights have been breached – Whether can sue government or its institutions – Whether requires consent of Attorney-General to so do – Present position of the law.
CONSTITUTIONAL LAW – Fair hearing as enshrined in section 36 of the 1999 Constitution – Meaning and nature of-Need for strict adherence thereto – Party who waives right under the rules to prepare for a case – Whether can complain of breach of fair hearing.
TORT AND PERSONAL INJURY – DAMAGES – “Damages” – Meaning of-Assessment of-Principles guiding.
ESTOPPEL – Waiver – Meaning and incidence of
CONSTITUTIONAL LAW – FAIR HEARING – Fair hearing as enshrined in section 36 of the 1999 Constitution – Meaning and nature of – Need for strict adherence thereto – Party who waives his right under the rules to prepare for a case – Whether can complain of breach of fair hearing.
CONSTITUTIONAL LAW – FAIR HEARING – Rights guaranteed under the Constitution – Infringement of – Person whose rights have been breached – Whether can sue government or its institutions – Whether requires consent of Attorney-General to so do – Present position of the law.
PRACTICE AND PROCEDURE – INJUNCTION – Interlocutory injunction – Purpose of- Application for – Grant or refusal of – Principles guiding.
PRACTICE AND PROCEDURE – INJUNCTION – Interlocutory injunction – Balance of convenience – Weighing of-Relevant considerations.
PRACTICE AND PROCEDURE – INJUNCTION – Interlocutory injunction – Application therefor – Determination of – Duty on court – Need to avoid resolving conflicts in affidavit evidence upon which the main suit is predicated – Need to avoid prejudging substantive suit.
TORT AND PERSONAL INJURY – NUISANCE – Public nuisance – Right of action therefor – When exercisable by private person.
PRACTICE AND PROCEDURE – Applications – Interlocutory application – Determination of-Duty on court to refrain from prejudging substantive suit.
ADEREMI, J.C.A. (Delivery the Leading Judgment):
This is an appeal against the ruling of the court below (High Court of Lagos State) granting the first leg of the application dated 29th June, 1999 praying for an order restraining the defendants (the present appellant and the 6th defendant/respondent, from entering or further entering or digging, excavating or erecting a petrol filling station on the parcel of land situate at Osborne Road, Ikoyi, Lagos and also an order directing the said defendants to restore the land to the original position it was before the excavation. The second leg of the application was refused. The plaintiffs/respondents had claimed a number of declaratory and injunctive reliefs against the defendant/appellant.
Being dissatisfied with the said ruling, the 1st defendant! appellant appealed against the said ruling by way of a notice of appeal dated 2nd August, 1999 with nine grounds of appeal. Distilled therefrom for determination by this court are five issues which, as set out in the brief of argument of the appellant, are in the following terms:
(1) Whether or not the lower court acted within its jurisdiction when it granted the 1st relief in the 1st to 5th respondents motion for interlocutory injunction when the suit was not properly constituted having regard to the substance of the 1st to 5th respondents suit and the materials placed before the lower court.
(2) Was the learned trial Judge right in not resolving the conflicting affidavit evidence before it, before granting the order of interlocutory injunction.
(3) Did the learned trial Judge exercise his discretion judicially and judiciously having regard to the facts and circumstances of this case when he granted the 1st order of interlocutory injunction against the appellant.
I (4)” Was the learned trial Judge right in hearing the, application for interlocutory injunction when there was pending to his knowledge the appellant’s motion for stay of further proceedings.
(5) Was the learned trial Judge right in not according the appellant reasonable and adequate time to present its case with regard to the hearing of the motion for interlocutory injunction.
The 1st to the 5th respondents who were the plaintiffs in the court below, for their part, raises four issues for determination; as set out in their brief of argument, they are as follows:-
(1) Whether the respondents suit is a challenge to decisions of Federal Government agencies upon which the Lagos State High Court lacked jurisdiction?
(2) Whether on the facts of this the Judge considered and applied the settled principles of law in granting the order of interlocutory injunction against the appellant?
(3) Whether from the circumstances of this case, the learned trial Judge exercised his discretion judicially and judiciously by hearing the motion for interlocutory injunction whilst an application for stay of proceedings was pending before him?
(4) Whether under the applicable rules of court, the appellant which was served with the motion on notice for interlocutory injunction on 29th June, 1999 was allowed reasonable time to react to same when the motion was eventually heard on 13th July, 1999?
The 6th respondent – the Attorney-General of Lagos State -adopted the issues raised by the appellant for determination. After a careful examination of the issues formulated by all sides, it is my considered view that issues Nos. 1 and 3 on the appellant’s brief and issues Nos. 2 and 3 contained in the 1st to 5th respondents’ brief can be taken together and I shall so do in this judgment. Issue No.5 on the appellant’s brief and issue No.4 on the 1st – 5th respondents are similar and they shall be taken together. I shall finally take issues 2 and 4 on the appellant’s brief and issue No.1 on the 1st -5th respondents’ brief seriatim.
On issue No.1 the appellant had contended that having failed to join as a party the appropriate Federal Government agencies that granted approval to the appellant to construct a petrol station at Osborne Road, Ikoyi, Lagos, the suit ought to have been struck-out, reliance was placed on the decisions in (1) Umar v. Onikata (1999) 3 NWLR (Pt. 596) 558, (2) Ubom v. Anaka (1999) 6 NWLR (Pt. 605) 99 and (3) Hiflow Fann Industry Ltd. v. University Of Ibadan (1993) 4 NWLR (Pt. 290) 719. On issue No.2 it was submitted that there was conflict in the evidence of the parties as to whether digging, or excavation or erection or work on the filling station was still in progress or whether it had been completed. It was the duty of the trial Judge to have reconciled that conflict. Failure to reconcile the conflict constituted serious misdirection which occasioned injustice’ to the appellant, support for this submission was found in (1) Ezegbu v. First African Trust Bank Ltd. & Anor: (1992) 1 NWLR (Pt. 220) 699 and (2) Uzondu v. Uzondu (1997) 9 NWLR (Pt 521) 466. On issue No.3, reference was made, in detail to the principles guiding the court in granting an application for interlocutory injunction: it was submitted that the trial Judge did not correctly apply the principles; the trial court therefore exercised its discretion improperly, it was finally submitted on this issue.
On issue No.2 on the respondents’ brief, while conceding that some of the principles governing the grant or refusal of an application for an interlocutory injunction were well stated in the appellant’s brief it was the contention of the respondents that all an applicant need show is only a possibility and not a probability of success at the trial, adding that once this requisite standard was made the order of interlocutory injunction would be made even if the defendant had a technical defence. The respondents, it was contended satisfied the trial court on these requirements and thus the order was rightly made.
Again it was submitted that the order granted, was not in the nature of a final order. The grant of an order of interlocutory injunction being an exercise of discretion, shall not be ordinarily set aside by an appellate court; the case of Ogunderu v. Adebayo & Ors. (1999) 6 NWLR (Pt. 608) 684 and Adeniji v. Tina George Industries Ltd.
(1998) 6 NWLR (Pt. 554) 483 were cited in support.
I shall start the consideration of the issues raised by the parties, the respective submissions of which I have recapitulated supra by saying that the main and crucial purpose of granting an order of interlocutory injunction to a plaintiff is no other than the mitigation of the risk of injustice to the plaintiff during the period when the uncertainty of either his legal right or the violation of it could be resolved. In resolving to grant the order, the court must be satisfied that the claim of the plaintiff is one that is not frivolous or vexatious;
in other words the court must be satisfied that there is a serious question that offers itself for trial. Let me go further to say that it is not part of the court’s functions at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which demand for detailed argument and mature considerations. Suffice it to say these are matters to be dealt with at the trial see (I) Obeya Memorial Hospital v. A.-G., Federation (1987) 3 NWLR (Pt. 60) 325 and (2) Kotoye v. C.B.N. (1989) 1 NWLR (Pt. 98) 419. The principle set out above is a radical departure from the old principle that an applicant for an order of interlocutory injunction must show a probability of entitlement to relief or a strong prima facie case. In Globe Fishing Ind. Ltd. v. Coker (1990) 7 NWLR (Pt. 162) 265, the Supreme Court recognized the departure when at page 294 it was observed:
“In point of fact the case of American Cyanamid Co. v. Ethicon Ltd. (supra) was cited with approval by this court in the case of Obeya Memorial Hospital v. A.-G., the Federation & Anor: (1987) 3 NWLR (Pt. 60) 325 at 337. This should be a final signal that even in this country, the old order has changed, yielding place to the new. This is as it should be.”
I now pause to examine the reasoning of the trial Judge in reaching the decision to grant the application; he said:
“The plaintiff s case has to do with saving life while that of the 1st defendant has to do with the lose (sic) of money. I hold that the balance of convenience is on the side of the plaintiff.
In the instant case, the 1st defendant has not said that the construction of the filling station on Osborne Road is completed. He says the major construction has completed. And in any case a filling station is completed when it is functional. Since it is not functional, it cannot be said to be completed. The filing station is still under construction .
There is no doubt that looking at the reliefs claimed in the writ of summons in the substantive action and the depositions in the affidavit in support of the application, the plaintiffs/applicants are asserting the existence of a right to ensure that the use of the area in question as originally planned and approved is sustained, that no filling station can be built on the land in question. The 1st defendant/respondent on his part denies the existence of the right. He contends that he is a registered lessor of the land in question and that they obtained the necessary approvals from the relevant Federal authorities before the construction of the filling station commenced. The second defendant on his part contends that it is only the Lagos State Government that is vested with power to regulate Urban and Regional Planning within Lagos State and that the construction of a filling station on Osborne Road, Ikoyi is in contravention of the Lagos State metropolitan master plan. There is therefore an issue between the parties as to the validity of the approvals given to the defendant to construct a filling station and the right of the plaintiffs to contest the said approvals and the issue of whether the 2nd defendant, that is the Lagos State Government has exceeded the jurisdiction to regulate Urban and Regional Planning within Lagos State. It stands to reason therefore that whilst these issues remain unsettled, and cannot be settled at this stage the parties should remain in status quo … Accordingly interlocutory injunction is granted as prayed.”
Since the decision on the Obeya case in which the decision in American Cyanamid Co. case was quoted with approval by the Supreme Court, it has come to be well established that only three questions must be answered by the court in granting or refusing an application for interlocutory injunction; and they are:
(1) Whether there exists a serious question to be tried.
(2) If the answer to (1) supra is in the affirmative, whether damages will be adequate compensation for the temporary inconvenience; and
(3) If damages will be inadequate compensation, then in whose favour is the balance of inconvenience?
As I have earlier said in this judgment, an applicant for this type of order need not show now that he will be entitled to this order at the end of the trial. Let it be said that an applicant can properly obtain an order of interlocutory injunction even though he has not made out a case that will entitle him to get an order of perpetual injunction see Globe Fishing Ind. Ltd. (supra). The plaintiffs in their affidavit evidence deposed to the existence of a right to subject the area in question in conformity with the standard shown in the original plan approved for that area. The 1st defendant however, in its counter- affidavit denied the existence of that right. I cannot but agree with the learned trial Judge that going by these depositions, there exists a serious question to be tried. Having answered the first question in the affirmative I now proceed to the second question, which is whether damages will be adequate compensation for the temporary inconvenience likely to result from the act of the 1st defendant! appellant. Generally, damages have been defined to be a sum of money given to a successful party as compensation for loss or harm of any kind resulting to him from the act of the defendant.
As was said in Admiralty Commissioners v. S. S. Valeria (1922) A.C. 242, in calculating damages to be paid, a trial Judge must always have his mind fixed on what is the pecuniary consideration which will make good to the sufferer, as far as money can do, the loss which he has suffered as the natural result of the wrong done to him.
From the printed evidence, it is clear that the construction of the petrol station has not been completed hence the filling station is not functional. In support of the grant of the application the plaintiffs/applicants who are the respondents deposed in paragraphs 11, 12,13, 14, 15, 16 and 17 as follows:
That formally, there were two main exits from Ikoyi to the outside world being Osborne Road and Awolowo Road, respectively.
That however, due to increasing commercialization, Awolowo road became congested to traffic thereby leaving Osborne Road as the only remaining main exit out of Ikoyi. .l1)r11,
That from past experience each time there is fuel scarcity in Nigeria and Lagos State in particular, which occurs frequently, all the roads where filling stations are situate became completely blocked
That for Ikoyi residents, whenever such situations occur, the only free road through which they can exit or enter their area is Osborne Road, basically because no filling stations are built along that road.
That most of the members of the 1st plaintiff are professionals and top executives whose offices are located outside Ikoyi and Victoria Island thereby necessitating that they must leave and return to their areas of residence by road on a daily basis.
That if the proposed filling station is allowed to operate, the plaintiffs will suffer untold hardships which will result from long stay in traffic.
That the plaintiffs, who hold very sensitive and strategic positions for both their establishments and the country stand to suffer immense detriments by way of loss of jobs for failure to arrive at their offices promptly; children in schools outside the two areas will find it impossible to arrive early to class and may face punishments, suspensions, distortions of curriculum and expulsions and road accidents are bound to occur thereby leading to loss of lives and property.
There is nothing in the counter-affidavit to counter effectively the contents of the above paragraphs. Can any sum of money be an adequate compensation for the very obvious sufferings and inconveniences highlighted in paragraph 17 supra? My answer to that question is in the negative. Were the plaintiffs to succeed at the end of the trial, it is my considered view that damages would not be an adequate compensation for the loss or inconvenience they might have suffered. Suffice it to say that the plaintiffs/respondents had been ordered to give an undertaking as to damages to indemnify the 1st defendant/appellant in’ the event that this application ought not to have been granted. The third question then is; in whose favour does balance of convenience a term, which Sir John Donaldson, M. R. described in Francome v. Mirror Group Newspaper Ltd. (1984) 1 WLR 892 as “a balance of justice rest.” This calls for the measurement of the scales of justice to see where the pendulum tilts. Who is likely to suffer more if the application were to be refused, is it the 1st defendant who is yet to complete the erecting of the station or the plaintiffs/respondents who will suffer the enormous detriments set out in paragraph 17 of the affidavit in support. From the materials before the court below, I am again of the view that the trial Judge was right in holding that the pendulum tilted in favour of the plaintiffs/respondents. It follows that from all I have been saying issues Nos. 1 and 3 on the appellant’s brief of argument and issues Nos. 2 and 3 in the 151 – 5th respondents’ brief must be answered in the affirmative and I hereby do.
I go on to issue No.5 on the appellant’s brief and issue No.4 on the 151 – 5th respondents brief both of which dwell on the issue of adequate opportunity being accorded to the appellant to respond to the application. Fair hearing which demands, inter alia, that all sides to be given adequate opportunity to be heard in any matter to which they are parties, is a most fundamental concept that must be strictly adhered to in adjudication. The principle is well enshrined in section 36 of the 1999 Constitution. The appellant had argued that it was not given adequate time to prepare for the motion on notice. On the other hand the respondents have argued to the contrary. It is not in dispute that the motion on notice was dated and filed on the 29th of June, 1999. Upon the service of the motion the defendant/appellant filed a counter-affidavit sworn to on the 13th July, 1999; suffice it to say that the respondents also filed a further and better affidavit. The application came up for argument before the trial Judge on 13th July, 1999 Mr. Alphosus appeared for the 1st defendant/appellant while Chief H. T. O. Coker, SAN appeared for the plaintiffs/respondents. I shall hereunder reproduce the proceedings of the day before that court which are germane to the consideration of these issues; they are as follows:
“N. Alphosus:- We have not been served with the affidavit of urgency H.T.O. Coker, SAN:- They have now brought in counter-affidavit
Court:- Are you ready
H.T.O. Coker, SAN:- My Lord has abundant evidence to show that construction is still going on, they served us in this court today. I ask that the status quo be preserved He should give an undertaking
Court:- Move please.”
From the above account, the hearing of the motion was not foisted on the defendant/appellant. Its entitlement to at least 48 hours before the hearing of the motion was recognized by the trial Judge and was going to adhere to it. Rather; it was the defendant/appellant who voluntarily decided to abandon its right to 48 hours to enable it prepare for the hearing of the case and decided to proceed with the hearing of the application. It has by that conduct led the respondents and of course, the court, to believe that the strict rights arising under the rules in its favour was not going to be insisted upon. That, in essence, is the practical meaning of waiver see Ariori & Ors. v. Elemo & Ors.
(1993) 1 SCNLR 1, (1983) 1 SC 13.
The afore-mentioned issue No.5 on the appellant’s brief and issue No.4 on the 1st – 5th respondents’ brief are answered in the affirmative.
Issue 2 on the appellant’s brief is non sequitur that there is no conflict in the printed evidence of both sides. Again, a trial Judge must not make any finding for the printed evidence before it which will give the impression that the main issue in a case has been considered in the course of taking on an application for interlocutory application. Issue No.2 is therefore resolved against the appellant.
On issue No.4 going by all that I have been saying supra a proper exercise of the Judge’s discretion would find expression in entertaining the application for an interlocutory injunction before that of stay of proceedings. The former is calculated to save the plaintiffs/respondents from further suffering and inconvenience, while the latter would continue to aggravate their sufferings. That issue is as well resolved against the appellant. Issue No.1 on the 1st- 5th respondents’ brief of argument pre-supposes that certain Federal Government agencies are necessary parties to the suit the absence of whom would not enable the court to effectually decide the case.
A close look at the reliefs sought discloses a dispute as to the legal efficacy of exercising certain rights. The 1st defendant/appellant has asserted its right to erect a filling station on the parcel of land. The 1st – 5th respondents are contending that the 1st defendant/appellant’s action constitutes an unlawful interference with their right to use of enjoyment of the land. In short, it would appear that they are suing for public nuisance; they are saying no more than that they have suffered special damage; they can on the authority of Hilder v. Associated Portland Cement Man Ltd. (1961) 3 AER 709 bring an action. A person to be sued in such an action is someone who bears some degree of personal responsibility if he creates the nuisance by some acts of misfeasance as opposed to mere non-feasance see Mint v. Good (1950) 2AER 1159. It has been entrenched from the time of promulgation of the 1979 Constitution that a citizen who perceives that his right has been infringed can bring an action against the government and its institutions or anybody deriving some right or benefit there from without obtaining the consent of the Attorney-General in order to obtain a redress of the violation of his rights see (1) Adediran v. InterlandTransportLtd. (1991) 9 NWLR (Pt. 214) 155.
Even, the practice is now to make the Attorney-General a party to the case as was done in the instant case, the property being in Lagos.
It must however be emphasized that in the instant case no action of the Federal Government agency was challenged. The 1st defendant/appellant is certainly not an agency of the Federal Government such that the Government should have been made a party. As I have said, that the Attorney-General for Lagos State, who by practice is always a nominal party, was joined, is borne out of the principle that a government owes it as its fundamental duty to ward off any public nuisance. And where the government fails to act and that nuisance affects a citizen adversely, he has the right to bring an action seeking a redress and making the Attorney-General, the number one law officer of the government a party, as was done in this case. Issue No. 1on the 151 – 5th respondents’ brief is thus answered in the negative.
All issues having been thus answered, it is my judgment that this appeal is unmeritorious. It is accordingly dismissed with cost of N5,000.00 in favour of the 1st – 5th respondents and N2,500.00 in favour of the 6th respondent.
OGEBE, J .C.A.: I read before now the lead judgment of my learned brother Aderemi, JCA just delivered and I agree with his reasoning and conclusion in dismissing the appeal. I too dismiss the appeal and affirm the ruling of the trial court. I endorse the order of costs made in the lead judgment.
CHUKWUMA-ENEH, J.C.A.: I have perused in advance the judgment just delivered by my learned brother Aderemi, JCA in this matter. He has treated all the issues raised in the matter eloquently and the conclusions flow naturally.
However, permit me to add that once as here it is clear to the Court that damages will not serve as adequate compensation for the damage which the refusal of an application of this nature i.e. for interlocutory injunction will occasion on the applicant, seeking injunctive relief, that is to say, that the damages cannot be quantified monetarily, the Court in order to keep matters in status quo where the action is not frivolous or vexatious has to consider the balance of convenience or as otherwise put in the case of Cayne v. Global Natural Resources PIc. (1987) 1 AER 225 per May, L. J. “the balance of the risk of doing injustice” as between the parties. This exercise calls as between the parties for the evaluation of the question of availability in the alternative of adequate remedy in damages with regard to the appellant’s claim and his ability to meet a cross- undertaking as to damages. On the authorities, these factors have enabled the court to determine the course that will enable it to avoid or minimize the risk of injustice to the parties.
It is against the foregoing reasoning that one has to approach the instant matter. I have seen no reasons having gone through the cases of the parties as borne out by their respective affidavit evidence to hold that the course of avoiding or minimizing the risk of injustice in this matter as between the parties is better served by refusing the application.
On the other question of the action not being properly constituted for non-joinder of proper parties in order to confer on the court the necessary jurisdiction to deal with the matter, it is settled that much as non-joinder or mis-joinder of parties may not defeat a claim as the instant claim and, indeed, a relief as the instant one, such an error, if at all, is capable of being remedied at any stage of the proceedings.
I must, all the same, refer to the decision in A.-G., Lagos State v. A.-G., Federation & Drs. (2003) 12 NWLR (Pt. 833) 1 where the Supreme Court has in granting one of the declarations sought in the cited case has pronounced on the development, approval, permits, licenses for buildings and physical development in Lagos State as the residual responsibility of Lagos State and in my view may have emphasised the issue of non-joinder of the Federal agency in this matter.
With these observations, I agree with my learned brother that there is no merit in the application and that it should be dismissed. I endorse the order contained therein.
Cases referred to in the judgment:
Admiralty Commissioners v. S. S. Valeria (1922) AC 242
American Cyanamid Co -V- Ethicon Ltd  2 Wlr 316
Cayne v. Global Natural Resources Plc. (1987) 1 All ER 225
Francome v. Mirror Group Newspaper Ltd. (1984) 1 WLR 892
Francome v. Mirror Group Newspapers Ltd. (1984) 1 WLR 892
Globe Fishing Ind. Ltd. v. Coker (1990) 7 NWLR (Pt. 162) 265
Hi-flow Farm Ind. Ltd. v. Univ. of Ibadan (1993) 4 NWLR (Pt. 290) 719
Hilder v. Associated Portland Cement Man. Ltd. (1961) 3 AER 709
Kotoye v. C.B.N. (1989) 1 NWLR (Pt. 98) 419
Mint v. Good (1951) 2 AER 1159
Obeya Memorial Hospital v. A.-G., Federation (1987) 3 NWLR (Pt. 60) 325
Ogundeu v. Adebayo (1999) 6 NWLR (Pt. 608) 684
Ubom v. Anaka (1999) 6 NWLR (Pt. 605) 99
Umar v. Onikata (1999) 3 NWLR (Pt. 596) 558
Uzondu v. Uzondu (1997) 9 NWLR (Pt. 521) 466
Nigerian Statute Referred to in the Judgment:
Constitution of the Federal Republic of Nigeria, 1999, S. 36