3PLR – APOSTLE ADEOLU AINA v. DR. OLUSANYA SONUGA

Published by Law Nigeria Admin at October 18, 2018

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR

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APOSTLE ADEOLU AINA

V. OLUSANYA SONUGA

IN THE COURT OF APPEAL OF NIGERIA

ON MONDAY, THE 26TH DAY OF NOVEMBER, 2012

CA/I/202/2008

3PLR/2012/12 (CA)

OTHER CITATIONS

BEFORE THEIR LORDSHIPS

MONICA B. DONGBAN MENSEM, JCA

CHIDI NWAOMA UWA, JCA

JOSEPH SHAGBAOR IKYEGH, JCA

BETWEEN

APOSTLE ADEOLU AINA (for himself and on behalf of Gunsenemo family) – Appellants

AND

OLUSANYA SONUGA (for himself and other members Of Ogbodo Sonuga family) – Respondents

ORIGINATING STATE

Ogun State: High court (Saula, J – Presiding)

CONNECTED AREAS OF PRACTICE

Real Estate Law
Litigation

REPRESENTATION

Lawal For Appellant

AND

O. Onayemi (Mrs) For Respondent

MAIN ISSUES

APPEAL – INTERFERENCE WITH DISCRETION OF TRIAL COURT: Whether where an appellate court is satisfied that the principle of law has been met it will hesitate to interfere with the discretion of the trial court

“In the case of DUWIN PHARMACEUTICAL and CHEMICAL CO. LTD (SUPRA), the apex court at PAGE 92, His Lordship Mukhtar, JSC (as he then was now CJN)) held thus:- ”The issuance of orders of interlocutory matters being one purely at the discretion of a court is a matter that should be exercised judicially and judiciously, and once an appellate court is satisfied that this principle of law has been met, it will hesitate to interfere with the discretion of the trial court.” See, also UNIVERSITY OF LAGOS & ORS VS. OLANIYAN & ORS (1995) 1 S. C. 295, I have no doubt in my mind that the lower court rightly exercised its judicial discretion and I have no reason to interfere with the order refusing the grant of the injunctions sought by both parties and the dismissal of same.” Per UWA, J.C.A. (P. 16-17, paras. E-A)

APPEAL – INTERFERENCE WITH JUDICIAL DISCRETION: Attitude of the appellate court where the exercise of the lower court’s discretion is challenged

“In a decision of this court and division, ADEBAYO VS. T.S.G. (NIG.) LTD. (2011) 4 NWLR P. 493 at PAGE 506 regarding the attitude of the appellate court where the exercise of the lower court’s discretion is challenged, my learned brother Fasanmi, JCA held that: “It is settled in the jurisprudence of our courts that the award of an injunctive order is discretionary, The exercise of judicial discretion shall not be interfered with by an appellate court unless it is shown that the lower court exercised its discretion wrongly and arbitrarily. It is immaterial that the appellate court would have exercised that discretion differently. See the case of BANNA VS. TELEPOWER (NIG.) LTD. (2006) 7 S.C. PART 1 at page 1, (2006) 15 NWLR (1001) 198; DOKUBO – ASARI VS. FRN (2007) ALL FWLR (PT.375) at 558, (2007) 12 NWLR (Pt.1048) 320 and SALAMI VS. YAHYAH (2010) 7 WRN PAGE 84 at 108 LINES 20 – 25, (2009) 17 NWLR (Pt.1171) 581. (Underlined mine for emphasis) Further, at Page 508 it was held that: “An appellate court does not as a matter of practice readily intervenes in matters concerning the exercise of discretion by a trial court merely because it would have otherwise exercised it. See ATIKU VS. STATE (2002) 4 NWLR (PT.757) PAGE 265 at 278 – 279.” Per UWA, J.C.A. (Pp. 15-16, paras. E-D)

EQUITABLE REMEDY – INTERLOCUTORY INJUNCTION: Whether or not an interlocutory injunction may be granted as a matter of course

“An interlocutory injunction is not granted as a matter of course, the tendency is to avoid trying the same question twice and to grant injunctions only in clear cases. I had earlier reviewed the lower court’s holding at page 62 of the records to the effect that it is a discretionary power endowed on the court to grant an interlocutory injunction pending the final determination of the appeal and in this case no legal right has accrued to either of the parties to be entitled to an injunction.” Per UWA, J.C.A. (P. 14, paras. C-E)

PRACTICE AND PROCEDURE – INTERLOCUTORY PROCEEDINGS: Whether the court need not go into the merit of the matter in controversy at the stage of interlocutory proceedings

“The law is trite that at the stage of interlocutory application (or proceedings) the court should not go into the merit of the matter in controversy between the parties , or else it would be tempted to delve into and determine the substantive appeal/case at that stage, thus leaving nothing for the just and proper determination of the suit, in this case appeal, after the hearing see, DUWIN PHARMACEUTICAL & CHEMICAL CO. LTD. VS. BENEKS PHARMACEUTICAL & COSMETIC LTD & 2 ORS (2008) 1 – 2 S.C. 68. At this stage if the court considers and evaluates all the submissions in respect of J/21/63, SC/16/74 and HCS/16/97 the court would have been forced to examine the pending appeal, in appeal number CA/I/80/09, the substantive appeal. See, also REGISTERED TRUSTEES OF P.C.N. VS. REGISTERED TRUSTEES OF ANSAR-UD-DEEN SOCIETY OF NIGERIA (2000) 5 NWLE (PT.657) 368 and JOHN HOLT NIGERIA LTD and ORS VS. HOLTS AFRICAN WORKERS UNION OF NIGERIA & CAMEROONS (1963) 1 ANRL 379. and OJUKWU VS. GOVT. OF LAGOS STATE (1986) (SUPRA).” Per UWA, J.C.A. (Pp. 13-14, paras. D-B)

MAIN JUDGMENT

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment):

This is an interlocutory appeal against the Ruling of Saula, J of the High court Ogun State, sitting at Sagamu delivered on the 17th day of February, 2006 in Suit No. HCS/16/97.

The appellants (as defendants) and the Respondents (as plaintiffs) each filed an application for interlocutory injunction at the lower court which were taken together, in his Ruling the learned judge dismissed the applications of both parties. Dissatisfied with the Ruling of the lower court, the respondents appealed against same vide the Notice of Appeal dated and filed with the leave of court on 5th April, 2008, pages 65-68 of the printed records of appeal.

The background facts are that the applications resulted from the judgment delivered in the substantive case delivered on 10th May, 2005 by Olopade, J in which the appellants’ (defendants’) plea of rem judicatam succeeded while the respondents’ (plaintiffs) claims were dismissed. The then lower court (Olopade, J) did not proceed to determine the claims of the plaintiffs and consequently dismissed them. The Respondents were dissatisfied with the judgment and thereafter appealed against the judgment vide Appeal No.CA/I/80/09, which is still pending.

The appellants alleged that after the dismissal of the Respondents’ case, the Respondents herein went into the portion of land in possession of the appellants and committed several acts of atrocities by destroying all the economic trees, which led to the application for injunction, refusal of same and this appeal.
The appellants from their three (3) grounds of appeal formulated four issues for determination by this court. They are:-

“Settlement, physical occupation, unambiguous and exclusive possession found in favour of the Appellants are legal rights capable of protection in law by means of an injunction.

The Ruling of the lower court is erroneous preposterous, pervasive and is against the weight of evidence.

The discretion to grant an injunction is equitable which should be applied judiciously and judicially, the court must consider the conduct of the parties both before and at the time of application and the decision whether to grant (or not) the order sought must be related to actual and ascertained facts of the current situation.

The court system cannot be maintained without the willingness of the parties to abide by finding and orders of a competent court until reversed on appeal.

The Respondents’ conduct is contemptuous of the judgment of HCS/16/97.”

The respondents on their part formulated a sole issue for determination; that is:

“whether or not the lower court exercised its discretionary power by dismissing the prayers for injunction by both the appellants and the respondents’ with care and caution, that is, judicially and judiciously.”

When this appeal was argued on 15/10/12 the learned counsel to the respondents informed the court of the demise of the former 1st respondent (Chief Adebayo Sonuga) and applied that his name be struck out. The application was not opposed and was granted; the former first respondent’s name was thereafter withdrawn and struck out.

In arguing the appeal, the learned counsel to the appellants F. Lawal Esq. adopted and relied on his brief of argument dated and filed on 27/7/09 and his reply brief dated 4th December, 2009 filed the same day but deemed as properly filed and served on 18th March, 2010, argued his four issues together. The learned counsel gave the background leading to the substantive suit as being title to the land called Agbodu farm land by both parties. The judgment of the trial court was highlighted as well as the reason for the dismissal of the respondents’ cased based on issue of estoppel per rem judicatam. The judgment was in favour of the appellants and was delivered on 10th May, 2005, pages 8-40 of the printed records. It was the contention of the learned counsel that a few days thereafter the respondents entered the land which the judgment covered and committed atrocities such as felling trees, pages 44 to 55 of the records.
It was argued that the appellants in order to protect their possession by way of summons on Notice filed before the lower court on 24th August, 2005 an application for injunction.

It was submitted that the appellants had a legal right which had been upheld and were vindicated against the respondents by virtue of three judgments, they are: J/21/63, SC/16/74 and HCS/16/97. Further, that a finding as to the Appellants’ possession of the land in dispute in the circumstances which includes a finding as to the settlement, reliance was placed on the case of ADIATU LADUNNI v. OLUDAJIN ADEKUNLE KUKOYI & ORS (1972) 3 SC P.31. It was also argued that the essence of the grant of injunction is to support a legal right and the that the pre-condition for an applicant is to show that he has a legal right that is threatened, see KOTOYE VS. CBN (1989) 1 NWLR (Pt.89) 419 and OJUKWU vs. GOVERNOR OF LAGOS STATE (1986) 3 NWLR 246 (Pt.26) 39.
It was the contention of the learned counsel that the Ruling of 17th February, 2006 by the lower court misconceived, the legal right of the Appellants which consists of possession of the land in dispute based on settlement, which was recognized by the high court in J/21/63, SC.16/74 and HCS/16/97, the case of AKAPO vs. HAKEEM HABEEB (1992) 6 NWLR (pt.247) 266, 270-272 was said to be distinguishable from the present case.

It was submitted that during the pendency of the Respondents’ appeal against the judgment in HCS/16/97, the Respondents went into the appellants, land and cut down economic trees. The alleged conduct was said to be contemptuous of the judgment appealed against, based on which the lower court ought not to have refused an injunction in favour of the Appellants, such act was said to have been condemned in OJUKWU v. GOVERNOR OF LAGOS STATE & ORS. (SUPRA).
The Ruling the subject matter of this appeal was said to be against the weight of evidence, erroneous, and perverse in that the lower court misdirected itself by holding that settlement, physical occupation, and exclusive possession found in favour of the Appellants are not legal rights capable of protection by means of an injunction.

The lower court was said to have exceeded its jurisdiction by reviewing the following cases, J/21/63, SC/16/74 and HCS/16/97 and acted as an appellate court by so doing. We were urged to allow the appeal, set aside the Ruling of the lower court dated 17th February, 2006 and dismiss the Respondents’ case before the lower court. Also, to grant an injunction against the Respondents from committing acts of trespass on Appellants’ parcel of land known as Agbodu farm land, details of the location of the land was given.

In response, the learned counsel to the respondents, O. O. Onayemi (Mrs) adopted and relied on the respondents’ brief dated 27th October, 2009, filed on 29th October, 2009. It was submitted by the learned counsel that the decision of Olopade, J (page 41 of the printed records) did not favour the appellants. Further, that the power to grant an interlocutory injunction is discretionary, reliance was placed on Order 46 Rules 1-3 of the High Court of Ogun State, 1987. The learned counsel was of the view that the status quo ought to be maintained pending the appeal against the decision of Olopade, J in Appeal No.CA/I/80/09.

It was argued that the Ruling that gave rise to this appeal was based on facts in Olopade, J’s judgment, and that the discretionary power of the lower court was properly exercised, see, FOLORUNSO VS. FOLORUNSO (1996) 5 NWLR (Pt.450) 512, and that where a discretionary power of the court is properly exercised as in this case, that it ought not to be interfered with by the appellate court, see, SARAKI VS. KOTOYE (1990) 4 NWLR 9 (pt.143) 144.

We were urged to uphold the Ruling of Saula, J. dismissing the appellants’ application for interlocutory injunction, as the lower court exercised its discretion judicially and judiciously.

In reply on points of law, the learned counsel to the appellants in his reply brief submitted that the respondents ought to have filed additional records if they found out that the respondents’ application and supporting affidavit were not included in the records of appeal compiled by the appellant, reference was made to paragraph 1.3 of the respondents’ brief where this was alleged, Order 8 Rule 6 of the Court of Appeal Rules, 2007 was referred to and relied upon, The appellants were said to have waived their right to complain about non inclusion of their application in the compiled records. The rest of the submissions in the reply brief were addressed in the main brief, therefore I need not recap same.
I would utilize the sole issue formulated by the respondent as apt for the determination of this appeal. The appellants herein were the defendants in Suit No. HCS/16/97 before Olopade, J. of the High Court Ogun State, sitting at Sagamu in which the then plaintiffs’ (respondents), claims were dismissed on the successful plea of estoppel per rem judicatam on 10th May, 2005. The respondents who were dissatisfied with the judgment lodged an appeal before this court which is still subsisting, that is, appeal No.CA/I/80/09, the parties are agreed on this. The present appeal is not the said appeal. It was after the above judgment that the appellants as well as the respondents herein each filed similar applications before the lower court for injunctions.

The applications were taken together before, Saula, J. The applicants, application of 24th August, 2005 was by way of summons on Notice brought under Order 33 Rules (1) (2) of the Ogun State High Court (Civil procedure) Rules, 1987 and under the inherent jurisdiction of the honourable court. The following relief was sought:

“An order granting an injunction against the judgment debtors/Respondent servants, agents, Privies attorneys and/or representatives all and sundry from committing acts of trespass on the parcel of land subject matter of this action upon which judgment was delivered on 10th May, 2005;

AND for such further or other orders as this Honourable court may deem fit to make in the circumstances.”

The summons on Notice, the affidavit in support of the application and the affidavit of urgency are at pages 4 -7 of the printed records of appeal. At page 62 of the records, the lower court ruled thus:

“Thus there is no legal right in either of the parties upon which this court can exercise its discretion to grant the order of injunction being sought.”

This appeal is against the refusal of the injunctions of the parties, argued together. From the appellants’ briefs that were relied upon in arguing the appeal, the Appellant seemed to have dwelt on the judgment of Olopade, J. which gave rise to appeal No.CA/I/80/09 which is still subsisting. The bulk of the appellants’ argument would be more relevant in the substantive appeal and not in this interlocutory appeal following the refusal of the injunctions sought. Paragraph 4.3 of the respondents’ brief shows that, that appeal has not been determined. The parties are aware that this appeal is not against the substantive judgment; the arguments would prejudice or work on the mind of the court in the main appeal, same is hereby discountenanced.

The law is trite that at the stage of interlocutory application (or proceedings) the court should not go into the merit of the matter in controversy between the parties , or else it would be tempted to delve into and determine the substantive appeal/case at that stage, thus leaving nothing for the just and proper determination of the suit, in this case appeal, after the hearing see, DUWIN PHARMACEUTICAL & CHEMICAL CO. LTD. VS. BENEKS PHARMACEUTICAL & COSMETIC LTD & 2 ORS (2008) 1 – 2 S.C. 68. At this stage if the court considers and evaluates all the submissions in respect of J/21/63, SC/16/74 and HCS/16/97 the court would have been forced to examine the pending appeal, in appeal number CA/I/80/09, the substantive appeal. See, also REGISTERED TRUSTEES OF P.C.N. VS. REGISTERED TRUSTEES OF ANSAR-UD-DEEN SOCIETY OF NIGERIA (2000) 5 NWLE (PT.657) 368 and JOHN HOLT NIGERIA LTD and ORS VS. HOLTS AFRICAN WORKERS UNION OF NIGERIA & CAMEROONS (1963) 1 ANRL 379. and OJUKWU VS. GOVT. OF LAGOS STATE (1986) (SUPRA).

An interlocutory injunction is not granted as a matter of course, the tendency is to avoid trying the same question twice and to grant injunctions only in clear cases. I had earlier reviewed the lower court’s holding at page 62 of the records to the effect that it is a discretionary power endowed on the court to grant an interlocutory injunction pending the final determination of the appeal and in this case no legal right has accrued to either of the parties to be entitled to an injunction.

The question is: can this court interfere with the lower court’s decision of refusal, merely based on the ground that we would have exercised the discretion differently? The appellants have argued that the discretion was not exercised judicially and judiciously but, have the appellants in any way established this contention, more so where both parties applied for the injunctive orders? The appellants have not.

There is nothing to show that the discretion was wrongly or arbitrarily exercised.
The appellants were the defendants in the lower court in the substantive matter before Olopade, J. where the then plaintiffs (respondents) took out an action for a declaration of title and also sought an injunctive relief, pages 8 – 9 of the printed records. Upon the defendants (now appellants) plea of estoppel, per rem judicata, the lower trial court dismissed the claims. The defendants were not awarded title to the land in dispute. Therefore no right was conferred on the defendants for the mere fact that the plaintiffs lost. In effect therefore, the learned lower court Saula, J, was right when he held that there was no legal right in either of the parties upon which the court could exercise its discretion to grant the order of injunction sought in favour of the defendants, now appellants who had no legal right to protect.

The submissions on the alleged findings as to the Appellant’s possession of the land in dispute and as to the settlement are issues to be determined in the substantive appeal, see paragraph 4.2.2 of the appellants’ brief. In a decision of this court and division, ADEBAYO VS. T.S.G. (NIG.) LTD. (2011) 4 NWLR P. 493 at PAGE 506 regarding the attitude of the appellate court where the exercise of the lower court’s discretion is challenged, my learned brother Fasanmi, JCA held that:

“It is settled in the jurisprudence of our courts that the award of an injunctive order is discretionary, The exercise of judicial discretion shall not be interfered with by an appellate court unless it is shown that the lower court exercised its discretion wrongly and arbitrarily. It is immaterial that the appellate court would have exercised that discretion differently. See the case of BANNA VS. TELEPOWER (NIG.) LTD. (2006) 7 S.C. PART 1 at page 1, (2006) 15 NWLR (1001) 198; DOKUBO – ASARI VS. FRN (2007) ALL FWLR (PT.375) at 558, (2007) 12 NWLR (Pt.1048) 320 and SALAMI VS. YAHYAH (2010) 7 WRN PAGE 84 at 108 LINES 20 – 25, (2009) 17 NWLR (Pt.1171) 581. (Underlined mine for emphasis)

Further, at Page 508 it was held that:

“An appellate court does not as a matter of practice readily intervenes in matters concerning the exercise of discretion by a trial court merely because it would have otherwise exercised it. See ATIKU VS. STATE (2002) 4 NWLR (PT.757) PAGE 265 at 278 – 279.”

The appellants have not in way shown that the lower court’s discretion was wrongly or arbitrarily exercised, or not judicially and judiciously exercised as alleged. In the case of DUWIN PHARMACEUTICAL and CHEMICAL CO. LTD (SUPRA), the apex court at PAGE 92, His Lordship Mukhtar, JSC (as he then was now CJN)) held thus:-

”The issuance of orders of interlocutory matters being one purely at the discretion of a court is a matter that should be exercised judicially and judiciously, and once an appellate court is satisfied that this principle of law has been met, it will hesitate to interfere with the discretion of the trial court.”

See, also UNIVERSITY OF LAGOS & ORS VS. OLANIYAN & ORS (1995) 1 S. C. 295, I have no doubt in my mind that the lower court rightly exercised its judicial discretion and I have no reason to interfere with the order refusing the grant of the injunctions sought by both parties and the dismissal of same.

It is noteworthy that after the decision of Olopade, J. in the substantive matter, the appellants have pursued the interlocutory application and appeal after the Ruling for more than seven (7) years after the initial judgment of the lower court against which an appeal was also lodged. It would have been better and/or advisable if the appellants had dissipated all the energy, time and resources to pursue the substantive appeal for a final determination of the real matters in controversy between the parties in the lower court than the pursuit of an interlocutory appeal. I am of the view that concentration on the substantive appeal with the interlocutory incorporated therein (even if it’s to prove a point) would have been more beneficial to the parties than the piece meal, appeals adopted by the appellants.

In the final analysis I find no merit in the appeal and I dismiss same. The Ruling of Saula, J. of 17th February, 2006 in suit No.HCS/16/97 is hereby affirmed. I order costs of N30,000.00 (Thirty Thousand Naira) in favour of the respondent.

MONICA B. DONGBAN-MENSEM, J.C.A.:

My learned brother Uwa JCA appropriately re-iterated the hallowed principles of restraint to be exercised by this court in the review of a discretionary exercise. In the case of Atiku v. State (2002) 3 WRN 110, the Supreme Court held that:

“it is well settled that in matters of discretion no one case can be an authority for another and one court cannot be bound by a previous decision to exercise its discretion in a particular way because it wound in effect be putting an end to the discretion. The issue of discretion is all the superior courts of records enjoy and nothing definitely must be done to whittle down if there must not be end to discretion.”
Similarly, the Court held in the case of John C. Okafor v. Bendel Newspapers Corporation (1991) 7 NWLR (Pt.206) page 651 @ 656.

Per Nnaemeka-Agu, JSC that: “in an appeal against the exercise of discretion by the lower court, the appellate court cannot substitute its discretion for that of the court below. Any interference must be based on the satisfaction by the appellate court that the discretion was exercised on wrong principles. Such wrong principles include exercising the discretion by reference to erroneous considerations or without adverting to relevant considerations”

We are bound by these pronouncements and properly guided. No such error has been made out against the learned trial judge. This appeal is devoid of merit and stands dismissed.

JOSEPH SHAGBAOR IKYEGH, J.C.A.:

I agree with the succinct judgment pronounced by my learned brother, Uwa, J.C.A,, which I had the honour of reading in advance and wish to add that in matters of discretion properly exercised by a court of first instance, as in this case, an appellate court hardly intervenes by substituting its view in place of the judicious opinion expressed by the court of first instance on the discretionary matter – see The Resident, Ibadan province and Another v. Memudu Lagunju (1954) 14 W.A.C.A. 549 at 552 thus –

“The exercise of a discretion may, of course, be reviewed by this Court on appeal, but it is the practice not to interfere if the discretion has been judicially (and judiciously) exercised, that is to say bona fide and not arbitrarily or illegally, and without reference to extraneous considerations, even although we might feel in any case that the course ultimately adopted by the court below is not the one we would have taken”.

See also Enekebe v. Enekebe (1964) 1 All NLR 102, Short v. A.G. of Sierra-Leone Privy Council Judgments by Olisa Chukura at page 931.
It is for the reason given above and for the more elaborate reasons stated in the lead judgment of my learned brother, Uwa, J.C.A., that I too see no merit in the appeal and hereby dismiss it with N30,000 cost in favour of the respondent.