3PLR – AKINOLA  V. JAMES

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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CLANDIUS AKINOLA

V.

CHIEF KOLE JAMES

COURT OF APPEAL, LAGOS DIVISION

CA/L/69189

THURSDAY 11^TH JULY, 1991

3PLR/1991/31  (CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

FRANCIS OLISA AWOGU. J.C A

UMARU ATU KALGO, J.C.A.

NIKI TOBI, J.C.A.

 

REPRESENTATION

1. O. Akinduro ‑ for the Appellant
2. B. Sadiku ‑ for the Respondents

 

EDITORS

[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]

 

MAIN ISSUES

COURT ‑ Interlocutory injunction ‑ Application for ‑ Duty on court in respect thereof

INJUNCTION ‑ Interlocutory injunction ‑ Application for ‑ Duty to make out a case injunction order ‑ How done ‑ On whom it lies.

INJUNCTION ‑ Interlocutory injunction ‑ Grant of ‑ Guiding principles.

PRACTICE AND PROCEDURE ‑ Interlocutory injunction ‑ Grant of ‑ Guiding principles.

PRACTICE AND PROCEDURE ‑ interlocutory injunction ‑ Grant of‑ Whether as a matter of course ‑ Duty on applicant.

 

MAIN JUDGEMENT

KALGO, J.C.A. (Delivering the Leading Judgment): Although the facts giving rise to this appeal are a bit complicated, the area of dispute is indeed very narrow and simple. On the 7th of July, 1977, the first respondent (Chief Kole, James), in suit No. ID/433/69, in the High Court of Lagos (Gomes :1.) obtained judgment in his favour in the following terms:-

(a)     Declaration of title of the piece or parcel of land situate, lying and being at Kirikiri Road, Apapa, Lagos State;

 

(a)     N400.00 damages for trespass committed on the said land by the defendants and or their agents;

 

(a)     Injunction to restrain the defendants from further acts of trespass of the said land.

The appellant was not a party to this case and the only time the respondent ever sued him was in another suit No. LD/362/77 which the respondent abandoned and is still pending today.

The respondent, due to ill‑health, according to him, did not execute the judgment given or made in his favour in 1977 in Suit No. ID/433/69, until August. 1988, when he took up a writ of possession in respect of “premises or shops at No. 2,4,6,8.10, 12 and 14 Kirikiri Road, Olodi ‑ Apapa, Lagos.” In the course of the execution of the said warrant of possession, the Deputy Sheriff, the 2nd respondent, took over the land and workshop of the appellant situate and lying at No. 14 Kirikiri Road, Olodi ‑ Apapa, Lagos. Thereafter, on 6th September, 1988, the appellant and one F. Ogundaini filed an action in Lagos High Court against the present respondents, in suit No. LD/1759/88 in which they claimed:

“(a)    Declaration that the Warrant for possession issued and executed on 30th August, 1988 in furtherance of Suit No. LD/433/69 i.e. KOLE JAMES vs. S. 0. BRIGGS & 2 ORS and in which the Plaintiffs were never parties, on their Landed Property lying situate at 14, Kirikiri Road, Olodi, .Apapa which is shown with its size, abuttals and dimension on Plan No. AP 1329 which is covered by Deed of Lease dated 22/9/76 registered as No. 72 at page 72 in Volume 1583 in the Lands Registry, Lagos, executed in their favour by the Oluwa Chieftaincy Family, is void, illegal, wrongful and unlawful.

(b)     An order setting aside the said Warrant for Possession and compelling the 2nd Defendant to put the Plaintiffs back in possession of the said Land.

and/or in the alternative

(c)     Act of Trespass committed by the Defendants with their servants and agents on the Plaintiffs said Landed Property on 30th August, 1988, and on which the Plaintiffs have been in lawful possession since 1973.

(d)     A perpetual injunction against the Defendants their servants and agents from committing further Act of Trespass on the Plaintiff’s said Land.

(e)     The sum of N500,300.00 (Five Hundred Thousand and Three Hundred Naira) representing special and General damages jointly and severally against the Defendants as a result of the said act of Trespass and in executing the said warrant for possession, and also loss of earning from 7th September, 1988 until date of Judgment at the rate of N2,000.00 a day.”

On the 9th of September, 1988, the appellant filed an application by motion on notice praying the trial court for :‑

(a)     Interim injunction restraining the 1st Defendant his Servants and Agents from alienating, transferring, altering, in any form whatsoever, the present state of the Landed Property situate at No. 14, Kirikiri Road, Olodi‑Apapa, the subject matter of this action.

(b)     Allowing the Plaintiffs to continue to carry on their business of Automobile Mechanical Engineers on the said Landed Property, until the final determination of this substantive action filed herein, and for such further or other Orders as this Honourable Court may deem fit to make in the circumstance.”

The application was then heard, and on the 24th of February 1989, the learned trial Judge Akinboboye J. delivered a considered ruling in which she refused the prayers of the appellant and dismissed the application. Dissatisfied with this, the appellant after obtaining the leave of this Court on the 11th of May, 1989, now appealed against the ruling on 5 grounds which, without particulars read as follows:

“I.      The learned trial Judge erred in law in not examining in details, on the documentary evidence attached to the Affidavits before her, whether or not the Plaintiffs/Applicants/Appellants are bound by the judgment delivered in Suit No. LD/433/69 ‑ KOLE JAMES v. S. 0. BRIGGS, M.S. IBIEFO and SURAKATU ABILAYO, on which execution was levied against the Plaintiffs/Applicants! Appellants and the Landed Property situate at No. 14, Kirikiri Road, Apapa, the subject matter herein.

69. That the Learned Trial Judge erred in Law in holding that the Landed Property situate at No. 14, Kirikiri Road , Apapa is included in the Landed Property litigated upon in Suit No. LD/433/69.

III.     That the Learned Trial Judge erred in law in not taking in account, on the basis of the documentary evidence attached to the Motion papers before her, that the only action filed by the 1^St Defendant/Respondent in respect of the Landed Property in dispute i.e. Situate at No. 14, Kirikiri Road, Apapa, was in Suit No. LD/362/77 i.e. KOLE JAMES vs. C. AKINOLA and F. OGUNDAINI ‑ (Plaintiffs/Applicants/Appellants herein) and that, that action is still pending in Court till today.

1. The Learned Trial Judge erred in law in failing to observe that on the totality of the documentary evidence attached to the Motion Papers before her, the execution levied against the property in dispute situate at No. 14, Kirikiri Road, Apapa in which the Plaintiff/Applicants/Appellants were in peaceful possession and which led to dispossessing the Plaintiff /Applicants/Appellants therefrom, was glaringly and manifestedly wrong and thereby came to a wrong conclusion in her Ruling.
2. The Decision/Ruling of the Learned Trial Judge was unreasonable having regard to the weight of documentary evidence attached to the Motion Papers before her..”

This Court then granted the appellant ‘sprayer for departure from the Court Rules in respect of filing of the record of appeal, and at the same time ordered the filing of briefs of argument. There after the parties’ counsel filed their respective briefs, which were exchanged between them.

The appellant in his brief, formulated the issues for determination in the appeal as follows:

“I. Whether the trial Judge was right in holding that the execution levied in Suit No. LD/433/69 ‑ KOLE JAMES vs. BRIGGS, M.S. 1BIEFO and SURAKATU ABILEKO against the Plaintiffs/Appellants in respect of No. 14 Kirikiri Road, Olodi, Apapa was valid when the

Plaintiffs/Appellants were never parties to the said action, and when the subject‑matter, 14, Kirikiri Road, Olodi, Apapa, was never included in the Landed Property litigated upon in the said Suit No. LD/433/69.

2. Whether the trial Judge was right in not taking into account, based on the documentary evidence attached to the Motion Papers before her, that the only action b y the first Defendant/Respondent against the Plaintiffs/Appellants was in Suit No. LD/362/77, i.e. KOLE JAMES v. C.. AKINOLA & F. OGUNDAINI, and that, that action is still pending in Court till today.
3. Whether the trial Judge was right in not restoring the Plaintiffs/Appellants to the subject matter of the action ‑1 4,Kirikiri Road, Olodi Apapa, pending the determination of the substantive action, when on the documentary evidence before her, the Plaintiffs/Appellants were in lawful occupation of the premises before their unlawful eviction therefrom.”

 

For the 1st respondent, the issues for determination are listed thus:

“1.     Is the granting of an Interlocutory Injunction for the preservation of the property, the subject of the dispute or the maintenance of the Status Quo, automatic on request or conditional upon some factors?

If not automatic and the grant is conditional on some factors, has the Appellant in this case shown he had fulfilled all the conditions necessary for the grant of the relief he sought? In other words:

(a)     Has he shown that there is a reasonable prospect of obtaining a permanent judgment in his favour?

(b)     Has he made a Case on its merit?

(c)     On the balance of convenience has he proved he would suffer more than the other party if the application is not granted?

(d)     Has he shown any possibility of irreparable injury or miscarriage of justice if the application is not granted.’

2. Is the Court competent to order that a party reverse the position of the property to the position it was before an application for maintenance of Status Quo was filed’?
3. Is the property designated as No. 14 Kirikiri Road in Apapa that is the property in dispute part of the property for which judgment was given in 1977 in favour of the Respondent in the suit LD/433/69 titled: Kole James vs. Briggs and others.
4. De facto, what is the Status Quo which is called to be preserved as at the time the matter was brought before the Trial Court.’?
5. Is the Suit Kolejarnes v.C. Akinola & F. Ogundaini Suit No.LD/362/77 relevant to the present trial or the application for the grant of this Interlocutory action?
6. Who is in a lawful possession of No. 14 Kirikiri Road, Olodi Apapa as at the time of filing the Suit LD/I 759/88 before the Trial Court, after executing a warrant of possession. What is the factor in focus, the person who possess or the property that is to be possessed.”

No brief was filed in respect of the 2nd respondent and nobody appeared for him in this Court.

The appellant’s motion set out earlier in this judgment and which was filed in the trial Court on the 9^th of September, 1988, was supported by a 19 paragraph affidavit. The 1st respondent filed a counter affidavit and a further counter affidavit and the 2nd respondent also filed a counter‑affidavit in reply. In the affidavit in support, the appellant deposed in the following paragraphs thus:

“3      That ever since 30th August, 1988, self and the 2nd Plaintiff have been displaced from 14 Kirikiri Road, Olodi‑Apapa, in the circumstances enumerated, set out and disclosed in Statement of Claim filed: self and the 2nd Plaintiff have been suffering day in and day out and by way of loss of earnings in the execution of our business. So far, a subsequent Petition dated 31st August, 1988 forwarded to the Deputy Sheriff copied to the Chief Judge through the Chief Registrar have served no useful purpose; photostat copy of same attached herewith Marked Exhibit Al a.

7. That the 1st Defendant has been taking concrete steps to alter the state of the Workshop situate as aforesaid at 14, Kirikiri Road, above, the subject matter of this action and making move to have same alienated.
8. That as disclosed in the Statement of Claim filed, self and 2^nd Plaintiff were never parties in Suit No. LD/433/69 on which the warrant for Possession was executed on our said Property situate at 14, Kirikiri Road, Olodi‑Apapa, and neither was that property litigated upon in that action. Attached herewith are photostat copies of certified true copies of Writ of Summons filed in that case and the judgment obtained, marked Exhibits A2 and A2b,
9. That as also disclosed in the Statement of Claim filed, it was in Suit No. LD/362/77 that the 1st Defendant (Plaintiff in that case) raised a Claim against self and 2nd Plaintiff in respect of the Landed Property situate at 14, Kirikiri Road, Olodi‑Apapa, the subject matter herein. Attached herewith photostat copies of the said Writ of Summons served on me in that case marked Exhibit A2c.

 

1. That the 1st Defendant (Plaintiff in that case) never obtained judgment against self and 2nd Plaintiff in that case i.e. (LD/362/77, rather a Motion filed for Interim Injunction in that case was dismissed with costs. Attached herewith is photostat copy of certified true copy of that Ruling marked Exhibit A3.”

 

Also the appellants filed a statement of claim containing 23 paragraphs on the 9^th of September 1988, in which they averred in these paragraphs as follows:-

“1.     That Plaintiffs are automobile Mechanical Engineers fully engaged in the repairs of all types of Motor Vehicles including Peugeot, Mercedes Benz etc. and they carry on their business on Landed Property (hereinafter referred to, as “The Landed Property situate lying and being at 14, Kirikiri Road, Olodi, Apapa, the subject matter herein.

4. The Plaintiffs aver that the said Landed Property is covered by Deed of Lease dated 22^nd day of September. 1976 executed in their favour by the Oluwa Chieftaincy Family headed by Chief Sulaiman Babatunde Ajasa Oluwa, Isikalu II, who is still currently the Chief Oluwa of Lagos, and which said Deed of Lease is registered as No. 72, at page 72 in Volume 1583 of the Lands Registry, Lagos. The said Landed Property is shown with its size, abuttals and dimensions on Plan No. AP 1329 annexed to the said Deed of Lease. The Plaintiffs shall rely on the said document at the trial.
5. The Plaintiffs aver that they had been validly and legally put into possession of the said Landed Property by their Landlords since 1973, but at that time no proper Deed of Lease was ready for execution and at that time ,no structure of any kind was on the said Landed Property.
6. The Plaintiffs aver that they, as a result, have ever been in physical possession of the Landed Property, carrying on their lawful business, pleaded above, thereon, until the 30th day of August, 1988, when their said act of possession was awfully and unlawfully disturbed by the Defendants, their Servants and Agents.
7. The Plaintiffs aver that about two years ago, the 1st Defendant made a fruitless attempt to execute Warrant of Possession against the Landed Property in dispute in furtherance of judgment alleged obtained in LD/433/69.
8. The Plaintiffs aver that as No. 14 Kirikiri Road, Apapa, the subject matter herein, was never mentioned in that judgment, coupled with the fact that the Plaintiffs were never parties to that action, that move to execute the warrant was abandoned on that day and on the intervention of the Plaintiffs’ Solicitor.
9. The Plaintiffs aver that it was on the 2nd occasion i.e. 30th August, 1988 that the warrant for Possession brought as aforesaid bore number 14, Kirikiri Road, Apapa, copy of Warrant was never given to the Plaintiff on demand to that effect.”

The principles upon which the Courts have acted in granting interlocutory injunctions are now well settled but it is impossible to lay down any hard and fast rule by which the Courts ought in all cases, to follow in exercising their discretion. But it must be clearly stated that interlocutory injunctions are not granted as a matter of course. In the case of Challender v. Royle (1887)36 CH.D 425 at p.436, Cotton L.J put the matter thus:

“It is very true that in all cases of interlocutory injunction the Court does consider and ought to consider the balance of convenience and inconvenience in granting or refusing the injunction. But there is another very material question to be considered, has the plaintiff made out a prima facie case? That is to say if the evidence remains as it is, is it probable that at the hearing of the action; he will get a decree in his favour?”

In paragraphs 3,7, 11, 12 and 13 of the affidavit of appellant in support of his application at the trial Court, it is abundantly clear that ‑

(a)     as an automobile mechanical engineer, he maintained a workshop at 14, Kirikiri Road, Olodi‑Apapa from which workshop he was displaced on the 30th August, 1988 as a result of the execution and that he and his team of workers suffered loss of earnings thereby:

(b)     the respondent had been taking concrete steps to alter the slate of the workshop and making moves to alienate the land at 14 Kirikiri Road aforesaid;

(c)     the appellant was not a party to the case No. LD/433/69 whose judgment was executed against him by seizing the said property and workshop; and

(d)     In Suit No. LD/362/77, the respondent sued the appellant in respect of the property at 14 Kirikiri Road but no judgment was yet obtained by the respondent on the matter.

The respondent did not deny or contradict any of the facts mentioned above in his counter affidavits of 18th October, 1988 or that of 20^th October, 1988. In these two counter‑affidavits the respondent was only recalling the evidence he produced in the suit No. LD/433/69 on which judgment was given in his favour. In fact in the enrolled order of the lower court dated 18^th April, 1988 signed by Segun J. on an application on 6th January, 1988 by the respondents who were plaintiffs in suit No. LD/433/69, the following order was made:

(See record of appeal of appellant filed on 24/5/89)

“IT IS HEREBY ORDERED THAT

No. 2,4, 6, 8, 10, 12 Kirikiri Road,

No. IA, B, C, D and No. 2A, B, Yaya Crescent Olodi‑Apapa, Ajegunle are hereby nominated as the empty land adjacent to No. 16, Kirikiri Road, the large piece of land over which judgment was obtained in this suit. (italics supplied)

Reading from the enrolled order, “this suit” referred to suit No. LD/433/69. It was necessary for the respondents to apply to the trial court in order to obtain further clearance on the judgment of Gomes J. of 7^th July, 1977 because that Court only granted a “declaration of title of the piece of parcel of land situate, lying and being, at Kirikiri Road, Apapa , Lagos State.” But as can be seen from the enrolled order above, No. 14, Kirikiri Road, Olodi‑Apapa, the land claimed by the appellant in suit No. LD/1759/88, was not included or mentioned at all. This means that so far, the judgment in LD/433/69 and the enrolled order made on same signed by Segun J. the property No. 14 Kirikiri Road Olodi‑Apapa, did not feature. This also means that it was not litigated upon and the appellant was not sued in respect of it in suit No. LD/433/69.

But in the Warrant For Possession dated 2nd June, 1988, which was executed by the High Court bailiff on the 30th August, 1988,The property No. 14, Kirikiri Road, Olodi‑Apapa, Lagos, was mentioned clearly there. This was “Exhibit CA5” in the appellant’s affidavit of 24th May, 1989.

The judgment of Gomes J. given on 7th July, 1977, in suit No. LD/433/69, in the record of appeal, did not mention 14 Kirikiri Road, Olodi‑Apapa, Lagos. The enrolled order signed by Segun, J. of 18th April, 1988, also in the record of appeal, did not mention 14 Kirikiri Road, Olodi‑Apapa. But the Warrant of Possession dated 2^nd June, 1988 mentioned 14, Kirikiri Road, Olodi‑Apapa, Lagos. The most important and authentic document in my view, among these three, is of course the judgment in the case. The other two documents are subsidiary to the judgment.

The Warrant of Possession cannot supersede the judgment at all, and so the Warrant of Possession must be utterly wrong and the execution on 14, Kirikiri Road, Olodi‑Apapa, most irregular and illegal.

By this irregular and illegal execution, the appellant has lost the use of his workshop with which he earned his living together with others working with him there. The fact that the respondent deposed in his further counter‑affidavit filed on 25th November, 1988, in paragraph 6 that the appellant repaired a certain number of vehicles elsewhere from the 17^th to the 21^st of October, 1988 only went to confirm that he was improperly deprived of the use of his proper workshop. And it was wrong in my view in the circumstances, for the learned trial Judge to say in her ruling complained of, dated 24^th February, 1989, that because the appellant has quantified his losses and put value to his injury in his Writ of Summons the balance of convenience cannot be in his favour for the purpose of the grant of an injunction.

Also looking at the paragraphs of the Statement of claim filed by the appellant in suit No. LD/ 1759/88, set out earlier in this judgment, it appears to me that the appellant has a very substantial case against the respondent at the trial. In an application for interlocutory injunction such as this, “the court no doubt must be satisfied that the claim is not frivolous or vexatious, in other words, that there is a serious question to be tried” per Lord Diplock in American Cyanamid Ethicon Ltd.. (1975) A.C. 396. Also in the case of Saraki V Kotove (1990) 4 NWLR (Pt. 143) 144 at p. 174, Nnamani, J.S.C. has this to say:-

“In my view, when a Court considers an application for interlocutory injunction it is entitled to look at the whole case before it ‑ all the circumstances which may include affidavit evidence, judgments or pleadings if these have been filed. All these show what, is in dispute between the parties. See Ladunni v. Kukoyi (1972) 1 AN NLR (Pt. 1) 133; Manchester Corporation v. Connoly (1970) I CR. 420 at 427D.”

I have looked at the affidavit evidence of the appellant in the application at the trial, the judgment in the Suit LD/433/69 executed against him, and the pleadings he (appellant) filed in his pending action LD/1759/88 and I find that the claim is not frivolous and that there is a serious question to be tried. Therefore. with all these stated above, I am of the view that the appellant has satisfied the requirement fur grant of an interlocutory injunction in the trial Court. I do not think that the case of John Holt Ltd. v. Holt African Workers Union of Nigeria and Camerouns (1963) 1 All NLR 379: (1963)2 SCNLR 383 is applicable in this case. This is because, although execution was carried out in case of the appellant’s case the execution was illegal as being carried out on a property which was not adjudicated or mentioned in the judgment being executed and in which the alleged owner of the property was never a party to the case. I think the learned trial Jude was wrong to rely on that case in her ruling.

For the reasons stated above, 1 am of the firm view that the appellant is ordinarily entitled to the injunction he prayed for in the trial Court. But in view of the fact that the property in question, 14 Kirikiri Road, Olodi‑Apapa, has been fenced or walled with other properties adjacent to it since execution was levied, I agree with the learned trial Judge that in the circumstances of this case, status quo lies in keeping the land fenced until the determination of the action and the appellant cannot therefore be re‑instated on the property. But it is in my view essential to order the respondent not to interfere with the appellant’s workshop or make any attempt to alienate the property in question pending the determination of the action.

Accordingly, this appeal succeeds and it is allowed. The ruling of the learned trial Judge Akinboboye J. dated 24^th February. 1989, is hereby set aside but varied as follows:—

(1)     the property at No. 14 Kirikiri Road, Olodi‑Apapa now fenced with other adjacent properties, be left as it is and the respondent. his servants or agents should not alienate or in any way interfere with the property pending the determination of the action in the trial Court and

 

(2)     The appellant will not now be re‑instated on to the said property but that the respondent, his agents or servants shall not take any steps to alter or interfere in any way with the workshop of the appellant on the said premises.

The appellant shall be entitled to the cost of this appeal which I assess at N450.00 against the respondent.

AWOGU.J.C.A.: I agree and abide by the conditions stipulated for varying the order, I too award N450,00 as costs in favour of the Appellant.

TOBI J.C.A.:The cynosure of this action is No. 14 Kirikiri Road.Olodi‑Apapa. It is the res. It is the property in dispute. There are claims and contrary claims ‑ all in respect of No. 14. There is a dispute as to whether No. 14 forms part of the landed property litigated upon in Suit No. LD/433/69. We are at the moment not concerned with the substantive matter. That has to take its queue. We are at the moment concerned with an interlocutory matter and it is an application for interim injunction. I have my doubts whether the application is rightly designated as one for ‘interim’ injunction. I would rather think that the application is seeking for an interlocutory injunction. The legal profession seem to use the two words as if they are synonyms. They are not. Both in their grammatical meaning and in their legal meaning. I will not go into that here. I had done so in the past.

The issue before us is whether injunction should lie against the respondent in the circumstances of the case. 1 have read the analysis of the legal position by my learned brother, Kalgo, J.C.A. and I entirely agree with him. I therefore have nothing useful to add. I adopt the orders he has made as mine including the award of costs.

Appeal Allowed