AGBAJE V. IBRU SEA FOOD LIMITED

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ALHAJI CHIEF ABDUL MOJID AGBAJE

V.

IBRU SEA FOOD LIMITED

SUPREME COURT OF NIGERIA

MAY 5TH, 1972.

SUIT NO. SC 233/70.

3PLR/1972/11  (SC)

 

OTHER CITATIONS

(1972) 5 S.C.

 

 

BEFORE THEIR LORDSHIPS:     

ADEMOLA, C.J.N.

LENS, J.S.C.

SOWEMIMO, J.S.C.

 

EDITORS

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

 

MAIN ISSUES

Practice and Procedure – Interim Injunction – Substantial issue prima facie case for relief.

 

REPRESENTATION

Chief F.R.A Williams for the Appellant.

Mr. O.O. Somolu for the Respondents.

 

MAIN JUDGMENT

LEWIS J.S.C. (Delivering the Judgment of the Court):

The appellant in this matter has appealed against the dismissal by the Western State Court of Appeal of his appeal from the decision of the High Court of Ibadan which refused his application for an order for an Interlocutory Injunction.

The appellant was the plaintiff in an action in the High Court of Ibadan, and in his amended Writ of Summons, claimed “the sum of £7000 being damages from continuing nuisance to the plaintiff’s house situate at Chief Agbaje’s compound, Ayeye, Ibadan, NW1/333 and to the plaintiff and his household’s enjoyment of the said house caused by smell, heat, noise and vibrations from the refrigerating plant installed and operated by the defendant, his servants and agents in the shop on the ground floor of the plaintiffs said house and from the fish market established and carried on by the defendant, its servant and agents inside the said shop in front of the said shop since the 1st day of August, 1969, which nuisance the defendant has failed to abate despite repeated requests.”

 

The plaintiff also seeks an Injunction to restrain the defendant from continuing the said nuisance.

 

At the same time, the plaintiff fled a motion for an order for an Interim Injunction to restrain the defendant or his agents from continuing the said nuisance until the action was heard. The motion was heard in the High Court of Ibadan and It was refused.

 

The plaintiff/appellant appealed to the Western State Court of Appeal which dismissed his appeal. He has now appealed to this Court against the Order of the dismissal.

 

The appellant claimed to be the owner and occupier of the building where the refrigerating plant was set up. At first he stated that the defendants/respondent unlawfully took possession of the shop where the plant was erected, but later stated that his sister, Jadesola Agbaje, on an agreement between her and the respondents gave possession of the shop to the respondents, and whilst in possession, the respondent committed unlawful acts, which, according to paragraphs 4 to 8 of the affidavit filed by the appellant, are as follows:

 

“4.     That while in possession of the said shop the defendants and its agents by the 10th day of August, 1969, installed a huge refrigerator in it and permitted Its servants and/or customers to establish a fish market Inside the said shop and in front of the said storey house.

 

5. That the defendant by its servants and or agents has since been operating the said refrigerator daily continuously during the day and night.

 

6. That the said refrigerator continuously produces a lot of heat and also makes continuous noises and sound which vibrates and can be heard and felt all over the said house.

 

7. That the servants, agents and customers of the defendant while marketing the defendant’s goods in front of the said house make terrible noises and litter the premises with refuse to the annoyance and disturbance of myself, my family and other persons, occupying, with my permission, the adjoining shop in the said premises.

 

8. That the defendants servants, agent and customers start the fish market from about 7 a.m. every morning and lasts till 11 a.m. While the market is in progress pungent and unpleasant fish odour can be smelt all over the place.”

 

These briefly represent the reason for which the injunction was sought.

 

The Western State Court of Appeal, after setting out the facts in its judgment, approached the matter from the stand-point of the tenancy agreement. The Court said as follows:

 

‘The gist of applicant’s complaint Is about the operation of the business of the defendant company, a dealer in sea foods which Include fish, can be restrained In the absence of evidence that the tenancy agreement contained a covenant not to sell fish on the premises or to operate a huge refrigerating plant for the preservation of its wares.

The agreement, though mentioned, was not exhibited. We are not in a position to decide what rights Chief Agbaje has vis-à-vis Jadesola Agbaje, or what right Jadesola Agbaje passed to the respondent. For the applicant to establish a prima facie case that will ground the relief sought, it would be necessary to decide this Issue. Surely it must have been obvious to any person who let out the premises to the defendant, a fish dealer, to what use the premises would be Put…

 

In the first Court (High Court) however, the application, it seems, was dismissed for different reasons to the above. The learned Chief Justice of the High Court in refusing the application for interim injunction said as follows:

 

‘The plaintiff still has to show a strong prima facie case to enable him to an interlocutory Injunction, and I think he can only do this in his statement of claim and not by way of an affidavit. But even in the affidavit his paragraph 8 flatly contradicts his paragraph 5, and in view of this I do not see how the plaintiff hopes to convince the Court that his health and that of his household suffers as badly as to enable him to this interim order.”

 

With respect, we are of the view that the learned Chief Justice did not advert to the issue before him. Both the Chief Justice and the Court of Appeal, to our mind, have failed to advert themselves to the principles which form the basis on which the claim for relief may be made.

 

The Chief Justice of the High Court concerned himself with contradictions in two paragraphs in the affidavit namely, paragraphs 5 AND 8 (above). Indeed, we see no conflict between the two paragraphs in the affidavit, one was dealing with the refrigerating plant and the other was dealing with the fish market – one goes on day and night, and the other starts at 7 a.m. and lasts till 11 a.m. In fact, the learned Chief Justice merely dismissed the motion without going into the facts which were laid before him in the affidavit. All he referred to in his judgment was the supposed conflict between paragraph 5 AND 8 of the affidavit. Also we do not share the learned Chief Justice’s opinion that it is only by his statement of claim that the appellant can build up a case for an interim Injunction and not by his affidavit. Be that as it may, it is clear that the appellant’s case for an interim injunction is contained in his affidavit which set out facts upon which any Court would give consideration to his application. Strangely enough, the respondents admitted all those facts, since there are no denials of all the acts complained of by a counter-affidavit.

 

It is clear that the learned Chief Justice was in error in dismissing the application for interim injunction as he did. The principles upon which an interim injunction may be granted are clearly set out in 21 Halsbury Laws 3rd Ed. paragraphs 765 AND 766 at pp. 365 and 366 and there is hardly any need to set them out. It is enough for our present purpose to say that it is sufficient on an application for interim injunction for the applicant to satisfy the Court that there is a substantial issue to be tried at the hearing, that he has a strong prima facie case for relief, and it is not fair that he should continue to suffer hardship until that hearing. We refer to our recent decision in Egbe v. Onogun S.C.28411970 of February 18, 1972. So much for the judgment of the Court of first instance, namely, the High Court.

 

We now deal briefly with the judgment of the Court of Appeal of the Western State. We quoted above the relevant portion of the judgment. As we stated earlier on, that Court was concerned with the question of tenancy agreement, an Issue which was not argued before ft. We must confess that we do not share the difficulty of that Court in deciding the issues before it without a decision on the tendency agreement. The reasoning in the judgment of the Court of Appeal appears unconnected with the issue before it, and it is a serious misdirection for the Court to say that “it must have been obvious to any person who let out the premises to the defendant, a fish dealer, to what use the premises would be put.” Surely, ft does not necessarily follow that fish dealer would put the premises to the use described by the appellant in his affidavit.

 

In the circumstances, we hold that the Court of Appeal Western State was wrong in dismissing the appeal before it.

 

It will serve no useful purpose sending this matter back for re- hearing since ft is clear from the appellant’s affidavit and arguments In Court that the appellant has a right, and that he needs to assert the right which forms the basis on which the claim for relief is asked, and that there is sufficient evidence that it was possible that there was a violation of that right.

 

It Is therefore ordered that the order of the High Court, Ibadan, dismissing the application with 5 guineas costs, and the Order of the Western State Court of Appeal dismissing the appeal therefrom with 25 guineas costs, be set aside, and the interim injunction sought for be granted, and that the hearing of the main action in the High Court be expedited. It is further ordered that the High Court of Ibadan do carry out this Order.

 

The applicant is awarded 10 guineas costs in the High Court, 40 guineas costs In the Western State Court of Appeal and 40 guineas costs In the Supreme Court.

 

Interim Injunction granted.