IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY HOLDEN AT GWAGWALADA BEFORE HIS LORDSHIP.HON. JUSTICE M.BALAMI COURT CLERK..

Transcription

1 IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY HOLDEN AT GWAGWALADA SUIT NO: FCT /HC/GWD/CV/585/11 BEFORE HIS LORDSHIP.HON. JUSTICE M.BALAMI COURT CLERK..PAUL OJILE BETWEEN ZIP SYSTEM LTD &2 ORS.PLAINTIFFS/RESPONDENTS AND OMOMAYOWA CO LTD &1OR DEFENDANTS/APPLICANTS Parties absent Umar Musa for the plaintiffs/respondents D.M.B Orji for the Defendants/applicants COURT RULING The Honorable court upon reading/hearing motion on notice dated the 24 th day of May 2012 filed on the brought pursuant to order 7, rules (1&2) order , and under the inherent jurisdiction of the Honourable court. The motion which seeks reliefs 1-2 set out on the face of the motion paper, particularly reliefs (1) which states that

2 (1) An order of interlocutory injunction restraining the plaintiff/respondent, their agents, workmen or representatives from forcefully entering, trespassing and or disturbing of quiet possession and or disturbing and enjoyment of the property known as Block 1 of God s own Estate located in plot No: 45 of Wumba District Apo Abuja, otherwise than by the order of the Honourable court pending the determination of the substantive case. (2) And for such further orders as the Honourable court may deem fit to make in the circumstance of this suit. the Honourable court also having gone through a paragraphs affidavit deposed to by one DR. R. N. Owoyemi the managing Director, and chief Executive officer of the 1 st defendant/ applicant in this suit dated the same , the annexure, so also the affidavit of urgency, which is 6. Paragraph deposed to by the same deponent, so also the counsel written address, which discussed, the motion on notice filed before the Honourable court the reliefs sought and Exhibit A having placed reliance on all the paragraphs of the affidavit so also the Exhibits and all the issues for determination which states whether the defendant/applicant is entitled to the grant of this application. The legal argument which ran thus: interlocutory injunction is granted to preserve and protect the right of parties before the court from destruction by either party to the case or where the right of a party has been threatened see Obeya Memorial Hospital Vs. AGF (1987)3 NWLR (PT60)325, KotoyeVs. CBN (1989)1 NWLR (PT 98)419 and from the

3 foregoing authorities the following factors guide the grant or refusal of interlocutory injunction which are as follows: (a) The existence of legal right (b) Whether there are triable issues before the court (c) Balance of convenience (d) Whether damages will assuage the injury the applicant will suffer if the order is not granted. (e) Undertaking to pay damages. See KotoyeVs. CBN (supra) Obeyamemorial Hospital Vs. AGF. That on the 1 st factor, pray the Honorable court to hold that the applicant has established the existence of a legal right in the subject matter sought to be protected in as much as the 1 st defendant/applicant herein is the rightful owner of the subject matter of the application see paragraphs 3&4 of the affidavit in support, having been allocated same by the 2 nd defendant for Mass housing scheme, also a very close perusal of amended statement of claim of the plaintiff/ Respondent shows that the plaintiff/respondent are not claiming the ownership/title or any interest in the subject matter, and not part of the alleged transaction leading to the instant suit hence the applicant has established its legal in the subject matter of this application. On the 2 nd leg, existence of triable issues pray the Honorable court to hold that the plaintiff/respondent amended statement of claim of defence of the 1 st defendant/applicant so also the affidavit in support established that the ownership of or interest in plot No:86, 90 and 93

4 and as such there are serious issues to be tried, by the Honorable court hence the main suit is not frivolous hence the issue before the Honorable court is bordering on title of aforesaid plots. On the 3 rd leg balance of convenience pray the Honorable court to hold that the purpose of injunction is to inter alia present any threatened wrong or apprehend waste or trespass see AdewaleVs.Adeshino(1990)2 NWLR (PT 431) Page 391. That the plaintiff/respondent stand to lose nothing if this application is granted as the subject matter in this application does not form part of the plot being litigated by the parties but that if the continuous act of trespass or interference by the plaintiff/respondent is not restrained, it will affect and disrupt the mass housing scheme for which the plot is allocated to the 1 st defendant/applicant by the 2 nd defendant and thus will affect the occupation of the said property/building by the applicant or their agents and same will occasion a breach of public peace, chaos and anarchy in the Estate see paragraph 6 of the affidavit in support. On the issue of award of damages at the end of the trial the plaintiff/respondent if the plaintiff/respondent are not restrained it will affect the whole mass housing scheme which has run in millions of Naira beyond the financial capability of the plaintiff/respondent. That on the last leg, the 1 st defendant/respondent if upon the grant of same the order turns out to be frivolous, praying the Honorable court to grant this application that it is the interest of justice to check and abate the lawlessness of the plaintiff/respondent or their agents.

5 The Honorable court also having gone through the 27 paragraph counter affidavit deposed to by one Jacinta Okoye a legal practitioner in the law firm of Zion Chambers of D.M.B Orji & Associate, so also the reply opposing the grant of this application (address) which also discussed the introduction, the motion filed before the Honorable court on the , the rules of the Honorable court under which the application is brought order 1 rule 1 and order 31 rule 1&2rules of the Honorable court 2004,the reliefs 1-2 sought before the Honorable court and the issues raised for determination by the plaintiff/respondent as to: (1) whether the defendant/applicant disclosed all the facts of the case to enable the court grant him the reliefs sought and as to whether release can be made on a matter that is lispendisand also whether balance of conveniencelispendis and undertaking to pay damage are fundamental factors to be considered before the grant of an injunction. The argument on issue No.1 The need to disclose all facts in application for injunction and effect of failure to do so, praying the Honorable court to hold that in the instant case the applicants deliberately suppressed factssee Adeyemi works construction Ltd VsOmolehin (2004)6 NWLR(PT870)at 650 also paragraph 3&4 of the affidavit in support of the motion are contrary with the paragraph 51 where the plaintiff sought for an order of court to sell Block 1, in plot45 Wumba District in God s own Estate Abuja, see also paragraph 48 of the plaintiff s statement of claim, which avers that

6 since demolition in 2010, the 1 st defendant had sold more than 10 buildings within the Estate which non is less than N30,000,000.00(Thirty million Naira)which the defendant refused to compensate the plaintiff as promised and that if the application is granted the 1 st defendant will dispose the said Block 1 in God s own Estate Apo Abuja. That it is trite law that in any application for injunction the facts of the case must be disclosed and failure to do that the court will refuse the application. That the defendant/applicant wants to deceive the court by virtue of his affidavit in support of the motion which suppressed facts of this case praying the Honorable court to decide issue No.1 in favour of the plaintiff/respondent that facts of the case were not disclosed. On the issue whether injunction can be granted on a subject matter that is lispendis meaning pending law suit, it denotes the jurisdiction power or control acquired by a court over property during the pendency of an action or suit which is usually recovered in claim of title to real property required or permitted in certain common law jurisdiction to warn all parties that certain property is subject of a litigation or law suit and that any interest that may be acquired during the pendency of the case are subject to its caution, which is also termed notice of lispendes or notice of pending suit which is synonymous as such terms as pendes lite cite pendes and that the purported essence of the doctrine of lispendes (pendes lite)is that parties in a proceeding in court must not do anything

7 which may have the effect of rendering nugatory the ultimate judgment of the court. On issue 2 Whether the balance of convenience, lispendes and undertaking in damages are fundamental factors to be considered before granting an injunction and what application for interlocutory application needs to establish is as follows: (1) The existence of legal right in the application (2) The presence of triable issues in the matter (3) That the balance of convenience in the suit tilts in favour of the applicant. (4) That damages will not adequately compensate the applicant if the injunction sought to be restrained occurred and the principle guiding the grant of same is also set out on the face of the written address numbered A-E. On the issue of legal right of the applicant, the most important condition is for applicant to show that he has a legal right which is threatened and ought to be protected, hence it follows that the court has no power to grant an injunction where the applicant has not established a recognizable legal right, which the establishment of same in sine quo non and the condition precedent for the grant of some equitable remedy/relief see AkpoVs Hakeem Habeeb (1992) 6 NWLR PT247.

8 Praying the Honorable court to hold that in the instant case, the defendant/applicant has not shown to this court thus his legal right for the grant of this application, or that his right has been infringed upon to enable the Honorable court granting this application. On the issue of relevant consideration in weighing the balance of convenience between the parties in an application of such a nature (interlocutory injunction) is where there is a doubt as to the inadequacy of damages available to the other party or both that the question of balance of convenience rises the extent of disadvantage to each party would be incapable of being compensated in damages in event of his succeeding at the trial which is a significant factor asking where balance of convenience lies. This can be considered on the very relevant factors of compensating available damages see ItaVsNyowa (1994)1 NWLR (PT 318) that balance of convenience between parties is the basic determinant factor in an application of such nature and in doing so the law requires same requirement of scale of justice to see where the pendulum tilts. The law does not require mathematical exactness which results to disadvantage to one or otherwise, which damages cannot compensate i.e defined as balance of justice see FrancomeVsMirror Group of Newspaper Limited which sir John Donaldson called balance of justice, and that the applicant must show that the balance of convenience is on his side, which means more justice will result in granting the application than refusing it.

9 i.e.will the applicant suffer more inconvenience if the application is not granted and the meaning of same cannot be better put than the definition given in the case of CBN VsAwogbovo by Tobi JSC that onus of proving the balance of convenience is on the side of the applicant which is important factor in land cases and the stage at which the plaintiff moves could be a decisive factor and the question is will the applicant suffer more damages /inconvenience if the application is not granted which the answer is no and that it is the respondent who will suffer more inconvenience in that the defendant/applicant states that what is left for him is only Block 1 plot 45 Wumba Estate and that if the application is granted he will dispose the building and if the outcome of this case is in favour of the plaintiff/respondent then it will render the judgment nugatory. On the issue of principle of guiding the consideration of damage in a case for application of such a nature to succeed in his claim he could not be adequately compensated by award of damages against the respondent and that undertaking to pay cost/damages is not a prima facie that can be granted. On the issue No 3 Whether the issue of speedy trial in lieu of interlocutory injunction will not do more justice that the grant of an injunction, pray the Honorable court to hold that speedy trial is an essential element of law as justice delayed is justice denied and matters are delayed in court because of such applications, particularly parties failed to take advantage of the

10 provisions of rules of court which makes court to make orders and order for accelerated hearing instead of making applications of such a nature see order 31 rule 5 of the high court civil procedure rule so also 31 rule 2 of the same rules. On the issue whether the accelerated hearing instead of granting an order of interlocutory injunction which in most cases such application the justice of the case can quite often be met by accelerating the hearing instead of granting such an order. In that successful applicant for interlocutory injunction simply keeps in status quo until completion of hearing but that successful hearing disposes off the matter for good and the better in that in the accelerated hearing instead of wading through massive affidavit and hearing of lengthy arguments on such an application that the court should accelerate the hearing and decide finally on the right of the parties see OnyesonVsNnebedum (1992)3 NWLR (PT229)315, AkpoVs. Hakeem (1992)6NWLR 247,266, see also ACB LTD VS Awogboro (1996) 3 NWLR(PT 347) at page382 at 407,per Mohammed JSC at page 408 paragraph A-E it is quite clear that the opinion taken by the plaintiff/applicant is abandoning the chance to prove his case given an accelerated hearing to pursue appeal to this court for restoration of an interim expert order of injunction is not a wise decision this in taking into consideration that the main relief in the substantive action in an order of perpetual injunction against the defendant / respondent restraining them from committing various acts in breach of the right of appellant in connection to registered trade mark and design, that accelerated hearing of the matter given could have

11 settle once and for all the respective right of the parties at trial, all that instead of the applicant ask for same, had to spend the more 10years chasing an interlocutory injunction up to the supreme court. On the issue of discretionary power of court to grant application of such a nature, vice versa the actionable of applicant in court the issue of such an order is purely at the discretion of court which should be exercised judiciously and judicially, and once the court is satisfied that the principle of law of application of such a nature has been met, i.e. The grant and refusal of such application by court of law, is always to protect the exercise of the discretionary power that a judicial discretion properly exercise ought to be found upon the facts and circumstances presented to court, which a conclusion guided by the law will have to be drawn, and that it judicial discretion has been exercised bona fide not arbitrarily or illegally by court law an appeal court will not interfere with the exercise. That the decision of granting accelerated hearing instead of granting the order is order is at the discretion of the court that should be exercised judiciouslyand judicially see D.P.C.C LTD VS B.P.C LTD (2008)4 NWLR (PT 1077) at Praying the honorable court to hold, that in view of the above submission and authorities cited therein, it is clear that balance of convenience is on the side of the plaintiff /respondent, who has lost so much money to the defendant applicant and that the grant of this application will definitely render the outcome of this suit nugatory in view of aforementioned reasons praying the honorable court to acceleration the hearing of this case the Honorable court is of the

12 view that the essence of grant of an order of interlocutory injunction is to preserve the res (the subject matter in dispute before the court that is in litigation, so as to give its judgment an effect see NJC VS F.C.L CO LTD (2007)2 NWLR (PT 1019) 610 at 628 paragraph G - H which the Honorable court is now of the view that the proper order to make in circumstance is to grant the said order of interlocutory injunction against both the plaintiff/respondent and the defendant/applicant, their agents workmen, or representative from forceful entry, trespass/tampering with the piece or plot of land described as Block 1, of God s own Estate located in plot No. 45 WumbaDistrict Apo Abuja, pending the determination of the substantive suit before the Honourable court. It is also further ordered that this suit be given an accelerated hearing that is to put an end to the dispute between the parties and the Honourable court so hold Signed Judge