IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY HOLDEN AT HIGH COURT OF JUSTICE WUSE ABUJA ON THE 20 TH DAY OF MAY, 2013 BEFORE HIS LORDSHIP: - HON. JUSTICE M.A NASIR COURT NO.:- HIGH COURT TWENTY TWO (22) MOTION NO.:- FCT/HC/CV/856/2012 BETWEEN: OKON NKANU EFUT, SAN PLAINTIFF/APPLICANT AND MR. ABDULKADIR TANKO MADUGU DEFENDANT/RESPONDENT RULING Before this Court is a motion on notice dated 19 th December, 2012 brought pursuant to Order 7, Order 23 Rule 1 of the High Court Civil Procedure Rules and under the inherent jurisdiction of this Court. The plaintiff/applicant is praying this Court for an order of interlocutory injunction restraining the defendant by himself or acting through any person or persons from encroaching or further encroaching, trespassing or further trespassing, destroying or further destroying, taking over or further taking over, taking control or further taking control of the plot of land situate, lying and being at plot No. XK 671 A, Apo layout, Abuja and which is covered by the offer of the terms of grant/conveyance of approval dated the 16 th August, 2006, Page 1
and which measures an area of approximately 800 square metres pending the determination of the substantive suit. 2. An order of interlocutory injunction restraining the defendant either by himself or acting through any of the servants, agents, privies or through any person or persons howsoever from encroaching or further encroaching, trespassing or further trespassing, taking over or further taking over, exercising or further exercising any right whether possessory or otherwise, or taking any further steps towards the development of the plot of land situate, lying an dbeing at plot No. XK 671 A, Apo layout, Abuja and which is covered by the offer of the terms of grant/conveyance of approval dated the 16 th August, 2006 and which measures an area of approximately 800 square metres pending the determination of the substantive suit. And the omnibus prayer. The application is supported by an affidavit of 22 paragraphs deposed to by one Cyril Agu. Attached are 6 annexures and a written address duly adopted. Peter Oche Ofikwu Esq raised one issue therein which is whether the applicant is entitled to the grant of an order of interlocutory Page 2
injunction and thereby entitled to the exercise of the discretion of the Court. Counsel submitted that the position of law as crystallized is whenever an application for interlocutory injunction is pending before the Court for determination, four questions need to be determined. And in Kotoye vs. CBN (2001) FWLR (part 49) 1567 at 1576, the relevant factors were stated as follows: (a) Whether there is a serious question to be tried. (b) In whose favour is the balance of convenience? (c) Will damages be adequate compensation for the applicant? (d) Whether there was delay in bringing the application. Counsel argued that on hearing and determination of an application for interlocutory injunction, the first thing the applicant has to show is that there is a serious question to be tried, which the applicant has successfully shown in his affidavit. Reference was made to Khadiya vs. Khadiya (2001) FWLR (part 70), 1586 at 1588, Ihunde vs. Samson Rogers Nig. Ltd (2000) FWLR (part 16) 2782 at 2784. He added that it is not necessary for the applicant to even show that he has prospects of obtaining a permanent injunction at the end of the trial. All that is required of him at this stage is to show that there is a Page 3
serious question of law between the parties to be tried at the hearing. He cited Onyesoh vs. Nnebedum (1992) 3 NWLR (part 229) 315, Bolatito vs. Sole Administration (1986) 5 NWLR (part 42) 496 at 312. He further submitted that for an application for interlocutory injunction to be granted all the Court needs to look at is the pleadings and the affidavit evidence placed before it. Also the Court should not make pronouncements which may prejudice the trial of the claims filed and still pending. He cited Obeya Memorial Hospital vs. Federation (1987) 3 NWLR (part 60) 325, Akpomude vs. Gov. Delta State (2003) 9 NWLR (part 826) 561, Ekwomchi vs. Ukwu (2002) 1 NWLR (part 749) 90, Globe Fishing Industries Ltd vs. Coker (1990) 7 NWLR (part 162) 265. On the balance of convenience, counsel cited ACB vs. Awogboro (1991) 2 NWLR (part 176) 711 at 718 719 while submitting that the applicant will suffer a lot of hardship and inconvenience if the respondent is allowed to continue his acts of trespass and adverse possession. Page 4
On whether damages can adequately compensate the plaintiffs if this application is refused and judgment turns out in his favour, counsel submitted that it has been held in plethora of cases that where an award of damages will not compensate the applicants, the Court should grant the application for injunction. Counsel cited quite a number of cases. And added that the essence of interlocutory injunction is to maintain status quo ante pending the determination of the substantive suit. On whether the applicant is guilty of delay counsel argued that from the antecedents of events that transpired the applicant is not guilty of delay. The defendant filed a 19 paragraphs counter affidavit deposed to by one Abdulkadir Tanko Madugu supported by 4 annexures and a written address wherein Adisa Olugbemi Robinson Esq raised one issue for determination i.e. whether the plaintiff has placed sufficient materials before the Court by way of facts and documents to justify the exercise of this Courts discretion of granting interlocutory injunction in his favour. Counsel submitted that an applicant for interlocutory injunction must place before the Court by way of cogent and compelling evidence, the legal right he is seeking to protect by Page 5
the grant of the injunction. He cited Buhari vs. Obasanjo (2003) FWLR (part 187) 202. He added that the applicant having failed to produce the necessary documents including the consent of the minister to assign to him coupled with the contradiction in his case has failed to establish a legal right worthy of protection by a grant of interlocutory injunction. He cited Savannah Bank vs. Agilo (1989) 9) 1 NWLR (part 97) at 306, Mcfoy vs. UAC (1961) All ER at 11. He argued that the plaintiff stands to lose nothing as the defendant is not doing any development on the land, the balance of convenience therefore is in refusing the application as no loss or inconvenience will be suffered by the plaintiff, instead it is the defendant who has established a legal right to possession of the land that will suffer if he is unable to possess his land. He cited ACB vs. Awogboro (1991) 2 NMLR (part 176) at 718. He argued further that the plaintiff is seeking for N30 Million as damages and this is an indication that the plaintiff has quantified his damages which will be an adequate compensation. He cited The Registered Trustees of the Peoples Club of Nig. vs. The Registered Trustees of Ansar Ud Deen Page 6
Society of Nig. (2000) 5 NWLR (part 657) 368. He added that the applicant is guilty of delay in this instance. Counsel has further added that the plaintiff has failed to ascertain the boundaries of his land and therefore an injunction cannot be granted. He cited Lawal vs. Adeleke (2004) 48 WRN 35. Counsel finally urged the Court to order for accelerated hearing. Reference was made to Isyaku vs. Master (2003) 5 NWLR (part 814) 443. The whole essence of interlocutory injunction is to restrain a party from taking special steps. It is made before the actual trial of a case and is granted to keep matters in status quo until trial. See Anthony vs. Surveyor Gen. Ogun State (2007) All FWLR (part 354) page 375 at 390, Novartis Pharma Services Inc. vs. Swissco Nig. Ltd (2004) 2 NWLR (part 856) page 28. The conditions for the grant of an interlocutory injunction are now fairly well settled. They have been set out in the submissions of plaintiffs counsel. A fundamental rule of law is that it is for an applicant for an interlocutory injunction to satisfy the Court that there is a serious question to be tried as between him (applicant) and the defendant (respondent). An applicant must satisfy the Court, if Page 7
he is to succeed, that there is a serious question to be tried in addition to his satisfying the Court that he has a right which ought to be protected. See Union Beverages Ltd vs. Pepsicola International Ltd & ors (1994) LPELR SC. 81/1990. In this instance, there is no doubt that there is a subsisting suit vide the writ of summons dated 15 th of November, 2012. The applicant has the burden to satisfy this Court that there is a serious issue to be tried in relation to him having a right which ought to be protected by the Court. The applicant at this stage is not expected to show a strong prima facie case. Once the applicant establish that there is a substantial issue to be tried at the hearing, the burden is discharged see Oduntan vs. General Oil Ltd (1995) 4 NWLR (part 387) page 1 at 13. From the averments in the supporting affidavit and exhibits attached as well as argument of counsel, this Court is satisfied that there are serious questions to be tried. The applicant must also show that he has a legal right over the subject matter of the suit, the protection of which an injunctive order could be invoked. See James Obijuru & ors vs. Lawrence Anokwuru & ors (2001) 17 NWLR (part 743) page 685. Page 8
The arguments of the respondents counsel on this issue certainly calls for the determination in the substantive suit. I am therefore mindful not to say anything with respect to those arguments in order not to prejudge the issues arising for determination in the substantive suit. Furthermore in the case of Adewale vs. Gov. Ekiti State (2007) 2 NWLR (part 1019) page 634 at 638, the Court held that an applicant seeking an order of interlocutory injunction is required to show that he is not guilty of delay in bringing the application, because delay defeats equity. The applicant seeking an order of interlocutory injunction has to show that the balance of convenience is on his side, that is to say, more justice will result in granting the application than in refusing it. See Okafor vs. Att. Gen. Anambra State (1988) 2 NWLR (part 79) page 739. The applicant has deposed to the fact that he has been in possession of the plot since the 15 th of June, 1995 when it was allocated to him until early in the month of September, 2012 when he discovered that some unknown persons went and destroyed the fence, which prompted him to report to the Police, and investigation began on the matter. This suit was filed on Page 9
the 15 th of November, 2012. It is my considered view that the applicant is not guilty of delay. The next issue to consider is balance of convenience. In considering the balance of convenience this is determined by what the applicant will lose if the application is refused and they succeed at the trial, and what the respondent will lose if the application is granted and they succeed at the trial. One must look at the whole case to see whether there is a question to tried, then look at the balance of convenience between the parties bearing in mind that there is a good reason why the status quo should be maintained. See American Cynamid vs. Ethicon Ltd (1975) 1 AC, Orji vs. Zaria Industries (1992) 2 NSCC page 313 and Laffri Nig. Ltd vs. Nal Merchant Bank Plc (2001) 35 WRN. It is the duty of the Court in finding balance of convenience to be satisfied that there are facts disclosed in the affidavit in the matter before it. See the case of Bello vs. A. G. Lagos State (2006) All FWLR (Part 324) page 1958. The law does not require mathematical exactness, it suffices if from the measurement of the scales of justice, the pendulum tilts in favour of the applicant. See ACB vs. Awogboro (1991) 2 NWLR (part 176) page 711 at 719. Page 10
Learned counsel to the applicant has urged the Court to hold that the balance of convenience tilts in favour of the applicant. Counsel to the defendants on the other has argued that it is the defendant who has established a legal right to possession of the land who will suffer, if he is unable to possess his land upon which he has a legal right. The plaintiff stated that he is the owner of the plot in question has been to the Abuja Geographic Information System (AGIS) to process the Certificate of Occupancy since 2009. Nobody has told him anything about the land being allocated to someone else. The defendant on the other hand stated that he was allocated the plot on the 22 nd October, 2010 and he laid claim to the plot and took the plaintiffs successor in title to the issuing authority but his identity was not found. And the plaintiff has never been in possession of the plot. The defendant has also deposed to the fact that the plaintiff has nothing to lose since there is no development on the plot. The Courts have always emphasized the need for litigating parties to abide by rule of law. Once parties have submitted to the jurisdiction of the Court, they must not resort to self help. Page 11
In other words, once the Court is seized of a matter no party has a right to take the matter into his own hands. It is always better to keep matters in status quo. See Nwadiajuebowe vs. Nwawo (2004) 6 NWLR (part 869) page 435. Similarly in Okomo v. Umoetuk (2004) 10 NWLR (part 882) 526, the Court held where the facts deposed to in an application for interlocutory injunction filed in a suit where Pleadings have been completed, relate and touch on the substantive issue in the suit, the proper order to make is an order for accelerated hearing of the suit, so that the suit can be determined once and for all. I have gone through the reliefs in this application and I must say that they are similar to the substantive reliefs before this Court. And the best course to take in the circumstance is to accelerate the hearing of the substantive suit. Accordingly, accelerated hearing is thus ordered and both parties must maintain the status quo pending the hearing and determination of the substantive suit. Signed Honourable Judge Appearances: Peter Ofikwu for the plaintiff/applicant O.R. Adisa for the defendant/respondent Page 12