ATAIJE & ORS v. HIS MAJESTY, KING A. M.IKURU, KSC, OKANAMA VII & ORS

CITATION: (2018) LPELR-45946(CA)

In the Court of AppealIn the Port Harcourt Judicial Division

Holden at Port Harcourt

ON MONDAY, 16TH JULY, 2018Suit No: CA/PH/22/2018

Before Their Lordships:

ALI ABUBAKAR BABANDI GUMEL Justice, Court of AppealTHERESA NGOLIKA ORJI-ABADUA Justice, Court of AppealCORDELIA IFEOMA JOMBO-OFO Justice, Court of Appeal

Between1. ATHANASIUS JAMES ATAIJE2. MR. NATHAN ASUK3. DR. UNYEJIT ASUK WILL4. ROYLAND IYEORON5. UKPATU GABRIEL6. ADOLPHUS ASUK7. JULIUS UKOTIJE(For themselves and as representing the entiremembers of the Asukama Village of Andoni LocalGovernment Area of Rivers State)

- Appellant(s)

And1. HIS MAJESTY, KING A. M. IKURU, KSC, OKANAMA VII2. H. H. UBOON JONAS GOGO MININI-OYO3. SIR, CHIEF (DR.) S. H. OWONTE4. CHIEF (DR.) HON. D. P. IKANYA, J.P5. CHIEF NDEN N. OFIK6. CHIEF JUSTUS AWAJI HEBRON-ORON, J.P7. ELDER NATHAN OKE8. MR. CORNELIUS LAWRENCE UBULOM9. MR. CHARLES DODD GILBERT(For themselves and as representing the entire members of theIkuru Town Community, Andoni Local Government Area of RiversState)

- Respondent(s)

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RATIO DECIDENDI1. APPEAL - APPEAL AS OF RIGHT: Circumstance(s) when an appeal shall lie as of right

"Now dealing with issues arising herein, I would firstly observe that the preliminary objection raisedby the Respondents regarding the failure on the part of the Appellants to attach a copy of the leaveobtained for filing an interlocutory appeal to their Notice of Appeal is spurious when viewed in thelight of the provisions of Section 241(1)(ii) of the 1999 Constitution as amended which says that anappeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal asof right where an injunction or the appointment of a receiver is granted or refused. The appeal isagainst an injunction, and it was not qualified i.e. limited in some way, either as a final or aninterlocutory order, in the Constitution. It is pertinent to note that paragraph (a) of Section 241(1) ofthe 1999 Constitution as amended is clear on its stipulation by emphasizing on the word "final". Theword "final" explicitly qualified the sort of decisions that would be appealed against as of right by thepeople affected in any civil or criminal proceedings before the Federal High Court or a High Courtsitting at first instance. The same Constitution did not deem it necessary to qualify the word"decisions" stated in paragraph (f) (ii) of the same Section 241(1) because that was not theintendment of the law makers. It merely stated "decisions made or given by the Federal High Court ora High Court-where an injunction or the appointment of a Receiver is granted or refused. It did notspecify any type of decision granting an injunction. It is simply stated a decision where an injunctionis granted or refused. Whether it is against a decision granting a perpetual injunction or aninterlocutory injunction, the appeal will be as of right as stated in Section 241(1) of the 1999Constitution. This is buttressed by the judgment of this Court delivered on the 2nd February, 2018, inAppeal No. CA/PH/505/2016 - Between: CIVIL SERVICE COMMISSION RIVERS STATE& 4 Ors and DR(MRS.) JUSTINA JUMBO & Anor, where this Court held thus: "Section 243(2) of the Constitution of theFederal Republic of Nigeria 1999 (as amended) provides that "an appeal should lie upon the decisionof the National Industrial Court as of right to the Court of appeal on question of fundamental rights ascontained in Chapter IV of the Constitution as it relates to matters upon which the National IndustrialCourt has jurisdiction". What is distinct in the above provision is that the word "decision" was notquantified as was the case in Section 241(1) (a) of the same Constitution which says that "An appealshall lie from the decision of the National Industrial Court or High Court to the Court of Appeal as ofright in the following cases - (a) final decisions in any civil or criminal proceedings before the FederalHigh Court or a High Court sitting at first instance. Further, Section 241(1) of the 1998 Constitutionalso stipulated that appeal shall be as of right" (d) in decisions in any civil or Criminal proceedings onquestion of law as to whether any of the provisions of Chapter IV of this Constitution. The distinctionin the provisions of Section 241(1) (a) of the 1999 constitution is the word "...." which was used toqualify the word "decision". Then in Section 241(d) and 243(2) of the 1999 Constitution as amended,the word "decision" or "decisions" used therein were not qualified or circumscribed or confined towhen it is a final one. By the interpretation Section 318 of the 1999 Constitution as amended, theword "decision" "means in relation to a Court, any determination of that Court and includes judgment,decree, order, conviction, sentence or recommendation. "The word is all encompassing as itsmeaning includes "any determination of the Court i.e. any official decision of the Court, that is to say,be it final or interlocutory, so long as it touches on questions of fundamental rights as contained inChapter IV of the Constitution, the appeal therefrom shall be as of right irrespective of whether it wasproperly raised or whether it will succeed or not. The decision of this Court in Alhaji Maro Saadu Olojevs. Alhaji Wahab Alawo (2003) LPELR-CA/IL/36/2001 clearly buttressed this view. It was held therein,per Amaizu, J.C.A., relying on the case of Stella Abisola Adelakun vs. Isaac Bamidele Adelakun (1995)7 NWLR Part 308 page 741 that an appeal from an interlocutory decision of a High Court on an issuerelating to the grant or refusal of injunction can be brought as of right without leave of either theCourt of Appeal or of the High Court by virtue of Section 220(1) of the 1999 Constitution. It was heldthat the ruling delivered by the lower Court therein was covered by Section 241 and not Section 242of the 1999 Constitution. Consequently no leave is required to bring the appeal."The second and third grounds of the objection are also unfounded as the ruling being appealedagainst is contained at pages 1060-1067 of the record of appeal, 2nd Volume. The Respondents'preliminary objection is unsustainable and it is hereby overruled."Per ORJI-ABADUA, J.C.A. (Pp. 27-31,Paras. A-C) - read in context

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2. PRACTICE AND PROCEDURE - INTERIM/INTERLOCUTORY INJUNCTION: Guiding principles forgrant of interlocutory injunction"It is the law that interlocutory injunction is to mitigate the suffering of the party applying for it sothat he will not be in unnecessary hardship during the pendency of the substantive suit. It is alwaysgood to prevent injustice that most invariably could not be cured properly at the end of thesubstantive case if it was not granted, per Belgore, J.S.C., (as he then was) in Military Administrator,F.H.A vs. Aro (1991) 1 NWLR Part 168 page 405. Factors that guide the Court in granting anapplication for interlocutory injunction had been severally set out by the Supreme Court ininnumerable cases. "Interlocutory injunction is procedurally between interim injunction and perpetualinjunction. It is an injunction granted by the Court pending the determination of the case. The locusclassicus is Kotoye vs. Central Bank of Nigeria (1989) 1 NWLR (Pt. 98) 419, a decision of this Court. Inthat case, this Court held as follows:(a) that the Applicant must show that there is a serious question to be tried, i.e. that the applicant hasa real possibility, not a probability of success at the trial, notwithstanding the Defendant's technicaldefence (if any). (Obeya Memorial Specialist Hospital vs. A-G Federation (1987) 3 NWLR (Pt. 60) 325followed.)(b) That the Applicant must show that the balance of convenience is on his side; that is, that morejustice will result in granting the application than in refusing it. Missini vs. Balogun (1968) 1 All NLR318 referred to;(c) That the Applicant must show that damages cannot be an adequate compensation for his damageor injury, if he succeeds at the end of the day.(d) That the Applicant must show that his conduct is not reprehensible for example that he is notguilty of any delay.(e) No order for an interlocutory injunction should be made on notice unless the applicant gives asatisfactory undertaking as to damages save in recognized exceptions.(f) Where a Court of first instance fails to extract an undertaking as to damages, an appellate Courtought normally to discharge the order of injunction on appeal." See also Globe Fishing Ind. Ltd. vs.Coker (1990) 7 NWLR (pt. 162) 265; Akibu vs. Oduntan (1991) 2 NWLR (Pt. 171) 1; Sotuminu vs.Ocean Steamship (Nig). Ltd. (1992) 5 NWLR (Pt. 239) 1; Ogbonnaya vs. Adapalm (Nig) Ltd. (1993) 5NWLR (Pt. 292) 147 and 7-Up Bottling Co. Ltd. vs. Abiola and Sons (Nig) Ltd. (1995) 3 NWLR (Pt. 383)257. "Per Tobi, JSC (Pp. 25-26, paras. E-F). In fact in Saraki vs. Kotoye (supra) the Supreme Court, perNneamaka-Agu, J.S.C., stated that "As for the materials upon which the Court based its decision, Ibelieve it was a misapprehension to suggest, as did the Court of Appeal, that in an application forinterlocutory injunction, the Court must confine its consideration to affidavit evidence. It appears tome, for an example, that on such important decisions as to whether or not there is an important issueto be tried, the Court will be entitled, in fact obliged, to look at the substance of the claim before theCourt as amplified in the pleadings. The Court will take them into account without necessarilydeciding whether or not the averments therein have been proved. And once it is satisfied that there isat least an important issue to be tried, it should proceed to consider the balance of convenience ofthe parties. I must here emphasize that the old principle whereby Courts required an Applicant for anorder of interlocutory injunction to first show a strong prima facie case before it could be entitled tothe order is no longer the law since the decision of the House of Lords in American CyanamidCompany vs. Ethicon Ltd. (1975) A.C. 396. That decision has been cited with approval in manydecisions of this Court. See for an example, Obeya Memorial Specialist Hospital vs. Attorney-Generalof the Federation.The lower Court considered both the affidavit evidence of the parties and the nature of the claimsbefore it and came to the conclusion that reliefs 1 and 3 sought by the Respondents could be grantedwhich we have no reason whatsoever to disagree with. An order of interlocutory injunction is grantedwith the main aim of maintaining the status quo pending the determination of the issues submittedfor adjudication before the Court. We find no reason to disrupt the orders made by the lower Court,and therefore, the issues herein in favour of the Respondents."Per ORJI-ABADUA, J.C.A. (Pp. 38-42,Paras. F-E) - read in context

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THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering

the Leading Judgment): The Respondents commenced an

action against the Appellants on the 13th March, 2017 via a

Writ of Summons which was filed together with their

Statement of Claim in which they seek against the

Appellants jointly and severally the following reliefs:

"1. A Declaration of title or Customary right of

occupancy to all that mass land called IJONG IKWUT

situate at Ikuru Town Andoni Local Government Area

Rivers State and verged RED in the Claimants' Survey

Plan No. KES/RV/2017/001-LD. prepared by Surveyor

S. E. Kalio, B Tech. MNIS, on the 20th day of January,

2017.

2. The sum of Two Hundred and Fifty Million Naira

only (N250,000,000.00) being special, general and

aggravated damages for the Defendants' repeated and

continuing challenges to the Claimants' title to the

land in dispute, continuing acts of trespass upon the

Claimants' said land including their destruction of

the Claimants' twenty room "workers" camp block

building erected by the Claimants upon their land in

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dispute and their apportionment and alienation of

plots or portions of the said land to themselves and

third parties without the Claimants' consent or

mandate.

3. An Order of forfeiture against the Defendants of

the piece or parcel of land occupied by them in

dispute for their continuing challenges to the

Claimants title to the said land being their overlords

and a further Order mandating them and all other

persons howsoever claiming through them to vacate

and deliver vacant possession of the said parcel of

land occupied by them to the Claimant forthwith.

4. An Order of perpetual injunction restraining the

Defendants, their members, hirelings, surrogates,

servants, agents and privies from further trespass

upon, building upon, putting materials of whatever

name upon, selling, allotting, assigning, granting or

in any manner whatsoever alienating or dealing with

any part or portion of the Claimants' land in dispute

or in any manner whatsoever disturbing or interfering

with the Claimants' occupation, use and enjoyment of

their said land and from further impeding their

movement upon or passage through their land

aforesaid or any part or portion thereof.

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5. An Order of perpetual injunction restraining the

Defendants, their hirelings, surrogates, servants,

agents and privies from asserting or further asserting

or claiming title to the Claimants' land in dispute and

or their entitlement to payments, homages,

compensation, rights, privileges and other

entitlements and benefits accruing from, connected

with, made or to be made by third parties in respect

of the said land generally or to the Claimants qua

owners of the said land specifically."

Upon receipt of the Writ of Summons and Statement of

Claim, the Appellants filed their Statement of Defence and

Counter-Claim and the counter-claimed against the

Respondents thus:

A. A Declaration that Asukama (Asukoye tile)

Community does not share common boundary with

Ikuru Town from time immemorial.

B. A Declaration that Asukama Community shares

boundary with Asuskoyet and/or that both

Communities are contiguous and/or bounded by

immemorial and ancient boundary marks, to wit:

(i) From waterfront, the two Communities are clearly

separated by inlet of a narrow creek called Okolo

Edekija.

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(ii) On land by a big iron tree called "Ako" to the

Atlantic Ocean.

C. A Declaration that Asukoyet shares boundary with

Ikuru Town Community and/or Asukoyet and Ikuru

Town are contiguous and/or bounded with a

boundary.

D. A Declaration that Asukama (Asukoyetile) Asokoyet

and Ikuru Town are all offshoot of Ngo district

Communities and Ngo remains the mother Town to

the aforementioned Communities and the

aforementioned Communities enjoy same offshoot

status.

E. A Declaration that any act of occupation, claim of

title to land within the territory of Asukama by any

other Community including but not limited to the

Defendants on record beyond the aforementioned

natural boundary marks between Asukama and

Asukoyet remains acts of trespass to the land and/or

territorial land mass of the Asukama Community with

respect to which they have enjoyed undisturbed and

peaceful possession from time immemorial.

F. A Declaration that Asuk Ama Community is neither

within the territory of Ikuru Town nor under the

jurisdiction of His Royal Majesty King A. M. Ikuru but

remains an autonomous and indigenous Community

in Adoni Local Government Area of Rivers State and

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therefore not customary tenants in Ikuru Town

Community or any other community at all.

G. An Order of perpetual injunction to issue

restraining the Defendants whether by themselves,

agents, servants, privies, Successors-in Title and/or

any other person claiming through them from

committing further acts of trespass against the

Claimants' land/or territory."

Then on the 13th March 2017, the Respondents filed a

Motion on Notice and prayed the Court for the following

orders:

"1. An Order of interlocutory injunction restraining

the Defendants/Respondents by themselves, their

servants, agents, thugs, hirelings or privies from

partitioning, selling, allotting, donating, granting,

leasing, putting building materials, digging, building

upon, putting building materials or any other

structures or things upon, changing the character of,

or in any manner whatsoever dealing or further

dealing with the Applicants' land in dispute pending

the determination of the substantive suit.

2. An Order of interlocutory injunction restraining the

Defendants/Respondents from further challenging the

Applicants' ownership of or title to,

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asserting ownership of, claiming, demanding or

presenting themselves to and third party as the

persons entitled to any payment, monetary or other

interest in either the whole or any part of the

Applicants' land in dispute and from receiving any

such payment or monetary or other compensation

from the said party for its acquisition, lease or rent of

or other interest in either the whole or any part of the

Applicants' land in dispute and from receiving any

such payment or monetary or other compensation

therefore pending determination of the substantive

suit.

3. An Order of interlocutory injunction restraining the

Defendants/Respondents from harassing, threatening

or disturbing Applicants' use and enjoyment of their

land/ disturbing or in any form or manner whatsoever

from impeding their passage through or their lawful

activities on the said land and from further invading

or attacking the Applicants' Ikuru Town Community

or destroying their properties upon the said land or

disturbing or disrupting the lawful activities or

businesses of the Applicants' lessees, grantees,

licencees or any person, body or persons claiming

through them

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pending the determination of the substantive suit.

4. Any other order or orders that this Honurable

Court may deem fit to make in the circumstances."

The application was supported by a 70 paragraph affidavit

deposed to by His Majesty, King Aaron M. Aaron Ikuru,

Okanama VII, the Traditional Ruler of Ikuru Town. It had

attached to it some documentary evidence depicted as

Exhibits A-Z. The Appellants filed a counter-affidavit to the

Respondents' Motion on the 4th April, 2017. They also filed

a Motion on Notice for interlocutory injunction on the 13th

April, 2017. It was based on the facts averred in the 46

paragraph affidavit sworn to by the 1st Appellant herein

with seven Exhibits annexed thereto. The two Motions were

heard on the same 28/2/2017 and were adjourned for ruling

on the 19th July, 2017. In the lower Court's ruling delivered

on the on the said 19/7/2017, it dismissed the Motion filed

by the Appellants as being unfounded. However, it granted

reliefs 1 and 3 sought by the Respondents in their own

Motion and refused relief 2. The Appellants were

displeased with the decision of the lower

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Court that they filed their Notice of Appeal against the

same which contains four grounds of appeal. The records of

appeal comprising two Volumes were transmitted to this

Court on the 18th January, 2018. Briefs of Argument were

respectively filed by the parties in accordance with the

Rules of this Court.

In the Appellants' Brief of Argument, two issues were

propounded for determination in this appeal thus:

"1. Whether having regards to the affidavit evidence

and law, the lower Court's decision which granted the

reliefs contained in the Respondents Motion on

Notice dated and filed on 13th March, 2017 is not

perverse and liable to the sole fate of being upturned

and/or set aside without much ado? (Distilled from

Grounds 1, 3 and 5).

2. Whether having regards to the law and affidavit

evidence, the Court Below was right when it

dismissed the Appellants' Motion on Notice filed on

13th April, 2017?

The Respondents raised a Preliminary Objection to the

Appellants' Notice of Appeal filed on 18/1/2018, and five

grounds thereof; the record of appeal and the Appellants'

Brief of Argument. It was hinged on the grounds that:

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1. The Notice of Appeal filed by the Appellants in the

Registry of the High Court of Rivers State on the 18th

January, 2018, does not have a copy of the Order of

the Court of Appeal granting them leave to appeal

against the Ruling of the High Court of Rivers State

appealed against, annexed to it as mandated by law.

2. The Record of Appeal does not also include or

contain the Ruling and Order of this Honourable

Court granting the Appellants' leave to appeal against

the Ruling of the High Court of Rivers State appealed

against as mandated by law.

IN THE ALTERNATIVE

3. Grounds 1-5 of the Appellants' grounds of appeal

are grossly incompetent as they are contradictory to

or inconsistent with each other and furthermore,

their respective Particulars do not support or are

either at variance with or extraneous to the said

grounds and the said grounds are further vague,

general in terms, argumentative or disclose no

arguable or reasonable ground of appeal as mandated

by Order 7 Rules 2 and 3 of the Court of Appeal Rules,

2016.

Then regarding the appeal itself, the Respondents

propositioned two issues for determination in the like

manner:

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"1. Whether upon the affidavit evidence of the parties

before him vis-á-vis the law, the learned trial Judge

was right in granting reliefs 1 and 3 of the

Respondents' Motion. (Grounds 1, 2 and 4).

2. Whether upon the Affidavit evidence before him

vis-á-vis the law, the learned trial Judge was not only

right but also legally justified in dismissing the

Appellants' Motion for interlocutory injunction

against the Respondents. (Grounds 3 and 5).

It was submitted by the Appellants' Learned Counsel, Isah

Seidu, Esq., that it is settled law that a Court below cannot

determine the substantive matter at the interlocutory stage

of the proceedings. He relied on the Supreme Court

decisions in the cases of D.P.C.C. Ltd vs. B.P.C Ltd

(2008) ALL FWLR Part 414 page 1437 paragraphs F-G

and Odutola Holdings Ltd vs. Ladejobi (2006) 12

NWLR Part 994 page 321 where it was held that at

the stage of the proceedings in interlocutory

applications, the Court should not attempt to go into

the merit of the matter in controversy, else, it is

tempted to determine to the case at that stage and

leave nothing for the just and proper determination of

the

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suit after the hearing. He referred to the lower Court's

remarks at pages 1066 to 1067 of the record of appeal and

contended that the lower Court erred in law when it

granted reliefs 1 and 3 on the Respondents' Motion on

Notice filed on 13/3/2017 despite the fact that it works

against determination of the substantive suit. He further

cited the decision in Odutola Holdings Ltd vs. Ladejobi

(2006) 12 NWLR Part 994 page 321 in which it was held

that it is the duty of the trial Court or all Courts when

dealing with interlocutory matters to avoid making

statements giving impression that it has made up its mind

on the substantive issue before it. He equally referred to

pages 1065-1067 and submitted that the lower Court while

reviewing the affidavit evidence of the parties misapplied

the law and made perverse findings of fact with regard to

paragraphs 56, 57, 58 and 59 of the Respondents' affidavit

in support of the Motion on Notice for interlocutory

injunction saying that the Appellants admitted the same.

He argued that the Survey Plan referred to by the lower

Court in its said ruling was never attached as an Exhibit to

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the Respondents' Motion for interlocutory injunction. He

made reference to the decisions in Buhari vs. Obasanjo

(2005) 13 NWLR Part 941 page 1; Ngige vs. Obi

(2006) 14 NWLR Par t 999 page 1 ; Duwin

Pharmaceutical & Chemical Co. Ltd vs. Beneks

Pharmaceutical & Cosmetics Ltd & 2 Ors (2008) Vol.

33 NSCQLR 239 at 276;Ogbonnaya vs. Adapalm (Nig)

Ltd (1993) 5 NWLR Part 292 page 147 at 157; Cyprus

Ekwomchi & Ors vs. Chief S. N. Ukwu & Ors (2002) 1

NWLR Part 749 page 570; Orji vs. Zaria Ind. Ltd

(1992) Part 216 page 124 at 141; University Press Ltd

vs. Martins (Nig) Ltd (2000) 4 NWLR Part 654) page

584 at 595; Biocon vs. Kudu Holdings Ltd (2000) 15

NWLR Part 691 page 493 at 506; Adeleke vs. Lawal

(2014) 3 NWLR Part 1393 page 1 at 21-22; The Vessel

"MV Sirius - B" vs. Marine Services & Supply Coy Int'l

Ltd (2017) ALL FWLR Part 874 1 914 paragraphs B-D

per Orji-Abadua, JCA; and contended that the trial Court

ought not to have resolved conflicts in the affidavit

evidence of the parties at the interlocutory stage, such an

exercise must be reserved for the full trial, and that the

Court must avoid all controversial issues

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during hearing of an application for interlocutory

injunction. He submitted that care should be taken not to

make pronouncement which may prejudice the trial of the

claims filed and still pending before the Court. It is safer to

order an accelerated hearing of the substantive action as

opined by the Supreme Court. He further relied on the

cases of Civil Service Union vs. Essien (1985) 3 NWLR

Part 12 page 306; Ajidahun & Ors vs. Olabode & Ors

(2016) LPELR-40092 (CA) the Law Guru James Shehu

Abiriyi (J.C.A.) at pages 14-15 paragraphs F-B; Akapo

vs. Hakeem-Habeeb; A.G. Federation vs. A.I.C Ltd

(2000) 10 NWLR Part 675 page 293 at 308; A.G. Ekiti

State vs. Daramola (2003) FWLR Part 169 page 1121

at 1167 paragraphs F-G; Osuji vs. Ekeocha (2009) 6-7

SC Part 11 page 91 at 112; The Vessel "MV Sirius-

B" ALL FWLR Part 974 page 1913 paragraphs B-E;

Duwin Pharmaceutical & Chemical Co. Ltd vs. Bereks

Pharmaceutical & Cosmetics Ltd & Ors (2008) ALL

FWLR Part 414 page 1420 2008 paragraphs F-D;

Sanni Adisa vs. The State (1991) 1 NWLR Part 168

page 490 at 500 paragraphs F-G; The Attorney

General of Ondo State & 6 Ors vs. Prince Michael

Daramola & 3 Ors

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(2000) 9 NWLR Part 673 on pages 629-630

paragraphs H-A; Inter Contractors Nigeria Ltd vs.

UAC of Nigeria Ltd (1988) 2 NWLR Part 76 page 303

SCN, per Karibi Whyte, J.S.C; Ochonma vs. Unosi

(1965) NWLR 321; Ojogbue & Anor vs. Nnubia& Anor

(1972) 1 ALL NLR Part 2 page 226; Macfoy vs. U.A.C.

Ltd (1962) A.C. page 152 at 160; Adebesin vs. State

(2014) 9 NWLR Part 1413 page 609 at 636

paragraphs G-C per Ngwuta J.S.C.; and Adeleke vs.

Lawal (2014) 3 NWLR Part 1393 page 1 at 24

paragraph C and submitted that the decision of the Court

below is premature and perverse. He urged this Court to

set aside the same and make the appropriate orders in

favour of the Appellants.

In respect of the preliminary objection, learned Counsel for

the Respondent, Chief M. B. R. Urombo, submitted in

respect of grounds 1 and 2 of the Appellants' grounds of

appeal that an intending Appellant must as a precondition

to the validity of the Notice of Appeal filed by him, attach a

certified true copy of the Court's Order granting him leave

to appeal to his Notice of Appeal. Where that is not done,

the Notice of Appeal so filed is incompetent and ought to

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be struck out. Also an incompetent record of appeal cannot

ground an appeal. He argued that it is mandatory in

interlocutory appeals that the Order of the Court granting

leave should be annexed to the appeal. Also, in compiling

and transmitting record of appeal, the Ruling and or the

said Order of the Court granting leave to appeal ought to

be included in the record of appeal, nevertheless the same

were missing from the two volumes of record of appeal

compiled and transmitted to this Court. Learned Counsel

contended that non-attachment of the Ruling and the Order

is fatal to the Appellants' appeal and it renders both the

Notice of Appeal and record of appeal incompetent in law.

He cited the cases of Olorunyolemi & Anor vs. Akhagbe

(2010) 2-3 SC Part 11 page 11 at 25 - 26; Nwanta &

Anor vs. INEC & 2 Ors (2011) 11-12 SC Part 11 page 4

at 37-38 lines 30-35; Ngere & Anor vs. Okuruket

"XIV" & Anor (No. 3) (2016) 12 SC Part 11) page 112;

Yar'Adua & 9 Ors vs. Yandoma & 13 Ors (2014) 12 SC

Part 111 page 64; Madukolu vs. Nkemdilim (1962) 2

SCNLR 341; Macfoy vs. UACand persuaded this Court to

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strike out the Notice of Appeal, the record of appeal and

the Appellants' Brief as being incompetent.

In attacking ground three of the Appellants' grounds of

appeal, the Respondents' Counsel made reference to the

Court of Appeal Rules, 2016 particularly Order 7 Rules 2(2)

and 3 of this Court Rules and the cases of Onochie vs.

Odogwu (2006) 2 SC Part 11 page 153; Amadi vs.

NNPC (2000) 6 SC Part 1 page 66; Order 7 Rules 2(2)

and 3 of the Court of Appeal Rules, 2016; Adegbuyi

vs. APC (2014) 12 SC Part 1 page 72; Oleksandr & 4

Ors vs. Lonestar Drilling Coy Ltd & Anor (2015) 4-5

SC Part 11 page 1; Egbirika vs. State (2014) 1-2 SC

Part 1 page 1; Grosvenor Casinos Ltd vs. Haloui

(2009) 4-5 SC Part 111 page 233; Amale vs. Sokoto

Local Government & 2 Ors (2012) 1 SC Part 1 page

44; Atungwu & Anor vs. Ochekwu (2013) 7 SC Part 11

page 421; Ogundalu vs. Macjob (2015) 3-4 SC Part 11

page 1; Adenuga vs. Odumeru (2003) 4 SC Part 1

page 1; Nwora & 3 Ors vs. Nwabueze & 6 Ors (No. 2)

(2011) 12 SC Part 11 page 1; Ngere & Anor vs.

Okuruket "XIV" & 3 Ors (2014) 5 SC Part 11 page 1;

Oleksandr & 4 Ors vs. Lonestar Drilling

16

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Coy Ltd & Anor (2015) 4-5 SC Part 11 page 1; Osolu

vs. Osolu (2003) 6 SC Part 1 page 1, and submitted that

every Notice of Appeal shall set forth the grounds of

appeal, stating whether the whole or part only of the

decision of the Court below is complained of and that

where a ground alleges misdirection or error in law, the

particulars and then nature of the misdirection or error

shall be clearly stated. The Notice of Appeal shall set forth

concisely and under distinct heads the grounds upon which

the Appellant intends to rely at the hearing of the appeal

without any argument or narrative and that any ground

which is vague or general shall not be permitted.

It was contended that contrary to the mandatory

provisions, the Appellants' entire grounds of appeal are

narratives and argumentative or either vague, general in

terms or disclosed no reasonable or arguable grounds of

appeal.

He stated that grounds 1 and 4 are conflicting and self-

destructive, the Appellants by so doing are clearly

approbating and reprobating at the same time. He argued

that ground 2 is self- contradictory, illogical, unarguable

and unduly argumentative contrary to the Rules and Law.

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He further submitted that ground 3 and its particulars are

vague or in general terms and are bound to be struck out.

He remarked that the couching of ground four is an affront

to good reasoning and logic as what the Appellants termed

perverse find of facts was merely the Order made by the

lower Court granting the Respondents' first prayer that is

quite distinct from findings of fact. He submitted that it is

not a finding of facts and as such it is illogical, mischievous

and amusing, and unarguable. The ground is therefore

incompetent. He further pointed out that ground five is

unknown to law and jurisprudence on interlocutory appeals

as the said omnibus ground of appeal is a complaint about

the Court's evaluation of evidence in a trial and only applies

to appeals against judgments or final decisions of trial

Courts. He stated that the matter has not proceeded to

hearing or trial and as such no evidence was taken. He

argued that the several findings of facts made by the lower

Court which led to the dismissal of the Appellants' Motion

and grant of the Respondents' own Motion have not been

appealed against.

18

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In arguing issue No. 1, learned Counsel for the

Respondents submitted that by the provisions of sections

6(6) and 275 of the 1999 Constitution of the Federal

Republic of Nigeria; Order 38 Rule 4 of the High Court of

Rivers State (Civil Procedure) Rules, 2010; and the cases of

Falomo vs. Banigbe (1998) 60 LRCN 4166 at

4166-4170 Ratio 1-9, 2; Adenuga vs. Odumeru (2001)

1 SC Part 1 page 72 at 80 lines 18-43; Commissioner

of Works Benue State vs. Devcon Ltd (1988) 3 NWLR

Part 83 page 407; Kotoye vs. CBN (1989) 2 SC Part 1

page 1; Mobil Producing (Nig) UNLTD vs. Monokpo

(2003) 12 SC Part 11 page 50; Atungwu & Anor vs.

Ochekwu (2013) 7 SC Part 2 page 42; Section 123 of

the Evidence Act, 2011; and Agbakoba vs. INEC & 2

Ors (2008) 12 SC Part 111 page 171, the Rivers State

High Court has the constitutional, statutory and inherent

jurisdiction and, indeed, a duty to preserve the res in every

dispute before it in order to ensure the suit, if successful, is

not rendered nugatory. He reproduced the contents of

paragraphs 57-68 of the affidavit in support of the

Respondents' Motion and submitted that once it is shown

that the Applicants are in possession by the affidavit and

documents, the

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status quo ought to be maintained and the balance of

convenience tilts in favour of granting the application. He

contended that the Appellants' counter-affidavit did not

challenge or dispute any of the facts averred in the

Respondents' affidavit. They only averred at paragraphs

36-37 that they shared no boundaries with the Respondents

and that their village was separated from the Respondents

community by another village called Asukoyet. He referred

to Exhibit 1 attached to the Respondents' counter-affidavit

being their letter titled "NOTIFICATION OF INTEREST IN

THE BOUNDARY DISPUTE BETWEEN IKURU AND

ASUKOYET", and submitted that by their assertion therein

that they are contiguous communities and that they would

wish to be invited by the committee as interested parties in

the proceeding for an enduring peace, they clearly

admitted they are sharing boundaries with the

Respondents. He submitted that by the Respondents'

survey plan on which they based their application for

injunction, the Appellants are shown to be living within the

boundaries of the Respondents' land in dispute. The only

way the Appellants could have

20

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countered that was to have filled another survey plan

showing otherwise but that was not done by them. He made

reference to Exhibits 7 attached to their counter-affidavit

and "AA", "BB" and "CC" attached to the Respondents'

Further Affidavit which confirmed that they are customary

grantees or at worst, neighbours of the Respondents, and

explained that the 6th Appellant is the 6thsignatory to

Exhibit "CC", that the contents of Exhibits "AA" and "CC"

show that the Appellants were signatories thereto, that

they were living within the Respondents' land territory, that

the payments they received were out of the benevolence of

the Respondents and that they share boundaries with the

Respondents who own the lands to the east of their village

where the Respondents' main community is situated, and to

the west, where the Respondents have their Ukoefek

settlement and south where the Respondents have their

forests, fishing settlements and in respect of which they

received several rents and compensations from third

parties as owners or statutory occupants. He stated that in

law any

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party seeking an order of injunction over a piece of land in

dispute must satisfy the Court of the precise identity and

boundaries of the said land either by filing a survey plan or

by such description of the land that a survey plan can be

produced therefrom. He argued that by paragraphs 38-66

of the Respondents' affidavit, their survey plan was

incorporated into their Motion, therefore the trial Court

was right in relying on the plan depicting the area over

which the Respondents sought their order of injunction

against the Appellant. He submitted that the Appellants

had not only been interfering in the Respondents'

enjoyment of their land but were on the brink of destroying

the Respondents' community and killing members thereof

as contained in the various Petitions the Respondents wrote

to the Police and the photographs of the Appellants'

previous invasions of the Respondents' community as well

as destruction of the Respondents' properties contrary to

the clear provisions of our laws and the Constitution of the

Federal Republic of Nigeria. He also pointed out that the

Respondents were not guilty of any

22

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tardiness or indolence in seeking the order of injunction for

protection of their rights. They showed that if the acts of

the Appellants were not restrained, they will lead to total

breakdown of law and order in the Respondents'

community resulting in the loss of lives and damage to

properties of not just the Respondents but other innocent

members of the public living amongst them which said

losses cannot be repaired or adequately compensated

monetarily by the Appellants, particularly the possible

extinction of the Respondents' community or they being

placed in such a financial and physical situation wherein

they will not be able to prosecute their suit anymore. He

cited the cases of Veegee Nig. Ltd. vs. Contract

Overseas Ltd (1992) 9 NWLR Part 266 page 503 at

515; Okomu Oil Palm Co. page 387 paragraphs B-H

per Ogakwu JCA; The Registered Trustees of the

Apostolic Church vs. Olowoloni (1990) 6 NWLR Part

158 page 514 at 537 paragraphs D-H and 538

paragraphs C-D; Lagos State vs. Ojukwu (1989) NWLR

Part 18 page 621 at 638; Gambari vs. Bukola (2004) 1

NWLR Part 853 page 122; C.G.C Nig Ltd vs. Alhaji

Baba (2004) FWLR Part 196 page 962 at 777;

Oyeyemi vs. Irewole L.G.A

23

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CA)

(1993) 1 NWLR Part 270 page 462; Ngere & Anor vs.

Okuruket "XIV" & 3 Ors (2014) 5 SC Part 11 page 1 at

40; Imegwu vs. DPP & Ors (2013) 2-3 SC Part 1 page

72 at 99 and submitted that it is the law that when the

party sought to be restrained deliberately proceeds with

the action intended to be restrained by an order of

injunction after becoming aware of the pendency of an

application before a competent Court for his restraint, such

a party ought not to be allowed to profit from his

misconduct or total disrespect for the Court of law. He

stressed that interlocutory injunction is not only granted

against a threatened act but also against a repetition or

continuance of the acts complained of, and defacing of the

land, i.e. against acts amounting to change of user that may

give rise to irreparable loss that cannot be compensated by

way of damages. He argued that to allow the Appellants to

continue with their unlawful acts would amount to the

Court below setting a very dangerous precedent and it

would have amounted to an open invitation to anarchy and

chaos in the society. He stated that the Respondents'

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CA)

Counsel inadvertently added the word "Applicants" to land

in dispute and the Court consciously declined relief 2 upon

the said ground. The Court granted the 1stand 3rd reliefs,

that is to say, the injunction sought as regards the land in

dispute and not the "Applicants land in dispute as

inadvertently couched in the Motion and the grant of which

would have validated the Appellants' complaint that the

trial Court granted the Respondents their substantive relief

at the interlocutory stage. He then urged that this issue be

resolved in favour of the Respondents.

With regard to issue No. 2, the Respondents adopted their

arguments under their preliminary objection and issue No.

1 and submitted that the trial Court was right in dismissing

the Appellants' Motion. Her referenced the comments made

by the lower Court and stressed that the Appellants' Motion

was dismissed because it was a gross and palpable abuse of

Court process, lacking in merits, frivolous and vexatious.

He cited the decision in the cases of A.G. Federation vs.

A.G. Abia & 3 Ors (2001) 7 SC Part 1 at 112-113;

Ntuks & 9 Ors vs. Nigerian Ports Authority

25

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CA)

(2007) 5-6 SC 1; Ogoejeofo vs. Ogoejeofo (2006) 1 SC

Part 1 at 162/163 in support. He contended that it

behoves the Appellants to satisfy this Court that the trial

Court's findings are not correct or are erroneous but that

the Appellants had failed to do based on the averments in

paragraphs 3-46 of the Appellants' affidavit in support of

their Motion, paragraphs 5-55 of the Respondents' counter-

affidavit, Exhibit 7 attached to the Appellants' application

and Exhibits A-Y annexed to the Respondents' counter-

affidavit where the Appellants either admitted or not

denied the existence of those facts common to both parties.

It was further argued that injunctions do not lie to curtail

the enjoyment of a Respondent's legal right therefore the

grant of the Appellants' Motion would have amounted to

truncation of the Respondents' continued enjoyment of

their legal rights over the land in dispute when the

Appellants had not proved that the Respondents'

possession and acts of ownership over the disputed land as

depicted on their Survey Plan was wrongful. He touched on

other salient facts and then urged that the justice of the

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case demands that the Appellants' application be

dismissed.

Now dealing with issues arising herein, I would firstly

observe that the preliminary objection raised by the

Respondents regarding the failure on the part of the

Appellants to attach a copy of the leave obtained for filing

an interlocutory appeal to their Notice of Appeal is spurious

when viewed in the light of the provisions of Section

241(1)(ii) of the 1999 Constitution as amended which says

that an appeal shall lie from the decisions of the Federal

High Court or a High Court to the Court of Appeal as of

right where an injunction or the appointment of a receiver

is granted or refused. The appeal is against an injunction,

and it was not qualified i.e. limited in some way, either as a

final or an interlocutory order, in the Constitution. It is

pertinent to note that paragraph (a) of Section 241(1) of the

1999 Constitution as amended is clear on its stipulation by

emphasizing on the word "final". The word "final" explicitly

qualified the sort of decisions that would be appealed

against as of right by the people affected in any civil or

criminal proceedings before the

27

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Federal High Court or a High Court sitting at first instance.

The same Constitution did not deem it necessary to qualify

the word "decisions" stated in paragraph (f) (ii) of the same

Section 241(1) because that was not the intendment of the

law makers. It merely stated "decisions made or given by

the Federal High Court or a High Court-where an

injunction or the appointment of a Receiver is granted or

refused. It did not specify any type of decision granting an

injunction. It is simply stated a decision where an

injunction is granted or refused. Whether it is against a

decision granting a perpetual injunction or an interlocutory

injunction, the appeal will be as of right as stated in Section

241(1) of the 1999 Constitution. This is buttressed by the

judgment of this Court delivered on the 2nd February,

2018, in Appeal No. CA/PH/505/2016 - Between: CIVIL

SERVICE COMMISSION RIVERS STATE& 4 Ors and

DR (MRS.) JUSTINA JUMBO & Anor, where this Court

held thus: "Section 243(2) of the Constitution of the

Federal Republic of Nigeria 1999 (as amended)

provides that "an appeal should lie upon the decision

of the National Industrial Court as of right to

28

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the Court of appeal on question of fundamental rights

as contained in Chapter IV of the Constitution as it

relates to matters upon which the National Industrial

Court has jurisdiction". What is distinct in the above

provision is that the word "decision" was not

quantified as was the case in Section 241(1) (a) of the

same Constitution which says that "An appeal shall lie

from the decision of the National Industrial Court or

High Court to the Court of Appeal as of right in the

following cases - (a) final decisions in any civil or

criminal proceedings before the Federal High Court

or a High Court sitting at first instance. Further,

Section 241(1) of the 1998 Constitution also

stipulated that appeal shall be as of right" (d) in

decisions in any civil or Criminal proceedings on

question of law as to whether any of the provisions of

Chapter IV of this Constitution. The distinction in the

provisions of Section 241(1) (a) of the 1999

constitution is the word "...." which was used to

qualify the word "decision". Then in Section 241(d)

and 243(2) of the 1999 Constitution as amended, the

word "decision" or

29

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"decisions" used therein were not qualified or

circumscribed or confined to when it is a final one. By

the interpretation Section 318 of the 1999

Constitution as amended, the word "decision" "means

in relation to a Court, any determination of that Court

and includes judgment, decree, order, conviction,

sentence or recommendation. "The word is all

encompassing as its meaning includes "any

determination of the Court i.e. any official decision of

the Court, that is to say, be it final or interlocutory, so

long as it touches on questions of fundamental rights

as contained in Chapter IV of the Constitution, the

appeal therefrom shall be as of right irrespective of

whether it was properly raised or whether it will

succeed or not. The decision of this Court in Alhaji

Maro Saadu Oloje vs. Alhaji Wahab Alawo (2003)

LPELR-CA/IL/36/2001 clearly buttressed this view. It

was held therein, per Amaizu, J.C.A., relying on the

case of Stella Abisola Adelakun vs. Isaac Bamidele

Adelakun (1995) 7 NWLR Part 308 page 741 that an

appeal from an interlocutory decision of a High Court

on an issue relating to the grant or refusal of

injunction

30

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can be brought as of right without leave of either the

Court of Appeal or of the High Court by virtue of

Section 220(1) of the 1999 Constitution. It was held

that the ruling delivered by the lower Court therein

was covered by Section 241 and not Section 242 of

the 1999 Constitution. Consequently no leave is

required to bring the appeal."

The second and third grounds of the objection are also

unfounded as the ruling being appealed against is

contained at pages 1060-1067 of the record of appeal, 2nd

Volume. The Respondents' preliminary objection is

unsustainable and it is hereby overruled.

It is distinct in the record of this appeal that the prayers

granted by the lower Court in the Motion filed on the 13th

March, 2017 by the Respondents herein were prayers 1 and

3 of the Motion paper and they read:

"1. An Order of interlocutory injunction restraining

the Defendants/Respondents by themselves, their

servants, agents, thugs, hirelings or privies from

partitioning, selling, allotting, donating, granting,

leasing, putting building materials, digging, building

upon, putting building materials or any other

31

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CA)

structures or things upon, changing the character of,

or in any manner whatsoever dealing or further

dealing with the Applicants' land in dispute pending

the determination of the substantive suit.

(3). An Order of interlocutory injunction restraining

the Defendants/Respondents from harassing,

threatening or disturbing Applicants' use and

enjoyment of their land/disturbing or in any form or

manner whatsoever from impeding their passage

through or their lawful activities on the said land and

from further invading or attacking the Applicants'

Ikuru Town Community or destroying their properties

upon the said land or disturbing or disrupting the

lawful activities or businesses of the Applicants'

lessees, grantees, licensees or any person, body or

persons claiming through them pending the

determination of the substantive suit.

The Court below was specific in its consideration of the

reliefs sought by the parties in their respective

applications, that was why in its determination of prayer 2

sought by the Respondents, it remarked that relief 2 cannot

be granted at the interlocutory stage, and then refused it.

Relief 2 seeks for "An Order of

32

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CA)

interlocutory injunction restraining the

Defendants/Respondents from further challenging the

Applicants' ownership of or title to, asserting

ownership of, claiming, demanding or presenting

themselves to and third party as the persons entitled

to any payment, monetary or other interest in either

the whole or any part of the Applicants' land in

dispute and from receiving any such payment or

monetary or other compensation from the said party

for its acquisition, lease or rent of or other interest in

either the whole or any part of the Applicants' land in

dispute and from receiving any such payment or

monetary or other compensation therefore pending

determination of the substantive suit." It is clear in

relief 2, that the Respondents' prayer touched on the

substratum of the case, i.e. ownership of or title to,

asserting ownership of, etc. The Court considered relief 2

as being inimical to the case if granted at the interlocutory

stage and then refused it. The lower Court critically

analysed the facts deposed to by the parties before the

award it made at pages 1064-106. It held thus:

To properly appraise the grounds for the

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Application as earlier stated, it is necessary to

juxtapose them with the following deposition in the

affidavit in support. They are paragraphs 3, 32 and 37

thereof.

3. I know as a fact that the Defendants/Applicants are

indigence's (sic) of Asukama (Asukoyetile)

Community - an Indigenous/autonomous community

in Andoni Local Government Area of Rivers State,

Nigeria as Defendant and or Counter Claimants for

themselves and as representing all other members of

Asukama Community.

32. I know as a fact that Asukama and Asukoyet

Communities in Andoni Local Government Area of

Rivers State have lived in peace for decades with no

boundary or land dispute for obvious reasons:

(a) Both communities are contiguous and/or bounded

with natural boundary and/or that both communities

are contiguous with immemorial and ancient

boundary marks.

(i) From water front, the two communities are clearly

separated by inlet or a narrow creek called Okolo

Edekija.

(ii) On land and by a big iron tree called "Ako" to the

Atlantic Ocean.

37. I know as a fact that Ikuru Town on the other

hand is situate East by Okoroboile, North by Okwanja,

34

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CA)

West by Asukoyet and South by the Atlantic ocean

and has no boundary with Asukama whatsoever..."

A through perusal and proper appraisal of the

grounds for the Defendants/Applicants' Application

and the Paragraphs of the affidavit above cited show

that they are clearly in conflict. One talks about

determination of the boundary between Claimant

Ikuru Town and Defendants Asukama Community and

Claimant Ikuru Town, the said Asukoyet has been

described as a neighbouring community which said

community is not a party in this case. Yet again

Defendants/Applicants says its Asukama has no

boundary whatsoever with Ikuru Town and yet

concludes in ground 4 that the determination of

boundary between Asukoyet and Ikuru Town would

determine who owns what.

Whereas the Claimants/Applicants in the process

before this Court has clearly defined the place of land

for which it seeks an interlocutory injunction against

the Defendants as IJONG IKWUT situate at Ikuru

Town verged RED in the Claimants survey plan No.

KES/RV/2017/001-LD prepared by surveyor S.E.G.

Kalio, B.Tech. MNIS on 20th day of January 2017, the

Defendants/ Applicants has not made any effort

35

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to describe the area for which it wants interlocutory

injunction against the Claimants.

Again, the clear deposition in paragraph 56-59 of the

Claimants/ Applicants as to the various acts of

lawlessness and brigandage against them by the

Defendants and the invasion of Ikuru Town with the

resulting destruction of their houses and graves of

their long buried members with date of the various

incidents which further incidents they seek to prevent

by interlocutory injunction were neither denied,

challenged nor controverted.

It is deemed that those clear depositions which were

not denied or challenged by the Defendants in their

counter affidavit in opposition to the Claimants'

motion for interlocutory injunction filed the 13th day

of March, 2017 are admitted.

See Section 123 of the Evidence Act, 2011. See also

the case of Agbakoba vs. INEC & 2 Ors (2008) 12 SC

Part 111 page 171.

In land matters, every application to restrain a party

from doing any damage or further damage to the res

must necessarily arise from the subject matter of the

substantive suit, the relief sought in the substantive

suit are not the same as the ones that seeks to

36

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CA)

protect the Claimants from harassment, from

destruction of their houses, from invading of Ikuru

Town to disrupt their lawful activities or businesses,

granting such do not amount to granting Claimants

reliefs in the substantive suit.

The relief sought in paragraph 2 of the Claimants'

motion are such that award of damages cannot

suffice.

It must be noted that the respective motion of the two

parties were consolidated and argued together.

While the Defendants/Applicants in their motion are

not clear as to what they want from this Court due to

the conflict between the grounds for their Application

and the affidavit in support on one hand, such as

submitting for determination the boundary between

the Claimants Ikuru Town and Asuk Ama Community

of the Defendant and in paragraph 37 of the affidavit

says that Ikuru Town and Asuk Ama have no boundary

whatsoever and yet again introducing a 3rd party not

a party to the suit by saying, "the determination of

the boundary between Asuokonyet and Ikuru Town

would determine who owns and how.

The land for which the Defendants/ Applicants are

seeking an interlocutory injunction is neither

37

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described by name nor by survey plan or even by

location description.

The Application brought by the Defendant/Applicants

is therefore well founded, it is accordingly dismissed.

On the o ther hand re l i e f s sought by the

Claimants/Applicants are clear and unambiguous, the

supporting affidavit is clear on the reliefs sought.

I therefore, on relief 1, make an order of interlocutory

injunction restraining the Defendants/Respondents by

themselves, their servants, agents, hirelings or privies

from partitioning, allocating, donating, granting,

leasing selling, alienating, clearing, digging, building

upon, changing the character of or in any manner

whatsoever dealing or further dealing with the land in

dispute pending the determination of the substantive

suit.

Relief 2 cannot be granted at this interlocutory stage,

it is therefore refused.

Relief 3 being the purpose of paragraphs, 56, 57, 58

and 59 of the affidavit in support of the Claimants'

motion which depositions were not challenged or

denied is granted as prayed.

No order as to cost."

It is the law that interlocutory injunction is to mitigate the

38

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suffering of the party applying for it so that he will not be

in unnecessary hardship during the pendency of the

substantive suit. It is always good to prevent injustice that

most invariably could not be cured properly at the end of

the substantive case if it was not granted, per Belgore,

J.S.C., (as he then was) in Military Administrator, F.H.A

vs. Aro (1991) 1 NWLR Part 168 page 405. Factors that

guide the Court in granting an application for interlocutory

injunction had been severally set out by the Supreme Court

in innumerable cases. "Interlocutory injunction is

procedurally between interim injunction and

perpetual injunction. It is an injunction granted by

the Court pending the determination of the case. The

locus classicus is Kotoye vs. Central Bank of Nigeria

(1989) 1 NWLR (Pt. 98) 419, a decision of this Court.

In that case, this Court held as follows: (a) that the

Applicant must show that there is a serious question

to be tried, i.e. that the applicant has a real

possibility, not a probability of success at the trial,

notwithstanding the Defendant's technical defence (if

any). (Obeya Memorial Specialist Hospital vs. A-G

Federation (1987) 3 NWLR (Pt. 60) 325 followed.)

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(b) That the Applicant must show that the balance of

convenience is on his side; that is, that more justice

will result in granting the application than in refusing

it. Missini vs. Balogun (1968) 1 All NLR 318 referred

to; (c) That the Applicant must show that damages

cannot be an adequate compensation for his damage

or injury, if he succeeds at the end of the day. (d)

That the Applicant must show that his conduct is not

reprehensible for example that he is not guilty of any

delay. (e) No order for an interlocutory injunction

should be made on notice unless the applicant gives a

satisfactory undertaking as to damages save in

recognized exceptions. (f) Where a Court of first

instance fails to extract an undertaking as to

damages, an appellate Court ought normally to

discharge the order of injunction on appeal." See also

Globe Fishing Ind. Ltd. vs. Coker (1990) 7 NWLR (pt.

162) 265; Akibu vs. Oduntan (1991) 2 NWLR (Pt. 171)

1; Sotuminu vs. Ocean Steamship (Nig). Ltd. (1992) 5

NWLR (Pt. 239) 1; Ogbonnaya vs. Adapalm (Nig) Ltd.

(1993) 5 NWLR (Pt. 292) 147 and 7-Up Bottling Co.

Ltd. vs. Abiola and Sons (Nig) Ltd. (1995) 3 NWLR

(Pt. 383)

40

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CA)

257. "Per Tobi, JSC (Pp. 25-26, paras. E-F). In fact in

Saraki vs. Kotoye (supra) the Supreme Court, per

Nneamaka-Agu, J.S.C., stated that "As for the materials

upon which the Court based its decision, I believe it was a

misapprehension to suggest, as did the Court of

Appeal, that in an application for interlocutory

injunction, the Court must confine its consideration

to affidavit evidence. It appears to me, for an

example, that on such important decisions as to

whether or not there is an important issue to be tried,

the Court will be entitled, in fact obliged, to look at

the substance of the claim before the Court as

amplified in the pleadings. The Court will take them

into account without necessarily deciding whether or

not the averments therein have been proved. And

once it is satisfied that there is at least an important

issue to be tried, it should proceed to consider the

balance of convenience of the parties. I must here

emphasize that the old principle whereby Courts

required an Applicant for an order of interlocutory

injunction to first show a strong prima facie case

before it could be entitled to the order is no longer

the law since the decision of the House of Lords in

41

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8) LP

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CA)

American Cyanamid Company vs. Ethicon Ltd. (1975)

A.C. 396. That decision has been cited with approval

in many decisions of this Court. See for an example,

Obeya Memorial Specialist Hospital vs. Attorney-

General of the Federation.

The lower Court considered both the affidavit evidence of

the parties and the nature of the claims before it and came

to the conclusion that reliefs 1 and 3 sought by the

Respondents could be granted which we have no reason

whatsoever to disagree with. An order of interlocutory

injunction is granted with the main aim of maintaining the

status quo pending the determination of the issues

submitted for adjudication before the Court. We find no

reason to disrupt the orders made by the lower Court, and

therefore, the issues herein in favour of the Respondents.

There is no merit in this appeal and the same is hereby

dismissed with no order as to costs.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had

the advantage of reading the leading judgment of my

learned brother Abadua JCA. I agree that this

42

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CA)

appeal lacks merit and ought to be dismissed. It is hereby

dismissed by me too. I also make no order for costs

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I read the

draft copy of the lead judgment just delivered by my

learned brother, Theresa Ngolika Orji-Abadua JCA. I agree

with the reasoning and conclusion reached that the appeal

is unmeritorious and is dismissed. I abide by the

consequential orders regarding costs as made in the lead

judgment.

43

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Appearances:

Isah Seidu, Esq. with him, A. Owhor-Chuku ForAppellant(s)

Chief M. B. R. Urombo, JP with him, M. N. Alwelland A. J. Ejaete For Respondent(s)

(201

8) LP

ELR-45

946(

CA)