LEADMAC PROPERTY & DEVELOPMENT LTD &ANOR v. CHEVRON (NIG) CLOSE PFA LTD

CITATION: (2016) LPELR-41408(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON WEDNESDAY, 14TH DECEMBER, 2016Suit No: CA/L/505/2012

Before Their Lordships:

MOHAMMED LAWAL GARBA Justice, Court of AppealJOSEPH SHAGBAOR IKYEGH Justice, Court of AppealTIJJANI ABUBAKAR Justice, Court of Appeal

Between1. LEADMAC PROPERTY & DEVELOPMENT LTD2. LBTC PROPERTY DEV. & INVESTMENT LTD - Appellant(s)

AndCHEVRON NIGERIA CLOSE PFA LIMITED - Respondent(s)

RATIO DECIDENDI

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1. APPEAL - GROUND(S) OF APPEAL: Effect of a ground of appeal which doesnot give sufficient notice of the precise nature of the complaints of theappellant against the judgment appealed from"In the case of Alade V. Ogundokun (1992) 5 NWLR (239) 42 @ 52, it was heldthat the framing of a ground of appeal by mere quotation or repetition of apassage of the judgment of a Lower Court does not comply with theseprovisions of the Court Rules, which are impair materia, with Rules of Court atthe time. See also Anyaodike V. Adi (1986) 3 NWLR (1931) 731; Amadjwogu V.Onouaku (1988) 2 NWLR (78) 614. The simple reason for the position of the lawis that repetition or quotation of a passage of the decision of a Lower Courtappealed against, does not specifically and concisely state the nature of amisdirection or error of law as a complaint against the decision, but is merelynarrative of the inference or finding by the lower Court. Quoting or repeating apassage from the judgment/Ruling of lower Court as a ground of appeal wouldmake it in general terms and even vague for the purpose of a specificcomplaint of misdirection or error against the decision. U.B.A. Plc. V. ModeNigeria Limited (2002) FWLR (112) 147. The above position of the law as it maybe, I am inclined to apply the position of the law that the primary essence of aground of an appeal is to give to a Respondent adequate notice of the nature ofwhat the complaint is against the decision of a lower Court so as to enable himknow and sufficiently prepare for the case he would meet at the appeal. ThorLtd. vs. First City Bank (1997) 1 NWLR (479) 35; Aderounmu V. Olowu (2000) 4NWLR (652) 253; Iwuola V. NIPOST (2003) 8 NWLR (822) 308; Osasanya V.Ajayi; (2004) 5 SC (Pt.1) 88."Per GARBA, J.C.A. (Pp. 5-6, Paras. A-C) - read in context

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2. EQUITABLE REMEDY - INJUNCTION: Meaning and types of injuction"I should start a resolution of the issue by restating the law that an injunction,generally, is an equitable order or relief made with the primary object ofkeeping the subject of a dispute in a case before a Court, in status quo, pendingthe final determination of the dispute by the Court. Depending on the facts andcircumstances in a particular case, there are different types of injunctive ordersthat may be made in the course of the proceedings of a case. They include:-(a) Interim injunction which is a temporary restraining order to remain in forceuntil a named date indicated in the order to enable a party take necessaryprocedural steps in respect of the substantive matter before a Court, in realsituation of urgency; Olowu V. Building Stock Limited (2004) 4 NWLR (864)445,; A.G. Federation V. Fafunwa Onikoyi (2006) 18 NWLR (1010)(b) Interlocutory injunction which is granted as a restraining order pending thedetermination of disputes between the parties, buy the Court. See Kotoye V.CBN (1989) 1 NWLR (98) 419; Buhari V. Obasanjo (2002) 17 NWLR (850) 587.(c) Mandatory injunction which is positive in nature and usually targeted atcompleted act, granted in exceptional circumstances. See NDIC vs. S.B.N.Limited (2003) 1 NWLR (801) 371; Modile vs. Governor of Lagos State (2004) 12NWLR (887) 354.(d) Mareva injunction: which is an anticipatory equitable relief which may begranted where it appears likely that a plaintiff may obtain judgment and thereare reasons showing that the defendant might deal with his assets within thejurisdiction of the Court in such a way as to frustrate satisfaction of thejudgment. See Sotuminu V. Ocean Steamship Nigeria Limited (1992) 5 NWLR(239) 1; A.I.C. Limited V. NNPC (2005) 11 NWLR (937) 563."

Per GARBA, J.C.A. (Pp. 10-12, Paras. F-C) - read in context

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3. EQUITABLE REMEDY - INTERLOCUTORY INJUNCTION: Guiding principles forthe grant of interlocutory injunction"Since the appeal deals with interlocutory injunction, the law is settled thatbeing an equitable remedy, the power by the Court to grant it, is purelydiscretionary, which like all or every type of judicial discretion, is required bylaw, to be exercised judicially and judiciously. Ayoola V. Baruwa (1999) 11NWLR (625); Ojukwu V. Governor Lagos State (1986) 3 NWLR (26) 39. Inaddition, an applicant for interlocutory injunction bears the burden of satisfyingthe established requirements for the grant of the order by a Court, which are: -(i) That he has recognizable legal right to be protected in the substantivecase.Ayorinde vs. A.G. Oyo State (supra); ACB Limited V. Awogboro (1996) 3NWLR (437) 383;(ii) That there are serious issues to be decided in substantive. Okomo V.Umoetuk (2004) 10 NWLR (882) 526. Kotoye V. CBN (supra);(iii) That damages would not be adequate compensation for the injury to resultif the order was not granted. Orji vs. Zaria Ind. Limited (supra), UnionBeverages Limited V. Pepsicola Ind. (1994) 3 NWLR (350) 1;(iv) That balance of convenience is on his side. Buhari vs. Obasanjo (supra);(v) That his conduct is not reprehensible. Peter vs. Okoye (2002) 3 NWLR (755);(vi) That the order is necessary to preserve the subject of dispute in thesubstantive case, which is in imminent danger of being destroyed.A.G. AnambraState V. Okafor (1992) 2 NWLR (224) 396- Queen V. Adorah (supra);(vii) Must give a satisfactory undertaking as to damages. Kotoye vs. CBN(supra). Leasing Co. Limited V. Tiger Ind. Limited (supra).?Until the applicant satisfied a Court that, by the facts presented in support ofthe application, the above requirements/factors are met, an application forinterlocutory injunction would not be granted. The basis of the grant or refusalof the application is therefore predicated on the facts deposed to and presentedbefore the Court in the affidavit/s in support of the application which the Courtwould judicially and judiciously consider, evaluate and assess, taking intoaccount the peculiar circumstances disclosed therein. The application being onedetermined usually and ordinarily, on the basis of affidavit evidence deposed toby the parties thereto and presented in support or opposition, as the case maybe, the primary duty of the Court in the determination of the application, is tolook at and consider such facts as are relevant and material to the prayer/ssought by the application. Adeniji V. Tina George Ind. Ltd. (1998) 6 NWLR (554)483; Leasing Co. Ltd. However, in the performance or discharge of that primaryduty, the law is settled that even though the facts in support of the applicationmay be similar or the same as some or all of the facts giving rise to thesubstantive action/case as contained in the pleadings of the parties, difficult asit may be, a Court is not expected to make pronouncement/s which would tendto determine the live issues raised in the substantive case/action. Falomo V.Bamigbe (supra); Orji V. Zaria Ind. Limited (supra)."Per GARBA, J.C.A. (Pp. 12-15, Paras. D-A) - read in context

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4. EQUITABLE REMEDY - INJUNCTION: Whether the court ought to consider thebalance of convenience in granting or refusing an injunction"In the case of Udeze V. Orajulike Trad. Co. Ltd.(2000) 3 NWLR (648) 203 @217. It was held that: -"Balance of convenience is the touchstone of whether the discretion to grant aninterlocutory injunction should be exercised in favour of the party asking for ithaving regard to the comparative deserts of the parties in relation to thesubject matter. The exercise implies weighing from the evidence before theCourt, the degree of hardship or in convenience which each party is likely tosuffer according to whether the order is granted or refused."?Again, in further elucidation of what is material in the determination of thebalance of convenience in applications for interlocutory injunction, this Court inthe case of Kpogban V.Ojirigho (2000) 1 NWLR (640) 212 @ 219, had stated that:- "The first questionis, if without the injunction and the plaintiff/Respondents eventually succeed inthe substantive claim, whether the injuries which they would have sufferedfrom the defendants/applicants would be such for which they cannot beadequately compensated from costs recoverable in the action. If the damagesare such for which they could be adequately rewarded from costs recoverablein the action, no interlocutory injunction should be granted no matter howstrong the plaintiffs' case may appear to be at that stage. If damagesrecoverable in the action would not be adequate compensation, then the Courtwould, on the order hand consider if, the injunction is refused and thedefendants were to succeed in the substantive claim, whetherdefendants/appellants could be adequately compensated under the plaintiffs"undertaking as to damages for the injuries they would have suffered as a resultof the injunction. If damages recoverable under the plaintiffs' undertaking as todamages would be adequate compensation then the injunction could begranted."Per GARBA, J.C.A. (Pp. 15-16, Paras. C-F) - read in context

5. EQUITABLE REMEDY - INJUNCTION: Duty of court when an application forinjunction is before it"Although, the absence of an undertaking as to damages may or will notwarrant the setting aside of an order for injunction when or where made, it willmilitate against the grant for want of commitment by the Applicant. Onyesoh V.Nnebedum (1992) 3 NWLR (229) 315; Afro-Continental Nig. Ltd. V. Ayantuyi(1995) 9 NWLR (420) 411. Extraction of a positive undertaking for damagesfrom an applicant for interlocutory injunction is a judicious and judicial duty bythe Court in the determination of whether it is equitable to grant an order ofinjunction against a party to the case pending a final decision of the disputebetween the parties."Per GARBA, J.C.A. (Pp. 24-25, Paras. D-A) - read in context

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6. EQUITABLE REMEDY - INTERLOCUTORY INJUNCTION: Essence of aninterlocutory injunction"The law is generally settled that an order for interlocutory injunction is not aremedy for an act that has been completed before the order because, as statedearlier, its primary purpose is to restrain a party from acts likely to destroy orfundamentally and radically affect the subject matter of litigation, pending thefinal determination by the Court. See Comm. for Works, Benue State (Supra);Ayorinde V. A.G., Oyo State (1996) 3 NWLR (434) 20; Lafferi Nig. Ltd V. NalMerchant Bank, Plc (2002) 1 NWLR (748) 333; Ideozu V. Ochoma (2006) 4NWLR 364."Per GARBA, J.C.A. (P. 27, Paras. A-D) - read in context

7. EQUITABLE REMEDY - INTERLOCUTORY INJUNCTION: Whether aninterlocutory injunction can be granted against completed act(s)"I agree that the appeal lacks merit as the act sought to be restrained had beencompleted vide John Holt Nigeria Ltd. and Anor. v. Holts African Workers Unionof Nigeria and Cameroons (1963) A.N.L.R. 395 at 390 thus -" ... and interlocutory injunction was no more a remedy for an act that isalready completed."Per IKYEGH, J.C.A. (P. 34, Paras. E-F) - read in context

8. EQUITABLE REMEDY - INTERLOCUTORY INJUNCTION: Whether aninterlocutory injunction can be granted against completed act(s)"In queuing behind my learned brother, let me also state that, an interlocutoryinjunction is granted with the object of keeping matters in status-quo betweenthe litigating parties, until the matters are heard and determined.See:AMERICAN CYANAMID CO. VS ETHICON LTD (1975) A. C. 396; In the instantappeal an interlocutory injunction is not available as remedy for an act that isalready completed. See: JOHN HOLT NIG LIMITED & 1 OTHER VS. HOLTSAFRICAN WORKERS UNION OF NIGERIA & CAMEROONS 2 SC NLR 383."PerABUBAKAR, J.C.A. (P. 35, Paras. C-E) - read in context

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MOHAMMED LAWAL GARBA, J.C.A. (Delivering theLeading Judgment): This appeal is against the dismissalof the Appellant's motion dated 13th of March 2012 forinterlocutory injunction against the Respondent pendingthe determination of the Suit No. LD/2027/2011. TheAppellants had instituted the Suit against the Respondentvide a writ of summons taken out of the Registry of theLagos State High Court on the 11th day of November, 2011with claims as follows:-

"1. A declaration that the contract for the sale of landident i f ied and del ineated as C1-B, C1-C,(COMMERCIAL PLOTS) AND R2-B (RESIDENTIALPLOTS) as contained in the initial offer of 27th July,2010 is still subsisting.2. An order of Specific performance of the terms ofcontract for the sale of land identified and delineatedas C1-B, C1-C (COMMERCIAL PLOTS) AND R2(RESIDENTIAL PLOTS) in the Twin Lakes estateMaster Plan.3. An order of perpetual injunction restraining theDefendants either by itself, its privies, agents or anyrepresentative from reselling and/or reassigning theland identified and delineated as C1-B, C1-C(COMMERCIAL PLOTS) AND R2-B

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(RESIDENTIAL PLOTS) to another party."

The reliefs sought by the Appellants in the aforenamedmotion were:-

"1. AN ORDER of Interlocutory Injunction restrainingthe Defendants whether by Themselves, privies,agents or any representative howsoever fromreselling, offering to sell or otherwise dealing withthe land identified and delineated as C1-B, C1-C(Commercial plots) and R2-B (Residential Plots)situate at Twin Lakes Estate, Lekki Peninsula, Lekki,Lagos in a manner inconsistent with the interest ofthe claimants in the said plots of land pending thedetermination of this suit.2. AN ORDER directing the Defendants/Respondentsto restore the original beacons on the allotted plotsand clearly delineated same accordingly pending thedetermination of this suit.3. AN ORDER of interlocutory injunction pending thedetermination of this suit, restraining the Defendantswhether by themselves, privies, officers, agents orhowsoever from altering the layout survey plan of theEstate or otherwise carrying out any re-delineationthereon in such a manner inconsistent with theoriginal identification and determination of the plotsof land

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allocated to the Claimants prior to the institution of

this suit.

4. AN ORDER granting the Claimants/Applicants leave

to post a sign on the plots of land the subject matter

in this suit.

5. AND For such orders as this Honourable Court may

deem fit to make in the circumstances of this case.”

The Respondent opposed the motion and after hearinglearned counsel for the parties and consideration of theaffidavit evidence before it, the High Court refused anddismissed the motion on the 8th day of May, 2012.

There are three (3) grounds of dissatisfaction with thedismissal of the motion contained on the Appellants' Noticeof Appeal dated the 21st but filed on the 22nd of May,2012.

In the Appellants' brief, settled by Mr. Kemi Pinheiro, SAN,filed on the 3rd of January, 2013 two (2) issues weredistilled for decision in the appeal as follows:-

"(1) Whether the Court below came to a right finding inconcluding that balance of convenience was not in favour ofthe Appellants?(Grounds 1 & 2).

(2) Whether the Court below was right in its finding thatthe act sought to be restrained had been

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completed? (Ground 3)”

Tope Solola Esq., settled the Respondent's brief filed on the25th of November, 2013, deemed on the 30th ofSeptember, 2016, in which he also submitted two (2) issuesfor determination in the appeal in the following terms: -

"3.1 Whether, from the facts and circumstances ofthis case, the lower Court was not right when it heldthat balance of convenience was in favour of theRespondent?3.2 From the affidavit evidence and exhibits placebefore the lower Court, whether the lower Court wasnot right to have exercised its discretion to refuse theapplication for interlocutory injunction?"

I have observed that the three (3) grounds contained on theAppellants' Notice of Appeal were quotations or extracts ofpassages from the Ruling by the High Court dismissing theAppellants' motion.

The provisions of Order 6, Rule 2 (2) and (3) of the Court ofAppeal Rule, 2011, provide that: -

“(2) Where a ground of appeal alleges misdirection orerror in law, the particulars and nature of themisdirection or error shall be clearly stated.(3) The notice of appeal shall set forth concisely and

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under distinct heads, the grounds upon which the

Appellant intend to rely at the hearing of the appeal

without argument or narrative and shall be numbered

conseqsutively.”

In the case of Alade V. Ogundokun (1992) 5 NWLR

(239) 42 @ 52, it was held that the framing of a ground of

appeal by mere quotation or repetition of a passage of the

judgment of a Lower Court does not comply with these

provisions of the Court Rules, which are impair materia,

with Rules of Court at the time. See also Anyaodike V. Adi

(1986) 3 NWLR (1931) 731; Amadjwogu V. Onouaku

(1988) 2 NWLR (78) 614. The simple reason for the

position of the law is that repetition or quotation of a

passage of the decision of a Lower Court appealed against,

does not specifically and concisely state the nature of a

misdirection or error of law as a complaint against the

decision, but is merely narrative of the inference or finding

by the lower Court. Quoting or repeating a passage from

the judgment/Ruling of lower Court as a ground of appeal

would make it in general terms and even vague for the

purpose of a specific complaint of misdirection or error

against the decision. U.B.A. Plc. V. Mode

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Nigeria Limited (2002) FWLR (112) 147.The above position of the law as it may be, I am inclined toapply the position of the law that the primary essence of aground of an appeal is to give to a Respondent adequatenotice of the nature of what the complaint is against thedecision of a lower Court so as to enable him know andsufficiently prepare for the case he would meet at theappeal. Thor Ltd. vs. First City Bank (1997) 1 NWLR(479) 35; Aderounmu V. Olowu (2000) 4 NWLR (652)253; Iwuola V. NIPOST (2003) 8 NWLR (822) 308;Osasanya V. Ajayi; (2004) 5 SC (Pt.1) 88.

Since the grounds of the appeal, as culled from thepassages of the Ruling by the High Court have apparentlygiven sufficient notice of what the complaints are againstthe Ruling to the Respondent to enable it to prepare andhas adequately prepared to meet them at the appealwithout any complaint, I overlook the non compliance withthe Rules of the Court as to the form in which were framed.

Now back to the issues formulated for decision in theparties' briefs. For representing the precise complaintsagainst the Ruling by the High Court, I intend to use theAppellants' issues

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in the determination of the appeal. In substance, the

Respondent's issues are not different from the Appellant's

issues and so they have been adequately argued by the

Respondent.

ISSUE 1: APPELLANTS SUBMISSIONS:

The submissions are to the effect that the High Court erredin coming to the conclusion that more harm would be doneto the Respondent after a finding that there were seriousissues to be determined at the trial of the Appellants'case. That the High Court has delved in to the seriousissues to be tried in the consideration and resolution of thequestion of balance of convenience against the Appellantswhich was wrong in law. Inter alia, Egbe vs. Onogun(1972) 1 NWLR (Pt.1) 95 at 99 and Ojukwu V.Governor of Lagos State (1986) 3 NWLR (26) 39 @ 45,were cited and pages 4-5 of the Ruling, page 293 – 294 ofthe Record of Appeal, were referred to on the submission.It was argued that the balance of convenience inapplications for injunction is considered, on the Abdullahvs Military Governor of Lagos State (1989) 1 NWLR(97) 356 and ALB V. Anogboro (1991) 2 NWLR (176)711, by weighing the Applicant’s need for protectionagainst the corresponding need of the Respondent to beprotected

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against injury that may result from the grant of the

application.

According to the learned Silk, the facts to be considered in

the determination of the balance of convenience cannot be

the same facts which go to the substantive case to be

decided as triable issues. In further argument, it was said

that there was no evidence before the High Court to

support the finding that:-

(a)Appellants admitted that the Respondent had consideredand evaluated bids from third parties in respect of the plotsallocated to them.(b)That in the event of the Appellants succeeding in theirclaims, there are other plots of land available for allocationto them, in the Estate.(c) That the Appellants no longer desire the plots of land inview of the proposed cannal by the planning authorities.

It was contended that the High Court took into accountirrelevant factors/issues in the determination of theconvenience and that the findings above are perverse forthe Court to intervene. Irolo V. Uka (2002) 14 NWLR(786) 195 and Ojoleye V. Registered T.O.I.M.C. &S.C.N. (2008) 15 NWLR (1111) 443 @ 534, amongother cases, were cited for the

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submission and the Court is urged to resolve the issue in

favour of the Appellants.

RESPONDENT'S SUBMISSIONS:

After restatements of the law on the discretionary nature of

the Court's power to grant applications, such as the

Appellants' and the requirements to be met for the grant,

citing judicial authorities, it was submitted for the

Respondent that the High Court had rightly exercised its

discretion and correctly relied on the facts presented

before it by the parties as well as the circumstances of the

application. That the decision /findings by the High Court

was/were not perverse but supported by the evidence of the

facts deposed in the parties' affidavits and that it did not

delve into the issues to be tried in the substantive case. It

was argued that all that the High Court did was to review

the facts as set out in the affidavits to decide the balance of

convenience in line with authorities such as Obeya

Memorial Specialist Hospital V. A.G. Federation

(1987) 3 NWLR (2000) 325 and Colifo Nigeria Limited

V. Daibu (2010) 2 NWLR (1178) 213. The case of

Nwoga V. Benjamin (2009) 5 NWLR (1133) 152 is said

to be distinguishable from the case

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before the High Court while Awuse V. Odili (2005) 16

NWLR (952) 416 and Nnajifor V. Ukomu (1985) 2

NWLR (9) 686, are said not to be applicable to the

Appellants' case. Page 5 of the High Court Ruling which is

at page 294-5, lines 36-1 was referred to where the High

Court alluded to the law that it was not expected to resolve

issues in the substantive case in the determination of the

application before it. Other cases on the law were cited by

learned counsel who further argued that even if the High

Court delved in to the issues in the substantive case in the

determination of the balance of convenience, its decision

thereon is not incompetent, relying on Nigeria Gas

Company Limited V. Onwubuya (1998) 10 NWLR

(569) 322. He also cited the case of Orji V. Zaria

Industries Limited (1992) 1 NWLR (276) 124 on the

law that there cannot be exactness in the determination of

competing rights between parties in an application for

interlocutory injunction and that all the facts presented

before the Court are to be considered. The Court is urged

to resolve the issue in Respondent's favour.

I should start a resolution of the issue by restating the lawthat an

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injunction, generally, is an equitable order or relief madewith the primary object of keeping the subject of a disputein a case before a Court, in status quo, pending the finaldetermination of the dispute by the Court. Depending onthe facts and circumstances in a particular case, there aredifferent types of injunctive orders that may be made in thecourse of the proceedings of a case. They include:-

(a) Interim injunction which is a temporary restrainingorder to remain in force until a named date indicated in theorder to enable a party take necessary procedural steps inrespect of the substantive matter before a Court, in realsituation of urgency; Olowu V. Building Stock Limited(2004) 4 NWLR (864) 445,; A.G. Federation V.Fafunwa Onikoyi (2006) 18 NWLR (1010).

(b) Interlocutory injunction which is granted as arestraining order pending the determination of disputesbetween the parties, buy the Court. See Kotoye V. CBN(1989) 1 NWLR (98) 419; Buhari V. Obasanjo (2002)17 NWLR (850) 587.

(c) Mandatory injunction which is positive in nature andusually targeted at completed act, granted in exceptionalcircumstances. See NDIC vs.

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S.B.N. Limited (2003) 1 NWLR (801) 371; Modile vs.

Governor of Lagos State (2004) 12 NWLR (887) 354.

(d) Mareva injunction: which is an anticipatory equitable

relief which may be granted where it appears likely that a

plaintiff may obtain judgment and there are reasons

showing that the defendant might deal with his assets

within the jurisdiction of the Court in such a way as to

frustrate satisfaction of the judgment. See Sotuminu V.

Ocean Steamship Nigeria Limited (1992) 5 NWLR

(239) 1; A.I.C. Limited V. NNPC (2005) 11 NWLR

(937) 563.

Since the appeal deals with interlocutory injunction, thelaw is settled that being an equitable remedy, the power bythe Court to grant it, is purely discretionary, which like allor every type of judicial discretion, is required by law, to beexercised judicially and judiciously. Ayoola V. Baruwa(1999) 11 NWLR (625); Ojukwu V. Governor LagosState (1986) 3 NWLR (26) 39. In addition, an applicantfor interlocutory injunction bears the burden of satisfyingthe established requirements for the grant of the order by aCourt, which are: -

(i) That he has recognizable legal right to be protected inthe

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substantive case.Ayorinde vs. A.G. Oyo State (supra);

ACB Limited V. Awogboro (1996) 3 NWLR (437) 383;

(ii) That there are serious issues to be decided insubstantive. Okomo V. Umoetuk (2004) 10 NWLR (882)526. Kotoye V. CBN (supra);

(iii) That damages would not be adequate compensation forthe injury to result if the order was not granted. Orji vs.Zaria Ind. Limited (supra), Union Beverages LimitedV. Pepsicola Ind. (1994) 3 NWLR (350) 1;

(iv) That balance of convenience is on his side. Buhari vs.Obasanjo (supra);

(v) That his conduct is not reprehensible. Peter vs. Okoye(2002) 3 NWLR (755);

(vi) That the order is necessary to preserve the subject ofdispute in the substantive case, which is in imminentdanger of being destroyed.A.G. Anambra State V. Okafor(1992) 2 NWLR (224) 396- Queen V. Adorah (supra);

(vii) Must give a satisfactory undertaking as to damages.Kotoye vs. CBN (supra). Leasing Co. Limited V. TigerInd. Limited (supra).

Until the applicant satisfied a Court that, by the factspresented in support of the application, the aboverequirements/factors are met, an application for

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interlocutory injunction would not be granted. The basis of

the grant or refusal of the application is therefore

predicated on the facts deposed to and presented before

the Court in the affidavit/s in support of the application

which the Court would judicially and judiciously consider,

evaluate and assess, taking into account the peculiar

circumstances disclosed therein. The application being one

determined usually and ordinarily, on the basis of affidavit

evidence deposed to by the parties thereto and presented

in support or opposition, as the case may be, the primary

duty of the Court in the determination of the application, is

to look at and consider such facts as are relevant and

material to the prayer/s sought by the application. Adeniji

V. Tina George Ind. Ltd. (1998) 6 NWLR (554) 483;

Leasing Co. Ltd. However, in the performance or

discharge of that primary duty, the law is settled that even

though the facts in support of the application may be

similar or the same as some or all of the facts giving rise to

the substantive action/case as contained in the pleadings of

the parties, difficult as it may be, a Court is not expected to

make

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pronouncement/s which would tend to determine the live

issues raised in the substantive case/action. Falomo V.

Bamigbe (supra); Orji V. Zaria Ind. Limited (supra).

The points of complaint by the Appellants under the issueare two (2), i.e. that the High Court delved into the issuesin the substantive case/action and that it took into accountirrelevant matters in the decision on the balance ofconvenience. In the case of Udeze V. Orajulike Trad. Co.Ltd.(2000) 3 NWLR (648) 203 @ 217. It was held that: -

"Balance of convenience is the touchstone of whetherthe discretion to grant an interlocutory injunctionshould be exercised in favour of the party asking for ithaving regard to the comparative deserts of theparties in relation to the subject matter. The exerciseimplies weighing from the evidence before the Court,the degree of hardship or in convenience which eachparty is likely to suffer according to whether theorder is granted or refused.”Again, in further elucidation of what is material in thedetermination of the balance of convenience in applicationsfor interlocutory injunction, this Court in the case ofKpogban V.

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Ojirigho (2000) 1 NWLR (640) 212 @ 219, had stated

that:-

"The first question is, if without the injunction and

the plaintiff/Respondents eventually succeed in the

substantive claim, whether the injuries which they

would have suffered from the defendants/applicants

would be such for which they cannot be adequately

compensated from costs recoverable in the action. If

the damages are such for which they could be

adequately rewarded from costs recoverable in the

action, no interlocutory injunction should be granted

no matter how strong the plaintiffs' case may appear

to be at that stage. If damages recoverable in the

action would not be adequate compensation, then the

Court would, on the order hand consider if, the

injunction is refused and the defendants were to

succeed in the substantive claim, whether

defendants/appellants could be adequately

compensated under the plaintiffs" undertaking as to

damages for the injuries they would have suffered as

a result of the injunction. If damages recoverable

under the plaintiffs' undertaking as to damages would

be adequate compensation then the injunction could

be granted.”

In the Ruling by the High

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Court, particularly at page 294-5 of the Record of Appeal, it

had alluded to the position of the law as stated above when

it said: -

"Balance of convenience is merely a shorthand way ofdescribing the process by which the Court considersor evaluates who suffers the greater risk between theparties. It involves weighing the competing rights ofboth parties, Will more justice be done by grantingthe relief? Or will it result in greater injustice. Tosucceed there must be some evidence before theCourt that the appl icant wi l l suffer moreinconvenience. Let me also at this juncture state thata Court of law is not expected to resolve the liveissues at the interlocutory stage for the singularreason that the evidence before the Court isincomplete, untried and untested. This serves toinsulate the merits of the matter from discussion atthe interlocutory stage. see: GLOBE FISHINGINDUSTRIES LIMITED V. COKER (1990) 7 NWLR (PT.162) @ 265; ORJI V. ZARIA INDUSTRIES LTD. (1992)NWLR (PT. 5441 @ 5 and OGUNSOLA V. USMAN(2002) 14 NWLR (PT. 881 @ 636.”

The High Court then proceeded to consider the evidencebefore it on the balance of convenience

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and concluded that: -

"In the instant case the relevant question to ask iswhether or not more harm or injustice will be done tothe applicants if the injunction is not granted. It isapparent from the affidavit evidence placed beforethe Court that the Exhibit A being the letter ofconditional offer made to the applicant was dulyaccepted. By the applicant's own admission his letterof acceptance dated 03/08/10 marked as Exhibit C,was marked 'subject to contract'. It is equally evidentfrom Exhibit M that the conditional offer was revokedby the offeror on 7th July 2011 and I so hold. By theapplicants' own admissions the respondent/offerorhas obtained, considered and evaluated bids fromthird part ies in respect of plots init ia l ly(provisionally) allotted to the applicant. There is noevidence before the Court that the purchaseagreement was executed between the parties or thatthe 1st installment of N658M has been paid by theapplicants herein. I must therefore surmise that theapplicants have not shown convincingly to the Courtthat greater harm and or injustice would fail onthem."

The question that arises is whether the affidavit

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evidence placed before the High Court by the parties in the

application supports the above findings and conclusion on

the balance of convenience. In the affidavit deposed to by

Olapipo Adeola on the 13th of March, 2011 in support of

the application, it was admitted that the offer by the

Respondent to the Appellants for the plots of land in

question, which was attached as Exhibit B to the affidavit,

was accepted by them.

The offer letter; Exhibit B is titled "RE; CONDITIONAL

OFFER TO PURCHASE SERVICED LAND AT TWIN

LAKES ESTATE, LEKKI-EPE EXPRESSWAY LEKKI."

Conditions for the completion of sale, execution of apurchase agreement and financial terms to be met andfulfilled, were set out therein. The High Court was rightthat the offer was a conditional one as borne out by theAppellants’ own affidavit evidence. In Paragraphs 26 and28 of the affidavit, it was deposed as follows: -

"(26) That the Claimant/Applicants are aware that allthe plot of land in the Lekki Twin Lakes Estateprojects have been allotted to successful bidders.(28) That the Claimant/Applicants were surprisedwhen the Defendants/Respondent started inviting

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bids from members of the public asking them to bid

for plots of land in the Lekki Twin Lakes Estate

projects. Attached and marked Exhibit O and P

respectively respect for scaled bids and letter to

p r o s p e c t i v e i n v e s t o r f r o m t h e

Defendants/Respondent."

Put communally, these averment are to the effect that theAppellants knew that the Respondent had called for bids inrespect of plots of land from other parties and "that allplots in the Lekki Twins Lake Estate projects have beenallotted to successful bidders". The averments in theAppellants affidavit clearly support the High Court's findingthat the Appellants have admitted knowledge that theRespondent had obtained, considered and evaluated bidsfrom third (3rd) parties in respect of plots of land initiallyallotted to them. The finding cannot therefore be said to beperverse as argued by the learned SAN for the Appellantssince it is borne out by the evidence placed before the HighCourt by the Appellants themselves.

Furthermore, it has not been suggested by the Appellantsthat there was any evidence led before the High Court thatthe purchase agreement between the parties was executedor

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that the 1st Installment of Six Hundred and Eighty-Five

Million Naira (N685 Million), was paid by the Appellants, as

contained in the conditional offer for the sale of the plots of

land to them. Rather, by the averments in Paragraphs 15

and 18 of the Appellants' affidavit, they show that the sale

agreement was not executed and that the 1st Installment

was not paid by them.

Once again, the findings by the High Court in respect of theabove points are borne out by the Appellants' own affidavitevidence and cannot seriously be said to be perverse. Thefacts demonstrated above are some of the facts deposed toby the Appellants in the affidavit in support of theapplication which the High Court was not only entitled to,but has the primary judicial duty to consider in thedetermination of the question of who, between theAppellants and the Respondent was likely to suffer moreinjury in the grant of the application and in whose favourlies the balance of convenience.

The facts may be some of the facts relied on by theAppellants in the substantive case and their considerationand f indings by the High Court on them in thedetermination of the

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application by the Appellants for interlocutory injunction,

would not ipso facto, amount to delving in to the

substantive issues to be decided in the case. The primary

claims by the appellants as contained in the statement of

claim dated 11th November, 2011 are for declaration that

the contract for the sale of the plots of land in question, of

27th July, 2010 was subsisting, specific performance of the

contract and perpetual injunction. None of findings by the

High Court in the Ruling appealed against has been

demonstrated to have prejudged the issues in the claims as

the High Court only found that on the affidavit evidence

before it, there was no evidence that the purchase

agreement was executed. Whether or not the contract

claimed by the Appellants in their pleadings existed, was

valid and legally enforceable to entitle them to declaration

and specific performance sought, would depend on the

evidence to be adduced by them in support thereof at the

trial of the substantive case.

The added reason set out by the High Court that there areother plots of land in the Estate to be allotted to theAppellants in the event they succeeded in their claims, is

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not supported by any averment in the Appellants' or

Respondent's affidavits. On the contrary, as shown, by

Paragraphs 26 and 28 of the Appellants' affidavit, all plots

of land in the Estate have been allotted to successful

bidders whose bids were invited and considered by the

Respondent. The basis of the finding that the Appellants

discovered plans for canal on the plots allocated to them, is

untenable as it does not automatically translate into the

availability of other plots for allocation to the Appellants in

the Estate. This finding notwithstanding, the High Court is

right in its evaluation of the evidence presented by the

Appellants in particular, since they owed the duty to prove

their entitlement to the injunction, and the finding that the

balance of convenience is in favour of the Respondent.

Specifically, the Appellants did not demonstrate how

damages cannot compensate them for the injury that may

occur to them if the application was refused and they

succeeded in their claims, eventually. The only ipse dixit of

their sentimental attachment to the plots of land allotted to

them, is not sufficient and cogent material for inadequacy

of damages to

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compensate them in the case.

In addition, there is no positive undertaking by theAppellants as to damages to the Respondent in event thatthe application was granted and they failed in their claims.The only feeble and weak averment in paragraph 30 of theAppellants' affidavit merely indicates their preparedness toenter into an undertaking as to such damages which is notsufficient to fulfill a vital requirement for the grant of theinjunction sought. Buhari v. Obasanjo (Supra); KotoyeV. CBN (Supra); Praying Band of C & S v. Udokwu(1991) 3 NWLR (182) 716; Adewale V. Gov., EkitiState (2007) 2 NWLR (1019) 634; Leasing Co. Nig. v.Tiger Ind. Ltd. (supra). Although, the absence of anundertaking as to damages may or will not warrant thesetting aside of an order for injunction when or wheremade, it will militate against the grant for want ofcommitment by the Applicant. Onyesoh V. Nnebedum(1992) 3 NWLR (229) 315; Afro-Continental Nig. Ltd.V. Ayantuyi (1995) 9 NWLR (420) 411. Extraction of apositive undertaking for damages from an applicant forinterlocutory injunction is a judicious and judicial duty bythe Court in the determination of

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whether it is equitable to grant an order of injunction

against a party to the case pending a final decision of the

dispute between the parties.

In the above premises, I find no merit in the Appellants'Issue One (1) and it is resolved against them.

Issue two (2) of the Appellants is whether the High Courtwas right that the act sought to be restrained was acompleted act.

It was submitted for the Appellants that the High Courterred in finding that the act sought to be restrained hadbeen completed by reference to the revocation of the offermade to the Appellants because the prayer on theirapplication was not to restrain the Respondent from thesaid revocation. It was contended that the prayer by theAppellants was to restrain the Respondent from selling theland in dispute to third (3rd) parties based on the allegedrevocation, which gave rise to the action. According to theAppellants' learned Senior counsel, as at the time ofhearing the Appellants' application, "there was no scintillaof evidence before the Court below that the plots of landhad been sold to a third party by the Respondent." TheHigh Court was said to have

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misconceived the terms of the Appellants' prayers and the

evidence before it, thereby taking into account, matters

which ought not to have been considered, resulting into a

miscarriage of justice against the Appellants. The Court is

urged to resolve the issue in Appellants' favour.

For the Respondent, the submissions are that there was nomisconception of the Appellants' prayers in the applicationby the High Court and that the point made in the finding oncompleted act is that delay defeats equity. It was contendedthat the Appellants did no controvert the Respondent'saverment in Paragraph 4(x) of the counter affidavit that ithad received, evaluated and processed bids on the subjectmatter before the date the substantive suit and applicationwere filed by the Appellants, so the Appellants were said tobe aware that the particular acts of the Respondentoffering the land for sale or dealing with land, had beendone, prior to the application for injunction and that thirdparties were committed. It was said that the completed actfinding was only one and not the only reason for refusal ofthe application by the High Court and that other reasonstated

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in the ruling can sustain the decision. The Court is urged to

resolve the issue in Respondent's favour.

The law is generally settled that an order for interlocutoryinjunction is not a remedy for an act that has beencompleted before the order because, as stated earlier, itsprimary purpose is to restrain a party from acts likely todestroy or fundamentally and radically affect the subjectmatter of litigation, pending the final determination by theCourt. See Comm. for Works, Benue State (Supra);Ayorinde V. A.G., Oyo State (1996) 3 NWLR (434) 20;Lafferi Nig. Ltd V. Nal Merchant Bank, Plc (2002) 1NWLR (748) 333; Ideozu V. Ochoma (2006) 4 NWLR364.

In the present appeal, I have at the beginning of thisjudgment, set out the prayers contained on the face of theAppellants' motion for interlocutory injunction. As areminder, the primary relief sought on the motion in prayerone (1) thereof, is:-

"1. AN ORDER of Interlocutory Injunction restrainingthe Defendants whether by Themselves, privies,agents or any representative howsoever fromreselling, offering to sell or otherwise dealing withthe land identified and delineated as C1-B,

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C1-C (Commercial Plots) and R2-B (Residential Plots)

situate at Twin Lakes Estate, Lekki Peninsula, Lekki,

Lagos in a manner inconsistent with the interest of

the claimants in the said plots of land pending the

determination of this suit.

Simply put, the prayer seeks an order from the High Courtto restrain or stop or prevent the Respondent from re-selling, offering for sale or otherwise dealing with the plotsof land, subject of the suit, in a manner that may beprejudicial to or inconsistent with the interest of theAppellants. Clearly, the act/sought to be restrained in theprayer is/are the resale, offer to sell and other way ofdealing with the plots of land in dispute which wouldconflict with or derogate from the interest of the Appellantsin the plots of land, pending the determination of the casebetween the parties.

The Ruling of the High Court on the issue of completed actwas that:-

"Before I conclude I need to emphasize that the law issettled that a Court of law will not restrain acompleted act. see: ODUFUWA V. JOHNSON (1971)ALL. NLR @ 142; ADENUGA vs. ODUMERU (2003)NWLR (PT. 927) @ 169 and SPDC V. HOTEL DEDEFAMA LTD

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(2007) 1 ALL. FWLR (Pt.359) @ 1395. It is not in

contention between the parties that the respondent as

for back as July 2011 revoked the offer made to the

applicants, This suit was not filed until sometime in

November 2011, sending a signal that the action

sought to be restrained by the applicants was

completed at least three clear months before the suit

was commenced and I so hold."

Undoubtedly, the basis of the above finding is that theaction was brought three (3) clear months after therevocation of the offer to the Appellants, by theRespondent. The finding was therefore predicated on theact of revocation of the offer to the Appellants, by theRespondent which was said to have been completed monthsbefore the action was initiated. However, as seen in theprayer sought by the Appellants in their motion, they seek,not to restrain the Respondent from the revocation of theoffer to them, which, from the affidavit evidence before theHigh Court, the parties are one in, but to restrain theRespondent from re-selling or offering for sale or othermanner that is detrimental to the interest of the appellants,in the plots of land in

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dispute.

It may also be recalled that the principal relief sought inthe substantive case by the Appellants is a declaration thatthe offer by the Respondent and acceptance by theAppellants in respect of the plots of land, was subsisting. Ineffect, the main relief sought in the Appellants case was tonullify or void the revocation of the offer by the Appellantsbefore the action. It's a matter of common sense that theaction could not have been properly brought against therevocation before it happened or occurred and wascommunicated to the Appellants. For the purpose of themotion for interlocutory injunction, the time of therevocation of the offer, which was the cause of action forthe Respondent in the substantive suit, was inmaterial andof no moment. The motion did not, once more, seek torestrain the revocation of the offer by the Respondent, butto prevent or stop it from re-selling or offering for sale theplots of land in dispute in the substantive case. In thisregard, the learned SAN for the Appellants is right, and so Iagree with him, that the High Court misconceived thereliefs sought by the Appellants in their motion for the

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injunction sought and thereby erred in finding that it

sought to restrain a completed act. I find merit in this

aspect of the Appellants' issue two (2).

There is another or other aspect of the Issues 2 which wasdealt with under Issue One (1). I have demonstrated that bythe averments in Paragraphs 26 and 28 of the affidavit insupport of the Appellants' motion, the Appellants haveclearly indicated the fact that they are aware that theRespondent had invited bids from members of the publicfor plots of land in the Estate, vide Exhibits "O” and "P"attached to the affidavit, and "that all the plots of landin the Lekki Twins Lake Estate projects have beenallotted to successful bidders."

This position from the Appellants is supported by theRespondent's averment in Paragraph 4(w) of the counteraffidavit dated the 12th April, 2012 which says:-

“4(w). Since the Conditional Offer was revoked andforfeited vide the 2nd Respondents letter of July 7,2011, the 2nd Respondent had received, evaluatedand processed further bids on the subject land inTwin Lakes Estate prior to the claimant's filing of thissuit on November 11, 2011

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and filing of this application in February 2012. The

Claimants' delayed in filing the application."

By the depositions in Paragraphs 25 and 28 of theAppellants' affidavit as well as that in Paragraph 4(w) of theRespondent's counter affidavit, it is beyond viablearguments that the parties are one in stating the fact thatthe Respondent had invited bids from members of thepublic for plots which bids had been evaluated andprocessed and that all plots of land in the Lekki Twins LakeEstate, have been allotted to successful bidders. Theaffidavit evidence placed before the High Court by theparties in the application for the injunction, leaves no doubtthat at the time the motion was brought, all the plots ofland in the Estate in question have been allotted tosuccessful bidders from members of the public invited bythe Respondent, so there were no more plots of land in theEstate which the Respondent could resell, offer for sale ordeal with in any manner that was inconsistent with theinterest of the appellants, for the purpose of the injunctionsought. I should point out that because the aboveaverments are part of the evidence placed before the

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High Court in the Appellants' motion and it forms part of

the Record of Appeal, the Court is entitled to look at and

consider it in the determination of the appeal even if not

alluded to by the learned Counsel for the parties.

Fumudoh V. Aboro (1997) 9 NWLR (214) 210: Agbaisi

V. Ebikorefe (1997) 4 NWLR (502) 630: Agbareh V.

Mimta (2008) 1 SCNJ 409; Tsokwa V. UBA (2008) 1

SCNJ, 323.

In the above premises, the Appellants' prayer for injunctionto restrain the respondent from reselling, offering for saleor dealing with the plots of land in dispute in thesubstantive case, which sale of all plots in the Estate hadbeen done and allotted to successful bidders, is in respectof a completed act since there are no longer any plotswhich the Respondent could resell or offer for sale pendingthe determination of the substantive suit.

In the result, though the High Court misconceived theappellants' prayer in its finding on the completed act ofrevocation of the offer by the Respondent, the prayer, asshown above, is in respect of the completed sale of all theplots of land in the Estate where the plots of land claimedby the Appellants in the

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substantive case, are situate.

It is therefore one which seeks to restrain a completed actin respect of which an interlocutory injunction cannot andshould not be granted.

In the final result, for the reasons set out above, I find nomerit in the appeal and it is hereby dismissed. The Rulingof the High Court dismissing the Appellants' motion forinterlocutory injunction delivered on the 8th May, 2012 ishereby affirmed.

There shall costs of One Hundred Thousand Naira(N100,000.00) in favour of the Respondent to be paid bythe Appellants, for the prosecution of the appeal.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honourof reading in print the closely reasoned judgment preparedby my learned brother, Mohammed Lawal Garba, J.C.A.,and I agree that the appeal lacks merit as the act sought tobe restrained had been completed vide John Holt NigeriaLtd. and Anor. v. Holts African Workers Union ofNigeria and Cameroons (1963) A.N.L.R. 395 at 390thus –

" ... and interlocutory injunction was no more a remedy foran act that is already completed."

I too would dismiss the appeal with

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N100,000 costs to the respondent against the appellants.

TIJJANI ABUBAKAR, J.C.A.: My learned brother GARBA,JCA granted me the privilege of reading in draft the leadJudgment just delivered.

I am in complete agreement with the reasoning andconclusion and adopt the Judgment as mine.

In queuing behind my learned brother, let me also statethat, an interlocutory injunction is granted with the objectof keeping matters in status-quo between the litigatingparties, until the matters are heard and determined.See:AMERICAN CYANAMID CO. VS ETHICON LTD(1975) A. C. 396; In the instant appeal an interlocutoryinjunction is not available as remedy for an act that isalready completed. See: JOHN HOLT NIG LIMITED & 1OTHER VS. HOLTS AFRICAN WORKERS UNION OFNIGERIA & CAMEROONS 2 SC NLR 383.

For the above reason and the more elaborate reasons setout in the lead Judgment, I also find no merit in this appealand hereby dismiss it, I affirm the Ruling of the lower Courtdelivered on the 8th day of May 2012.

I abide by the consequential orders made including orderon costs.

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