ATAIJE & ORS v. HIS MAJESTY, KING A. M. IKURU, KSC, OKANAMA VII & ORS CITATION: (2018) LPELR-45946(CA) In the Court of Appeal In the Port Harcourt Judicial Division Holden at Port Harcourt ON MONDAY, 16TH JULY, 2018 Suit No: CA/PH/22/2018 Before Their Lordships: ALI ABUBAKAR BABANDI GUMEL Justice, Court of Appeal THERESA NGOLIKA ORJI-ABADUA Justice, Court of Appeal CORDELIA IFEOMA JOMBO-OFO Justice, Court of Appeal Between 1. ATHANASIUS JAMES ATAIJE 2. MR. NATHAN ASUK 3. DR. UNYEJIT ASUK WILL 4. ROYLAND IYEORON 5. UKPATU GABRIEL 6. ADOLPHUS ASUK 7. JULIUS UKOTIJE (For themselves and as representing the entire members of the Asukama Village of Andoni Local Government Area of Rivers State) - Appellant(s) And 1. HIS MAJESTY, KING A. M. IKURU, KSC, OKANAMA VII 2. H. H. UBOON JONAS GOGO MININI-OYO 3. SIR, CHIEF (DR.) S. H. OWONTE 4. CHIEF (DR.) HON. D. P. IKANYA, J.P 5. CHIEF NDEN N. OFIK 6. CHIEF JUSTUS AWAJI HEBRON-ORON, J.P 7. ELDER NATHAN OKE 8. MR. CORNELIUS LAWRENCE UBULOM 9. MR. CHARLES DODD GILBERT (For themselves and as representing the entire members of the Ikuru Town Community, Andoni Local Government Area of Rivers State) - Respondent(s) (2018) LPELR-45946(CA)
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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