Before Their Lordships
ADOLPHUS GODWIN KARIBI-WHYTE Justice of The Supreme Court of Nigeria
SALIHU MODIBBO ALFA BELGORE Justice of The Supreme Court of Nigeria
PHILLIP NNAEMEKA-AGU Justice of The Supreme Court of Nigeria
ABUBAKAR BASHIR WALI Justice of The Supreme Court of Nigeria
MICHAEL EKUNDAYO OGUNDARE Justice of The Supreme Court of Nigeria
Between
CHIEF T.A.L. AKAPO (OJORA OF LAGOS)
(For himself and on behalf of the Ojora Chieftaincy Family other than the Defendants). Appellant
AND
1. ALHAJI H.A. HAKEEM HABEEB
2. PRINCE ABUDU LASISI OJORA
3. ALHAJI G.A. ALLI-BALOGUN
4. ALHAJI YISA OTTUN
5. OLADEGA AJAYI OJORA
6. ALHAJI RASAKI AYINLA OJORA
7. ABDUL RAHEEM DISU
8. ALHAJI RILWAN ALLI-BALOGUN
9. LATIFU AJIBOLA ODUNSI
10. LAMIDI YUSUFU ADARAMOLA
II. ALHAJI BOONY AMIN ZAID
12. ALHAJA AMUDALATU SANNI BALOGUN
13. MURI AYAYI OJORA
14. AMINU ALLI-BALOGUN
15. IMONI ODUNSI
16. ALHAJI GANIYU ADEYEMI
17. GANIYU AROMIRE Respondents
…………………….A…………………….
Even before appellant settled down in his new office, a proposal to amend the terms of settlement was made on the 7th December, 1977. At this meeting names were proposed to fill existing vacancies in the family council. This expedient was to correct the situation existing since 15th February, 1974 when there has been no family Council, and when there has been no meeting of the family council for lack of a quorum.
…………………….B…………………….
…………………….C…………………….
Finally, the learned Judge ordered that the rents collected from the properties of the family be paid into the High Coun, Registry, Lagos.
…………………….D…………………….
Plaintiff, dissatisfied with the ruling of the High Court appealed to the Court of Appeal against the ruling on four grounds.
The 2nd – 5th, 7th – 9th, 12th – 15th also gave notice of intention to support the ruling of the trial Judge on grounds other than those relied upon by the Court.
In the Court below, appellant, 1st and 2nd set of respondents formulated three, four and three questions for determination respectively. For ease of reference, I hereunder reproduce the questions:
Appellant:
1. Whether having rightly held that the deprivation of the Plaintiff/Appellant of his right to manage and control the family properties could not be quantified in terms of damages, whether he was right in holding that the plaintiff would not appear to have suffered any damage except wounded esteem.
2. Whether the learned High Court Judge was right in holding that an injunction against the Defendants would deprive the Ojora Chieftaincy family of the effective control and management of the family properties.
3. Whether the learned trial Judge was right in directing that the rents from the family properties should be paid over to the High Court Registry. Lagos, when neither of the parties, prayed the Court to make such an order.
The first set of respondents seeking to affirm the ruling of the learned Judge on other grounds formulated their questions as follows:
(a) Whether the appellant made out a prima facie case for injunction against the respondents.
(b) In view of the fact that there is no longer a family council whether the power exerciseable by the council escheat to the family at a Family General Meeting.
(c) Following from (b) above. the Family Council having ceased to function since 1974, whether its power escheat to the Family at a General Meeting.
(d) Whether there was any evidence of wounded esteem in support of the application for injunction by the Appellant at the lower Court and if the answer is in the negative, was the Judge right to have dealt with evidence that was not before him.
The second set of respondents who filed a cross-appeal, formulated the following three issues for determination, namely
(i) Whether the Appellant made out a prima-facie case for an injunction against the respondents?
(ii) Whether the equitable relief of injunction ought to have been granted having regard to:
(1) the tardiness in bringing the application, and
(2) the conduct of the appellant? and
(iii) Whether the injunction ought to have been granted in view of the Appellant’s failure to obtain leave to sue in a representative capacity.
…………………….E…………………….
These were the issues arising from the grounds of appeal which the Court below was required to resolve in the determination of the appeal.
The Court of Appeal, Ademola, Awogu J.J.C.A., Akpata J.C.A., dissenting dismissed the appeal of the appellant. The Court accepted appellant as the de jure head of the Ojora Chieftaincy family and the Chief Ojora of Lagos, but held that because of the actions instituted against him by a section of the family which are still pending in Court and the several misconduct alleged against him, the Court will not be holding the balance evenly between the parties if the injunction were to be granted. It also held that in the circumstances it was impossible to maintain the status quo ante as the machinery for the control and management of the family property had broken down and that the grant of an injunction would not be in the interest of the family. The Court of Appeal held that the balance of convenience lay in allowing the accredited representatives of the family and the General Meeting of the family to exercise control, rather than the appellant.
The Order of the learned Judge that all rents be paid to the Chief Registrar of the Lagos High Court was affirmed.
Appellant has further appealed to this Court against the judgment of the Court of Appeal. There are eight grounds of appeal. I do not consider it necessary to set out the grounds of appeal verbatim. It will be sufficient for my purpose to summarise them. This is the more so because the parties have in their briefs of argument formulated issues for determination in this appeal.
The grounds of appeal relate to the question of balance of convenience (grounds 1,5.) the nature of the damage suffered by the plaintiff (grounds 2, 3, 4,) the inequities of granting the injunction (ground 6) and the question of granting a relief not asked for by the plaintiff (ground 8).
However, learned counsel has formulated the issues for determination variously from the eight grounds of appeal. I find it convenient to refer to the issue formulated by learned counsel to the appellants. 1st set of respondents and 2nd set of respondents respectively.
Learned Counsel to the appellants has formulated seven issues as follow:-
“(i) Whether the Court of Appeal was right in holding that the appellant would suffer only wounded pride if the injunction was refused.
(ii) Whether the Court of Appeal was right in holding that the grant of an injunction would not be in favour of the Ojora family and that the balance of convenience lay in favour of the Defendants and in letting the General Meeting of the family continue to act as it had been doing.
(iii) Whether the Court could have maintained the status quo by granting the injunction sought.
(iv) Whether the Court of Appeal should have considered the effect of the grant of an injunction on the other suits instituted by the Defendants against the Appellant.
(v) Whether the Court should have upheld the Order that rents be paid into the High Court Registry when such an order was not sought by either party.
(vi) Whether the Court of Appeal was right in considering whether the Appellant had delayed in bringing the application for injunction or in holding that he had so delayed and that granting the injunction would now lead to chaos.
…………………….F…………………….
(vii) Whether it would be inequitable to gram the injunction sought because the Appellant had not refuted the allegations made against him in the affidavits of the Defendants.”
Concisely and summarily stated these issues fall into, the nature of the injury to the plaintiff, the question of the balance of convenience, the maintenance of the status quo ante, and the granting of relief not asked for by the plaintiff.
On their pan, the 1st set of respondents formulated seven issues as follows:-
“2.1 Whether the Court of Appeal was right in considering the issue of wounded pride when the said issue was not part of the evidence before the trial Court.
2.2 Whether the Court of Appeal was right in holding that the status quo ante bellum:
(a) Which the injunction is meant to prevent would be a ‘state of affairs where the Appellant as Chief Ojora and the Family Council created under the Terms of Settlement would together control and manage the family properties.’
(Italics for emphasis only):
(b) as stated in (a) above, can still be maintained in view of the break down in the machinery for the control and management of the family property and the series of Court action by members of the family challenging the authority of the Appellant.
(c) If the answer to (b) above is in the negative whether the Court of Appeal rightly held that the control and management of the family property must reside in the accredited representatives of the family appointed at a General Meeting.
2.3 Whether the Court of Appeal rightly held that the conduct of the Appellant, that is, delay in bringing the application, and the intended allegations of impropriety are relevant issues in determining the grant/refusal of the injunction.
2.4 Whether the Court of Appeal was right in upholding the Order that rents be paid into the High Court Registry.”
Like the formulation by learned counsel to the appellant the formulation also fall into the question of the balance of convenience, the maintenance of the status quo ante, the granting of relief not claimed, and the reasons of equity justifying the refusal of the injunction.
The 2nd set of respondents also formulated six issues for determination as follows:-
“1. Whether the Court of Appeal was right in holding that the grant of an injunction would not be in favour of the Ojora family and that the balance of convenience lay in favour of allowing the Respondents alleged to be in control, the control and management of family properties having regard to the fact that ‘rents premiums and any other money collected’ after deducting administrative cost, rates and levies were to be paid into Court.
2. Whether the Court could have maintained the status quo by graining the injunction.
3. Whether the Court should have upheld the order that rents be paid into the High Court Registry when such an order was not sought by either party.
4. Whether the Court of Appeal was right in considering whether the Appellant had delayed in bringing the application for injunction.
5. Whether the Court of Appeal was right in holding that the delay by the Appellant in bringing his application for injunction was sufficient reason to refuse the injunction.
…………………….G…………………….
6. Whether it would be inequitable to grant the injunction sought because the Appellant had not refuted the allegations made against him in the affidavits of the Respondents.”
For convenience the formulation could be classified into the questions (a) dealing with the maintenance of the status quo ante. (b) those justifying the refusal of the injunction on considerations of equity, (c) and the issue of the grant of relief not claimed by the plaintiff.
The following issues can be distilled on analysis, of all the questions for determination formulated from the grounds of appeal. There is-
(1) the issue of the nature of the damage suffered by the plaintiff
(2) the maintenance of the status quo ante
(3) the question of the balance of convenience between the parties;
(4) considerations of Equity in refusing the grant of injunction;
(5) the question of granting relief not claimed by the plaintiff.
I shall now consider the submissions of counsel in this appeal in accordance with the issues for determination. It is of paramount importance to bear in mind the fact that the application before the Court is for a grant of interim injunction pending the determination of the substantive claim brought by the plaintiff. The duty of the Judge in that situation is to ensure that he did not in the determination of the application determine the same issues that would arise for determination in the substantive action. The Judge in this application is therefore walking a tight rope to maintain a balance between establishing that the applicant has established that he has a right which ought to be protected by injunction pending the determination of his claim and the right of the defendant/respondent, that the claim of the plaintiff was not determined on the application for interim injunction.
This consideration precludes the trial Judge from doing more than ensuring formerly, that the applicant has made a strong prima facie case in respect of the substantive claim, See Ladunni v. Kukoyi (1972)1 All NLR. (Pt. 1) 133, Egbe v. Onogun (1972) 1 All NLR. (Pt. 1) 95, or that there is a strong probability that he is likely to succeed in the substantive action. See Kufeji v. Kogbe (1961) All NLR. 113.The inconsistency of this requirement with the precondition of not entering even faintly into the determination of the substantive action, and for the important consideration of maintaining the status quo ante between the parties resulted in the now more acceptable view that all the applicant need establish is that he has a right which ought to be protected pending the determination of the substantive action, and that there is a serious issue on the evidence before the Judge between the parties to be tried – See Obeya Memorial Hospital v. A-G of the Federation & Anor. (1987) 3 NWLR.(Pt.60) 325. The question of the determination whether the application should be granted follows upon the establishment of this fundamental issue.
Now in the appeal before us, it is common ground that the appellant is the recognised Chief Ojora, and head of the Ojora family. This status was recognized by all the members of the family. By customary law family property is vested in him.
By Clause 9 of the written agreement of the family in the document referred to as their constitution “Exhibit PAA1.” Applicant is the Chairman of the council in whom the property of the family is vested. It seems to me clear also from the ruling of Agoro J. that the existence of a right in the plaintiff/applicant was recognized when he said; at p.67
“On the question whether the plaintiff would be adequately compensated by an award of damages. I should point out that the main complaint by the plaintiff was that the defendants had unlawfully deprived him and the familycouncil the right to manage and control the Ojora Chieftaincy Family properties as contained in the Terms of Settlement marked Exhibit “PAA1:’ It seems to me that the deprivation of the right of management and control of family properties cannot be quantified in terms of damages: since the plaintiff would appear nor to suffer any damage, except of course wounded esteem within the Ojora Chieftaincy Family.”
…………………….H…………………….
There is no doubt that this is a clear recognition that plaintiff had a right in respect of the Ojora Chieftaincy Family property which he has been deprived of. The misconception seems to have arisen from the concept of the nature of the right and whether it could be protected by injunction as claimed by the applicant. The Court of Appeal fell into the same error when it approved the view of the trial Judge and interpreting the nature of the damage suffered by plaintiff/applicant, when it said.,
“What exactly does the learned Judge mean by wounded pride? To me it sounds like a big name for a simple word that is called disgrace or loss of face within the family. This the learned Judge found difficult to quantify and the appellant has argued that this wounded pride means loss to the appellant to collect rents on the family properties for the maintenance of himself, his sub-chiefs and the Iga-palaces’
The Court below then concluded,
“Let me say straight away that wounded pride or what I would like to call loss of face or disgrace does not mean all these. If these are the losses that follow from wounded pride which the appellant has suffered it behoves him to aver all these in his affidavit if he wanted an injunction.”
It seems obvious that the reason given by the Court below is different from that of the trial Judge. Their reason was that there was no averment by the applicant of the loss suffered. Both Courts are agreed that applicant has a right, but having suffered no quantifiable damage, or having not averred any damage, the right could not be protected by the grant of injunction. Herein in my opinion is the demonstrable error.
Learned Counsel to the appellant submitted in his brief of argument and in his oral expatiation before us that it was a gross error on the part of the Court below to hold that a plaintiff who asserts a right as the head of a land-owning family, and in that capacity the right to collect rents and manage the family property as against some other members of the family, would suffer no pecuniary damage, but only “wounded esteem” within the family or disgrace or loss of face, if he was interfered with in the exercise of that right by other members of the family.
Learned counsel pointed out the pecuniary benefits plaintiff enjoyed. He is entitled as a beneficiary to be paid one quarter of the rent received from the family property. He is also in control of the one quarter payable for the maintenance of the three palaces. Appellant and the two Sub-chiefs” depended on these rents for their ordinary means of subsistence.
Chief G.O.K. Ayayi SAN, submitted that the interference with the plaintiff’s exercise of the above right is “perhaps the strongest ground for granting the injunction sought by the plaintiff.”
It is a fundamental principle for the grant of injunctions that the application will always be granted to support a legal right – See Montgomery v. Montgomery (1965) PA6. Hence, the most important precondition of an applicant is to show that he has a legal right which is threatened and ought to be protected – See Ojukwu v. Governor of Lagos State (1986) 3 NWLR (Pt. 26) 39. It follows therefore that the Court has no power to grant an injunction where the applicant has not established a recognisable legal right. – See Gouriet v. Union of Post Office Workers (1977) 3 All ER. 70.
…………………….I…………………….
It is well established that the essence of the grant of injunction is to protect the existing legal right ofa person from unlawful invasion by another. – See Kofoye v. C.B.N (1989) 1 NWLR. (Pt. 98) 419. It is for the protection of a recognizable right. See Obeya Memorial Hospital v. A.G. for Federation & anor. (1987) 3 NWLR (Pt.60) 325. Hence an injunction can be granted though no pecuniary damage is proved. See King v. Brown Durani & Co. (1913) 2 Ch. 416. As long as the acts complained of will result in the infringing of the applicant’s rights, it is a proper case for intervention by the grant of an injunction.
The learned Judge and the Court of Appeal recognised that plaintiff/applicant had a recognised legal right in the control and management of the Ojora Chieftaincy property. They also recognised that the defendants were depriving plaintiff/applicant of such control and management. It follows from their own reasoning that plaintiff/applicant was entitled even without proof of any injury to the grant. This is deducible on first principles for the protection of one’s recognized rights – Ubi jus ibi remedium – See Ashby v. White (1703) 2 Ld. Raym 938.
In the English case of King v. Brown, Durant & Co. (1913) 2 Ch. 416, Joyce J. was dealing with an action by the owner of an enfranchised copyhold against a firm or company who are similar owners, for the disturbance of the plaintiff’s right or common over the waste of the manor. One of the con ten lions of the defendants, resisting a claim of injunction for trespass is that, although a commoner cannot maintain such an action even if he proves damage, no damage was shown in that case. Plaintiff countered by the argument that his right of common having been interfered with, the fact that the tort-feasors were fellow commoners made no difference.
In granting the injunction Joyce J. said: at pp. 420 – 421.
“In this case it is not, in my opinion necessary for the plaintiff to prove any actual pecuniary damage at present: the defendants are wrongdoers and there is no justification whatever for their conduct and, as they decline to pay any attention to the reasonable remonstrances of the plaintiff, they must be stopped by the court. The result is that there must be judgment for the nominal sum of one shilling for damages, and there must be an injunction.”
All that was required was that plaintiff should establish the existence of a recognised right and the violation or threatened violation of such right. Tile nature of the damage suffered is irrelevant.
In the instant case appellant having established his right to control and manage the Ojora Chieftaincy family property, it is irrelevant to the grant of injunction in recognition of the protection of the violation of the right, that the violation of the right resulted in wounded esteem, and not in pecuniary damages.
The appeal could be allowed on this ground alone.
I now turn to the next issue for determination, which is the Maintenance of the status quo ante bellum between the parties. This is an important consideration for the grant of an interlocutory injunction. The Plaintiff seeking the grant of injunction wants the Court to restore the parties to the position they were before the incidents which necessitated resort to the application to the Court. What then is the status quo in this case?
It is common ground by all learned counsel in their briefs of argument that the status quo ante bellum is
”’The state of affairs where the Appellant as Chief Ojora and the Family Council created under the terms of settlement would together control and manage the family properties” (per. Ademola J.C.A. at p. 97)”
This was the situation until the respondents vi et armis took over the family offices and began to collect rents from the family’s tenants.
Learned counsel to the 2nd set of respondents has argued in his brief that the status quo ante bellum was not maintainable.
…………………….J…………………….
Counsel referred to the several improprieties and financial mismanagements alleged against appellant in the counter affidavit of the 1st, 10th, 11th, 16th and 17th respondents which have not been denied and submitted that the status quo ante was not in those circumstances maintainable. He referred to and relied on the view in the Court below that;
“The crucial question in this appeal is whether given the situation as it stands now in the family, is it possible to maintain any status quo ante helium’ With the authority of the Appellant under challenge by series of Court action by members of the Ojora family and the machinery of the control and management of the family property broken down, the answer that question must be in the negative.”
The reasons given for the inability to return to the status quo ante is based partly on the situation created by the respondents. Respondents have severely criticized the control and management of the Ojora Chieftaincy Family property by the appellant using the machinery set up under the terms of settlement. As defective as it might have been the machinery was operating till the respondents forcibly and without any constitutional backing took over the management and control of the Ojora Chieftaincy Family properties. It then ceased to exist in fact, although in law, the control and management was still vested in the appellant and the Family Council.
I agree entirely with the submission of Chief Ajayi for the appellant that the institution of actions by certain members of the family against their head is no ground for holding that the head should not continue to discharge his constitutional functions pending the determination of the cases. The institution of actions per se does not constitute liability of the allegations made in such actions.
I think Chief Ajayi’s submission that the admitted illegal actions of the respondents could not ground a reason for denying the appellant the right to injunction and the maintenance of the status quo ante seems to the unanswerable. These are mere allegations. To enter into a discussion of their determination would be entering into deciding the substantive action. This Court cannot do that on this application.
The claim for an injunction is won and lost on the basis of the existence of competing legal rights. As I have already said above, where an applicant for an injunction has no legal right recognisable by the Courts, there is no power to grant him an injunction. Similarly where the respondent to the application relies on the illegality of his actions, there is no right in him to resist the claim of the applicant with a recognised legal right. Injunction being an equitable remedy he who comes to it must come with clean hands. I consider it not only curious but manifestly reprehensible and absurd for respondents to rely on their illegal acts in forcibly taking over the constitutional functions of the appellant, to contend that the Court should by refusing the injunction ratify such a conduct. This Court cannot accede to such a preposterous argument.
In Thomson v. Park (1944) 1 KB, 408, Lord Goddard L.J. made a pronouncement with the same telling effect. He said;
“The status quo that could be preserved was the status quo that existed before these criminal and illegal acts on the part of the defendant. It is a strange argument to address to a Court of law that we ought to help the defendant who has trespassed and got himself into these premises in the way in which he has done and to say that that would be preserving the status quo and a good reason for not granting an injunction.”
The status quo which the Court can by the granting of injunction maintain, is the restoration of the parties to the position they were before April, 1985, when the respondents with force took over the management and control of the offices and property of the Ojora Chieftaincy family, hitherto under the control and management of appellant and the family council. In the circumstances of this case to deny the appellant the grant of the injunction sought is to approve their illegal conduct in taking over control and management of the family properly. It will indeed amount to a condonation of illegality.
…………………….K…………………….
Balance of Convenience
One of the considerations for refusing the injunction asked for by the Courts below is that the balance of convenience was in favour of the respondents. In the Court of Appeal, Adenekan Ademola, J.C.A. reading the leading judgment expressed the view that in the situation in which the authority of the appellant was being challenge by a series of Court actions by members of the Ojora family and the machinery for the control and management of the family properly broken down, the grant of an injunction in appellants favour cannot be in the interest of the family. He went on to state as follows at pp. 97 -98:
”The balance of convenience in the control and management of the family property must in my view reside in the accredited representatives of the family at the general family meeting. The respondents Claim they have been appointed. This is not controverted. The family meeting is the primary organ that creates institution such as the head of the family as well as the family council, and since both the head of the family and the family council cannot function as a body under the family constitution, the control and management or the family property must be in the accredited representatives or the family. It is on this reasoning that I believe the Judge was right to have refused the appellant the injunction against the respondents and for the time being the accredited representatives of the family should have the control and management of the family properties. Between them and the appellant the balance of convenience is in favour of the respondent rather than the appellant.”
In his brief of argument learned counsel to the 1st set of respondents supported this reasoning and argued that the balance of convenience was in favour of the respondents. He submitted that, restraining respondents by injunction, will disturb the existing machinery devised by respondents which has been in process for ten months. (b) the order for payment into Court of the receipts from rents from the family properties will be terminated, and the less convenient procedure whereby appellant would collect the money himself and not subject to any directives pending the determination of the case will be restored. (c) the 1st, 2nd, 3rd and 14th defendants who together with the appellant are members of the family council would be deprived of their right of management in favour of the appellant whose position as head of family is still being disputed.
It has been admitted in this case that the affairs of the Ojora Chieftaincy family is to be governed by the Terms of Settlement, “Exhihit PAA I.”‘ The Terms of Settlement created the family in council, and appellant as the Chairman of the Council. Clause 9 of the Terms of Settlement created the Chairman-in-Council to control and manage the family property.
It is a well established principle of our law that the position of the head of family particularly in societies with recognised chieftaincies with respect to the control and management of its property is dominant. The Chief is the head of the family. He is in charge and control of the family property. He collects the revenue from the family property, and makes recognised disbursements in respect of legitimate expenditure in the interest and for the purposes of tile family. The head of the family can institute actions for and on behalf of the family. Contracts made by the head of the family for and on behalf of the family are valid. – See Balogun v. Balogun (1935) 2 WACA. 290.
On the other hand no individual member or collections of members of the family have legal capacity to enter into contracts for and on behalf of the family. Such contracts without the participation of the head of the family are void. – See Agaran v. Olushi (1907.) 1 NLR. 66. Again, no member of the family without express mandate from the family can institute action in Court for and on behalf of the family.
…………………….L…………………….
The position of the Ojora Chieftaincy family seems to me sui generic. The Ojora Chieftaincy family is governed in addition to the general principles applicable, by the provisions of Clause 11, which established the Ojora Chieftaincy Council. Clause 4 contains a very important provision. It says.
“No meeting or decision of the council shall be considered invalid by reason only of the fact that there is a vacancy which has not been tilled or by reason of the fact that a member who has been duly notified of the meeting could not attend.”
Clause 6 makes the appellant, as Chief Ojora, Chairman of the council. Clause 2 again provides as follows –
“The person for the time being holding the office of Chief Ojora, or in the case of a vacancy, the Chairman together with the council, shall have the power of management and control over the properties (real and personal) vested in or belonging to the Ojora Chieftaincy Family and they shall administer the affairs of the family.”
Reading together clauses 4, 6 and 9, it seems inevitable to come to the conclusion that the appellant as Chairman of the Family Council in who the power of management and control of the Ojora Chieftaincy family property is vested can control and manage the property even where there are vacancies in the membership of the family council. This is because no meeting of the Family Council shall he considered invalid by reason only of the fact that there is vacancy.
Learned counsel to the 2nd set of respondents would appear to have lost sight of the important provision of clause 4 of the Terms of Settlement, “Exhibit PAA 1
“The Chairman admittedly has no powers to constitute the council. But the decision of the Council is not invalid merely because of a vacancy (see clause 4 supra). I think the Court of Appeal should not have taken seriously as it did, the allegation that the Family Council has ceased to function because four of the members of tile original council are respondents to this application (see p. 95).
Now in the final consideration the question of the balance or convenience is a matter between competing legal rights. It is clear from the analysis of the competing legal rights between the appellant and the respondents that whereas appellant seeks to return to the machinery for the control and management of the family property as provided by clause 9 of the Terms of Settlement as agreed, the respondents were seeking to create a new situation outside the Terms or Settlement. There is clearly no provision in the Terms of Settlement enabling such a departure. Hence to the extent to which there is a departure, it is both unauthorized and illegal. In the particular circumstance, the balance of convenience lies in favour of the appellant who is the recognized accredited head of the family, vested with the control and management of the family property, who would lose beneficially and financially if he was deprived of the exercise of his constitutional right.
The respondents, who are not representatives of the family, have no rights under the Terms of Settlement or at customary law for the control and management of the family property. They do not stand to lose any rights even if deprived of the control and management of the family property which they gained by force. – See Hubbbard v. Pitt (1975) 3 All ER. 1, Felloes v. Fisher (1975) 2 All ER 829.
There is no doubt that the continuance by respondents in the unlawful and illegal control and management of the family property is a direct interference with the exercise of the right vested in the appellant by Clauses 4, 6 and 9 of the Terms of Settlement. The balance of convenience in the legitimate control and management of Ojora Chieftaincy family property clearly lies in restoring the control and management to the appellant. In this type of case the balance of convenience is of the utmost importance and legal significance.
…………………….M…………………….
Considerations of Equity
The Court below relied on grounds of equity to refuse the grant of injunction sought. The reasons relied upon range from delay in bringing the action, to the conduct or the plaintiff/applicant. The Court appears to have ignored the conduct of respondents.
Chief G.O.K. Ajayi, SAN, argued in his brief of argument that as the issue of delay was not raised in the High Court, the respondents ought not have been permitted to raise it in the Court below. The Court below should not have relied on it in its judgment in refusing the application for interlocutory injunction. It was submitted that delay per se is not sufficient to defeat the claim for relief except the defendant has by virtue of such delay altered his position to his detriment. Again delay can only defeat a claim for interlocutory injunction where it will in the circumstance be inequitable to grant the relief.
Learned counsel to the 1st set of respondents submitted in his brief of argument that the issue of delay was raised in the High Court. Counsel referred specifically to the argument of Mr. Akinrele SAN in that regard, who cited Mogul Steamship Co. v. M’ Gregor Gow & Co. (1885) 15 QBD. 476, referred to by the learned Judge. It was also submitted that the delay of 9 months between the 1st April 1985 when the incident occurred and the 2nd January. 1986 when the action was brought was too long a delay for bringing an action for interlocutory injunction. Counsel referred to and relied upon the statement of the law in Halsbury’s Laws of England 3rd Edition Volume 21. at pages 360, and 368.
Learned counsel also cited Salisbury v. Metropolitan Railway Co. (1870) L.J. 429, for a delay of six months, Bovill v. Cratre (1866) 1. L.R.E4. 38 for a delay of eleven months; Turner v. Mirfield Vol. 55 ER, 685 for a delay of six months; Bridson v. Benecke Vol. 50 ER. 960 for a delay of eleven months. In all these cases the injunction was refused.
The effect of delay was also pronounced upon by this Court in Kotoye v. CBN & ors. (1989) 1 NWLR (Pt. 98) 419 where Nnaemeka-Agu, J.S.C. said:
“Conduct of the parties has also, quite often been a relevant factor in the consideration of whether or not to grant an application for interlocutory injunction, as with permanent injunction ….. Also delay in bringing the application will defeat it because such a delay postulates that there is no urgency in the matter and destroys the very basis for a prompt relief by way of interlocutory injunction::
I have consistently pointed out in this judgment that respondents have not disclosed any of their legal rights which would be affected by the conduct of the appellant. The period of nine months before the institution of the action and the claim for injunction was not a period when respondents could have altered their position to their detriment. The delay did not affect the non-existent legal rights of the respondents.
Respondents have emphasised the conduct of the appellant in the management and control of the Ojora Chieftaincy family properly, which is the subject matter of dispute. Various acts of impropriety have been alleged against the appellant in the affidavits of the respondents. Learned Counsel to the 1st set of respondents has submitted that since appellant has not denied the allegations he must be take to have admitted them for the purpose of the application.
For this purpose and referring to the effect of impropriety of conduct, learned counsel relied on Ladunni v. Kukoyi (1972) 1 All NLR. (Pt. 1) 13 where G.B.A. Coker J.S.C. said at pp. 136 – 137
“In this respect, however, we point out that the jurisdiction to grant interim injunction is equitable and for this purpose the Court must consider the conduct of tile parties both before and at the time of the application.
…………………….N…………………….
It is important to bear in mind that the allegation of the improprieties against the appellant constitutes the entirety of the substantive claim before the Court. The Court is not at this stage of the proceedings concerned with the proof of the allegations or effective denials of them. The appellant is not being required to establish their refutal. These are matters to be dealt with at the trial. The application before the Court is for an interlocutory injunction. Formerly, all that an applicant was required was to establish a prima facie case, See D.C. Thomson & Co. Ltd. v. Deakin (/952) 1 Ch. 6560ras in Preston v. Luck (1884) 27 Ch.D. 497, 50S – 6, that there is a strong probability that the Applicant is entitled to relief. The question of a strong prima facie case was stated by Atkin LJ in 1924 in Smith v. Grigg Ltd. (1924) 1 KB. 655 at p. 659:
It seems to me from Kufeji v. Kogbe (1961) 1 All NLR. 113, John Holt Nigeria Ltd. & Anor. v. Holts African Workers Union (1963) 2 SCNLR. ⢠383, to Ladunni v. Kukoyi (1972) 1 All NLR. (Pt.1) 133, the test of a prima facie case of the probability that the claim would succeed was applied. In 1987, in Obeya Memorial Hospital v. Attorney-General for the Federation & anor. (1987) 3 NWLR (Pt.60)325, this Court adopted the new test formulated by the English House of Lords in American Cyanamid Co. v. Ethicon Ltd. (1975) 1 All ER. 504, where it was stated to be as follows:-
The Court must no doubt be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to he tried.”
This principle was also applied in Kotoye v. C.B.N. Ltd. (1989) 1 NWLR. (Pt.98) 419.
On a careful reading of the claims in the substantive action, and the affidavit evidence before the Court, it seems to me hardly disputable that there are serious issues to be tried. For instance having accepted appellant as de jure Chief Ojora, is it not a serious issue for trial whether respondents have validly , removed him as Head of the Ojora Chieftaincy family and Chairman of the Family Council? Again, is the contention that the family council has ceased to exist because of the vacancy in its membership, despite the express provision of Clause 4. of the Terms of settlement not a serious issue? Also is the new family council appointed by the Respondents without regard to the provisions of the Terms of Settlement and the powers exercised by them legally valid and within the provisions of the Terms of Settlement? These are some of the several serious issue:-.which fall to be determined at the trial and are within the scope and purview of the substantive action
The above being the issues to be tried in the substantive action Appellant is entitled to the interlocutory injunction sought pending the determination of the substantive action. This is because Appellant who is the embodiment of the Ojora Chieftaincy family and head of the Family Council until otherwise decided in the substantive actjon would suffer more than the Respondents, who enjoy no legal status viz-a-viz. the Ojora Chieftaincy Family property, if the injunction is refused. A fortiori the balance of convenience in maintaining the status quo ante is more in favour of the appellant than in the respondents. Since the injunction is in the interest of the Ojora family the appellant stands to lose in the event of the refusal of the injunction.
…………………….O…………………….
Grant of Relief not sought
I now turn to the Order of the learned Judge that the rents collected be paid into the High Court of Lagos State. Learned Counsel to the appellant has submitted that this order was not one of the claims made by the plaintiff neither could it be brought within its scope.
He submitted, relying on the authority of Ekpenyong v. Nyong (1975) 2 SC. 71 that Courts should not grant reliefs not sought by the parties. Learned counsel to the appellants argued that respondents did not seek an order legalising or approving what they had done. Appellant had been collecting the rents and disbursing it in accordance with the provisions of the family constitution; this is no longer possible. Neither of the parities sought for this Order which should never have been made. The Court below ought not have upheld it. The respondents supporting the order made contended that the Court has an inherent power to make the order even if not sought as long as it was incidental to the prayers sought. Respondents relied on the provisions of section 14of the High Court Law, Cap. 52 Laws of Lagos State 1973, and Iyaji v. Eyigebe (1987) 3 NWLR. (Pt. 61) 523 Atolagbe v. Shorun (1985) NWLR, (Pt. 2) 360 and Mustafa v. Local Govt. (1987) 3 NWLR. (Pt. 62) 663.
The decisions of this Court on the proposition that the Court can only grant reliefs sought or incidental therein is well established. – Ochonma v. Ashirim Unnosi (1965) NMLR. 321.
The Court has no jurisdiction to consider a relief not claimed by either parties and therefore cannot make any valid order in respect of such relief. Any order so made will infringe the basic and fundamental principles of our administration of justice: namely, notice to the other party and hearing the party to be affected.
The relief claimed by the appellant in this action was for the respondents to account for all rents collected from the Ojora Chieftaincy family properties from April 7, 1985, to date and payment over to the plaintiff Family Council. In the application for interlocutory injunction, appellant/applicant sought for an order restraining the respondents, their agents and servants from continuing to collect rents from and in other manner interfering with the control and management of any of the Ojora Cheiftancy properties by running the Ojora Offices situate at 14 Bale Street, Ajegunle 101, Ojo Road, Amukoko, Gaskiya and Alafia, pending the final determination of the substantive action, and for such other order or orders as the Honourable Court may deems fit to make in the circumstances.
The learned Judge refused the application. He however, went on to hold that …justice of the present application demands that rents collected from the properties of the Ojora Chieftaincy family should be preserved pending the final determination of the substantive 2.ction.”
He then went on to make the order appealed against as follows:-
“Accordingly it is ordered that rents premiums and any other money collected by the defendants from the properties of the Ojora Chieftaincy family, after deducting administrative costs, rates and other levies, shall be paid and deposited at the High Court Registry in Lagos with effect from the month of August, 1986 pending the final determination of the substantive action in this suit.
This is the order said to be incidental to the application refused.
Learned counsel to the 1st set of respondents submitted and I agree entirely with him that the High Court has inherent powers to make orders even if not sought, where such orders are “incidental”‘ to the prayers sought. This follows upon the construction of the expression “and such other order or orders, as this Honourable Court may deem fit to make.”
…………………….P…………………….
Now the word “incidental” is defined as a thing appertaining to or following another – See Osborn – The Concise Law Dictionary 4th Ed. p. 170. Again, Black’s Law Dictionary, 6th Ed. p. 762 defines “incidental” aSS “Depending upon or appertaining to something else as primary.” The word was also similarly defined in Bell Houses v. City Wall Properties Ltd. (1985) 3 All ER. 427. with respect to the objects clauses of a company’s memorandum of association.
Thus a thing is incidental if it follows naturally, appertains to or as a matter of course from the primary matter or depends upon the principal matter. For the order made to be incidental to the order sought, such order made should be dependent on the order sought as its primary or principal. This is not the situation in the order before us. The order sought having been refused there is no primary or principal order to which the order made would be incidental to. The order made can. in my considered opinion, only come within the general powers or the Court to make “any such other order or order” as the Court may deem fit. The phrase contemplates that the ancillary order is predicated upon the granting of the principal order sought. Hence where the principal order sought is refused, the order made cannot come within the scope of the exercise of the power of the Court.
The order sought by the appellant was to restrain the respondents their agents and servants from continuing to collect rent from and in any other manner interfering with the control and management of any of the Ojora Chieftaincy properties. The effect of the order made was a complete negation of the order sought. The respondents were not restrained as sought. The order can therefore not come within the general powers to make any other orders as the Court may deem fit
The Court of Appeal at p. 98 affirmed the order because in its opinion. “The order for the respondent to account for what was in their hands is in my view a proper order that follows in the circumstances of this case” The order was, as I have already said, an enabling one allowing the respondents to continue to collect the rents, instead of restraining them, and a positive order directing them to pay the rents so collected to the High Court. Neither of these orders is incidental to any of the prayers sought, and neither of the parties sought for the order. It can therefore not be allowed to stand. The Court of Appeal was wrong to have affirmed it.
I have come to the conclusion for the reasons I have given in this judgment that the appeal must be allowed. The judgment of the Court of Appeal delivered on the 13th February, 1989 affirming the judgment of Agoro J. is hereby set aside.
The respondents, their agents and servants are hereby restrained from continuing to collect rents from and in any other manner interfering with the control and management of any of (the Ojora Chieftaincy properties by running the Ojora Offices situated at 14 Bale Street. Ajegunle, 101 Ojo Road, Amukoko, Gaskiya and Alafia pending the determination of the substantive suit. Respondents shall give an account to the plaintiffs of the rents so collected and all dealings and transactions with respect to the Ojora Chieftaincy Family property from the 7th April. 1985 till the date of this judgment.
Each set of respondents shall pay cost of this appeal assessed at N 1,000.00 in this Court, and N150.00 in the Court below.
S. M. A. BELGORE, J.S.C: I agree that this appeal succeeds. For the full reasons given for allowing the appeal in the judgment of Karibi-Whyte, J.S.C, which I adopt as mine, I also allow this appeal and give the same consequential orders as in the said judgment.
P. NNAEMEKA-AGU, J.S.C.: This is a further appeal by the plaintiff Chief T.A.L. Akapo, the Ojora of Lagos from the majority decision of the Court of Appeal, Lagos Division, which had dismissed his appeal from the decision of the High Court. The High Court had dismissed his application for –
…………………….Q…………………….
“an order of interlocutory injunction restraining the defendants, their agents and servants from continuing to collect rents from and in any other manner interfering with the control and management of any of the Ojora Chieftaincy properties by running the Ojora Office situated at No. 14 Bale Street. Ajegunle, 101 Ojo Road, Amukoko, Gaskiya and Alafia pending the final determination of this Suit……………..”
“The appellant is a recognised Chief and Head of Ojora Chieftaincy Family. The family has a constitution which came into operation by virtue of a ”Terms of Settlement” dated 17th December, 1964 and filed in suit No. LD/20/56. That constitution established a Family Council which is headed by the appellant. The 1st, 2nd, 3rd and 14th defendants/respondents were among the original members of the Family Council. The plaintiff and the council are under the Terms of Settlement charged with the collection of rents and management of Ojora Family property. In paragraphs 5, 6, 7, 8, 9, 11, 13, 14, 15and 16of the affidavit in support of the motion, it was deposed as follows:-
“5. That the plaintiff was appointed and duly recognised as the Chief Ojora of Lagos under Obas and Chiefs Law, of Lagos State in November, 1977 as per legal Notice No.2 of1978 attached hereto and marked “PAA 2”.
6. That since his appointment and recognition as Chief Ojora of Lagos the plaintiff has been the head of the Ojora Chieftaincy Family and Chairman of the Family Council.
7. That the plaintiff has together with the family council been managing and collecting rents from the family properties in the family office situated at 14 Bale Street, Ajegunle, 101 Ojo Road, Amukoko Road, Gaskiya and Alafia offices until sometime in April 1985 when the defendants broke into the above offices and forcibly and illegally took possession of same and have since been collecting wrongfully and/or unlawfully rents from tenants at the said offices.
8. On the 1st April, 1985 the 1st defendant leading the 6th, 10th and 11th defendants and thugs numbering about 100 stormed and forcibly entered without any just cause the family office at 14 Bale Street, Ajegunle with cutlasses and knives and drove out all the workers therein and seized all the receipt books and cash found on them.
9. In the course of the confusion which followed oneTasi Alaraa clerk whose duty was to issue receipts for tenants was detained at the said office and forced to issue receipts already printed by the defendants on their behalf to tenants who called in the office on that day till the closing time.
11. The defendants carried their atrocious activities at Bale Street Office, Ajegunle and went on rampage in the whole area assaulting and beating people including Alhaji Ayeni and Sikiru Akapo at various Offices at Amukoko, Gaskiya and Alafia.
13. The defendants under the leadership of the 1st defendant after gaining unlawfully the control of the family offices started to manage the same illegally by collecting rents from April, 1985 to date from the family properties without paying anything to the account of the duly constituted family council.
14. The defendants have caused letters to be written to the family tenants demanding rents and claiming to be entitled to receive same on behalf of Ojora Chieftaincy Family.
15. The defendants have by their various publications in the newspapers particularly that of the Daily Times dated 20th September 1985 urged on all family tenants not to pay their rents to the plaintiff and have in fact contended that they are in control of the five offices of the family collecting rents therefrom ..
…………………….R…………………….
16. That I verily believe that the defendants will continue in their tortious acts of illegal collection of the said rents unless restrained by this Honourable Court.”
In their first and second counter affidavits the defendants deposed that of the first 18 members of the family council, only 6 that is four defendants i.e. defendants numbers 1, 2, 3 and 14, the plaintiff and one other Chief survived and that since 1974 the plaintiff has been collecting rents and managing the affairs of the family with non-members of the council, to the exclusion of the four defendants. In the second counter affidavit, some of the defendants deposed to the fact that since 1985 a section of the family had instituted a series of actions seeking a declaration that the plaintiff was no longer the Ojora of Lagos and asking for accounts of the rents and family properties that had come into his possession; that the family council had not been meeting since 1974 because of lack of quorum: that the plaintiff and the remnant of the council can not exercise any power: that although the plaintiff is Chief Ojora de jure he had ceased to be so de facto. They admitted sending letters to tenants of the family properties informing them no longer to pay rents to the plaintiff and the Family Council as now constituted.
In his ruling, the learned trial Judge held that depriving the plaintiff/applicant of his right to collect rents and manage the properties could not be quantified in terms of damages; that all that the plaintiff suffered was loss of esteem within the family; that the order sought would deprive the Ojora family of the effective management of their numerous properties in Lagos and that this outweighed the inconvenience to the plaintiff. Then he ordered that all rents collected and to be collected from the family properties be paid into the High Court Registry in Lagos until the final determination of the substantive suit.
Aggrieved by the ruling and the order, he appealed to the Court of Appeal. On receipt of the notice of appeal, the defendants filed a respondents’ notice seeking to support the decision of the High Court on other grounds, namely:
(i) That the plaintiff was guilty of unreasonable delay in bringing the application;
(ii) That the plaintiff had no leave to sue in a representative capacity:
(iii) That the conduct of the plaintiff was such as to disentitle him to any equitable relief, and
(iv) That the plaintiff did not show that any of his personal rights were being infringed.
Further, the defendants (Nos. 2, 3, 4, 5, 7, 8, 9, 13, 14 and 15) cross – appealed on the Judges finding that the plaintiff would suffer wounded esteem.
After hearing, the Court of Appeal dismissed the appeal by a majority of 2 to 1. In its majority judgment, after agreeing with the High Court that the plaintiff had suffered only wounded pride, it held that his position had been put on the balance by the numerous actions instituted against him by the defendants. It further held that as the machinery for the control and management or tile family property had broken down, it was impossible to maintain a status quo ante bellum. A grant of an injunction would not be in the interest of the family. Rather the balance of convenience lay in allowing the accredited representatives of the family and the general meeting exercise control over the management of the family’s properties.
The plaintiff has appealed further to this Court. Briefs have been filed and exchanged on behalf or the plaintiff and the 2nd – 5th, 7, – 9th, 12th – 15th defendants (hereinafter called the first set of defendants) and also for 1st, 6th, 10th, 11th, 16th and 17th defendants (hereinafter called the 2nd set of defendants). My learned brother, Karibi-Whyte. J.S.C., has set out the issue for determination as formulated by each of the above parties and dealt fully with them. I only wish to add my own comments on a few of them.
It is convenient to consider the 1st issue raised by the appellant, with the 1st and 2nd issues raised by the respondents and the first raised by the 2nd set of respondents i.e. the nature of appellant’s loss, if any, together. The origin of this group of issues is where the learned trial Judge held in his ruling as follows:”
…………………….S…………………….
On the question whether the plaintiff would be adequately compensated by an award of damages. I should point out that the main complaint by the plaintiff was that the defendants had unlawfully deprived him and the Family Council the right to manage and control the Ojora Chieftaincy Family properties as contained in the Terms of Settlement marked Exhibit ‘PAA1’. It seems to me that the deprivation of the right of management and control of Family properties cannot be quantified in terms of damages, since the plaintiff would appear not to suffer any damage, except of course wounded esteem within the Ojora Chieftaincy family.”
Then the Court of Appeal dealing with the same question stated:
“What exactly does the learned Judge mean by wounded pride? To me it sounds like a big name for a simple word that is called disgrace of loss of face within the family, This the learned Judge found difficult to quantify and the appellant has argued that this wounded pride means loss to the appellant to collect rents on the family properties for the maintenance of himself, his sub-Chiefs and the 3 Igas – Palaces. Let me say straight away that wounded pride or what I would like to call loss of face or disgrace does not mean all these. If these are the loses that follow from the wounded pride which the appellant has suffered, it behoves him to aver all these in his affidavit if he wanted injunction.”
Attacking these views the learned Senior Advocate for the appellant pointed out that it was not the appellant’s case before the Court that what he suffered was “wounded pride” or that “wounded pride” meant loss of rents. Rather, that it was that the loss of the rents themselves and the deprivation of the right to management and control of the properties were the actual tangible loss suffered by the appellant which could not be quantified in damages and so that the trial Judge was wrong to have held that it was only wounded esteem that was suffered. Further he submitted that the learned Judge was wrong to have held that the appellant who asserts the right to collection of rents and management for a land owning family would suffer only wounded esteem within the family if he was deprived of that right. This is more so when the affidavit before the Court and the Terms of Settlement show that he would be paid one quarter of the amount collected as a beneficiary, while another one quarter is payable for the three Igas and the whole sum is under his joint control. Uncontradicted affidavit evidence before the Court shows that the appellant and the other two sub-Chiefs depend upon these rents for their normal means of subsistence. He contended that the right of a family head to control and manage the family properties is an important one which cannot be quantified in damages (as the learned trial Judge had recognized). Finally he submitted that merely instituting actions which have not been decided against the appellant is no valid ground for the Court of Appeal coming to the conclusion that the family members would hold him in low esteem.
In his brief learned Senior Advocate for the first set of respondents, Mr. Sofunde, Submitted that the Court of Appeal did not find that the appellant would suffer wounded pride: it did not think that such was in issue. It round that it was only raised in the brier and not in the affidavit, and was at best only psychological. Learned counsel for the second set of respondents. Mr. Onakoya, also submitted that the question of wounded feelings was one that was raised for the first time on appeal and without leave. So, it ought not to have been entertained as it was not raised in evidence before the High Court.
…………………….T…………………….
It appears to me, from the contents of paragraphs 3, 5, 6. 7 and 16 of the affidavit in support pf the motion set out above as well as of the Terms of Settlement exhibited as Exh. “PAA1”, that it was grossly incorrect to have said that the damage suffered by the applicant was mere[y that of wounded pride. For it is clear that he had lost both his right to control and management of the vast family properties which under the Terms of Settlement, is vested in him and the family council of which he is the Chairman. It appears also that, as he is entitled to one-quarter of the rents collected which he is bound to lose as long as the defendants have wrested the control from him, he has also lost substantial income. I also agree that the losses are not easily quantifiable. It is my view, for this type of loss which cannot be adequately compensated for by an award of damages that an order of interlocutory injunction pending the determination of the suit ought to be made in appropriate case. See on this: Obeya Memorial Specialist Hospital & Anor. v. Attorney-General of the Federation & Anor, (1987) 3 NWLR, (Pt. 60) 325, also Abdullah v. Gov. of Lagos State (1989) 1 NWLR, (Pt. 97) 356, Indeed the first principle of the law of interlocutory injunction is that a person does not prima facie obtain such an order to restrain actionable wrongs for which damages are a proper remedy: See Lodon and Blackwall Rly v. Cross (1886) 31 Ch, D 354, at p, 369, But it has always been the law that an action which demands more adequate relief than money can be restrained by an order of injunction: see Lumley v. Wagner (1852) 21 LJ, Ch 898: National Provincial Bank of England v. marshall (1888) 40 Ch. D. 112. So, once an applicant for interlocutory injunction shows that there is a serious issue to be tried relating to the violation of his right and that the damages he may suffer before the final determination of the suit will be such that it cannot adequately be compensated for in damages. the Court. as a guardian of the rule of law, I will if all the other relevant considerations can be resolved in favour of the applicant, grant him the relief of interlocutory injunction. Admittedly, mere inconvenience without a property right in the subject matter of the complaint is not enough to entitle an applicant to the order: See Maxwell v. Hogg (1867) 2 Ch, App, 307, p. 311; also Day v. Brownrigg (1878) 10 Ch.1D. 294., But in the instant case it was a drastic understatement to have said that a man who because of the wrongful act being complained of which he says has deprived him of his right to the management and control of the family property, his entitlement to one-quarter of the rents and other rights and perquisites appendant to the position of head of the family had nothing to lose other than wounded pride. Besides, as the Supreme Court observed in N.S.O, Ebosie v. J.O. Phil-Ebosie & Ors (1976) 7 SC. 119, at pp. 135 – 136, the position of the head of the family under customary law is well-known. He has enormous powers and responsibilities and by no stretch of the imagination can it be rightly said that his is an office of empty dignity. Also, on the materials placed before the Court in this case, it is clear that he would suffer wounded pride as well as substantial proprietary and pecuniary interest for which, taken together, damages cannot be adequate remedy.
Also, I have not been persuaded that the pendency of High Court suits which had not been determined against the appellant was a matter properly relevant to the issue of interlocutory injunction. All that it shows is that there are problems in the family. It was not competent for the Court below to have allowed that fact to obstruct its vision on the issue properly before the Court. To have done so was to prejudge the issues in litigation in the case.
Another point worthy of comment is the issue of staws quo. The Court of Appeal in its majority judgment held:
…………………….U…………………….
“The crucial question in this appeal is whether given the situation as it stands now in the family, is it possible to maintain any status quo ante bellum? With the authority of the appellant under challenge by series of court action by members of the Ojora family and the machinery for the control and management of the family property broken down, the answer to that question must be in the negative. The grant of an injunction in favour of the appellant cannot in these circumstances be in the interest of the family.”
This reasoning has come under severe attack by the learned Senior Advocate for the appellant, Chief Ajayi. He submitted that no credible reason has been given why the status quo ante bellum could not be maintained, He pointed out that the machinery set up by the family under the Terms of Settlement for the collection of rents and the management of its assets is the appellant as Chief Ojora and the Family Council. That machinery was working well until the forcible take over by the defendants. He submitted that the illegal actions by the defendants should never be a ground for refusing an injunction to maintain the status quo. Rather the Court should have restored the situation as it was before the unlawful acts. In the submissions on behalf of the respondents, it was recognized that status quo was the situation before the defendants’ take over. But the gist of the submissions on their behalf is that that situation cannot be achieved and that the defendants, as representatives of the family. have taken over the management and control of the family properties which the appellant and the family council cannot do because they have not been functioning.
To begin with, the literal meaning of status quo ante helium is the state of affairs before the beginning of hostilities. So, the status quo that ought to be maintained in this case is the state of affairs that existed before the defendants’ forcible take over of the management and control of the family properties which constitutes the wrongful act complained of in the application. See Thompson v. Park (1944) 1 K.B. 408. It appears to me that to say as the Court below has said, that it cannot be maintained because the defendants, having forcibly taken over the management and control of the properties, the situation would be impossible to reverse because the authority of the appellant is under challenge is, with respects, to beg the question. After all, the “Term of Settlement” is an order of Court. Such a situation is one which the law of injunction was designed to combat. The attitude cannot be supported for good reasons. For, clearly that runs contrary to the Terms of Settlement which provides that management and control of family properties and collection of rents should be done by the appellant and the family council. So, to rely on the above reason for not granting the application for interlocutory injunction is to surrender the machinery of the law to the aberration of lawlessness whereas law and lawlessness are strange bedfellows under the rule of law. Under the rule of law everything is presumed against the law breaker and, as against the person who asserts a superior right, the law does not give its protection to a trespasser. What is in the interest of the family is not the de facto and unlawful situation which the defendants have forcibly created. Rather it is compliance with the Terms of Settlement – the family constitution which derives its authority from a Court’s decision. Until the defendants can change it by lawful process, it will remain the yardstick of measurement of what is lawful and legal in the management and control of the family properties. That ought to be the starting point in the consideration of the balance of convenience. If the family council cannot work because of lack of a quorum the correct thing to do is to take proper steps to till any existing vacancies and make it work, not to unlawfully jettison the family constitution.
…………………….V…………………….
Finally, I shall say a few words about the order made by Court of Appeal that money collected from rents should be paid into the High Court Registry. Appellant’s complaint in this respect is that the only application before the Court was one asking for interlocutory injunction against the defendant: and that as no one sought the order made, it ought not to have been made. It has the effect of legalizing what the defendants have done unlawfully. On behalf of the respondents it has been argued that what was made was a consequential order, which the Court had power to make as a result of the prayer “for such further and/or other orders as the Court may deem fit.”
There is no doubt that one of the inherent powers of the Court is to make consequential orders. But the question is whether the order made in this case was a consequential or a substantive order. Now a consequential order is one which flows directly and naturally from the decision or order of Court made on the issues in litigation and inevitably consequent upon it. See: Akinbobola v. Plisson Fisko Nig. Ltd. (1991) 1 NWLR (Pt. 167) 270. p. 288. In this case, the application for interlocutory injunction was refused. Having refused it, for the Court to have confirmed the power of the defendants to collect the rents and order that such collected rents shall be paid into the High Court Registry was clearly one which nobody asked for and which cannot be rightly said to be consequential or incidental to the order refusing the order of interlocutory injunction. I agree with learned Senior Advocate for the appellant. Chief Ajayi (SAN) that the cases cited in the respondents’ brief are not in point. On the contrary, it is another classic case of the Court playing “Father Christmas” by granting to the respondent a relief they did not ask for. That cannot be allowed to stand: See Ekpenyong v. Nyong (1975) 2 SC. 71.
For the above reasons and the fuller reasons contained in the judgment of my learned brother. Karibi-Whyte, J.S.C., in his leading judgment, I allow the appeal and subscribe to the orders made in his judgment.
A. B. WALI, J.S.C.: I have had the advantage of reading in advance, a copy of the lead judgment of my learned brother. Karibi-Wyte, J.S.C. I entirely agree with him that this appeal has merit and it must therefore succeed.
For the same reasons contained in the lead judgment, I also allow the appeal and endorse all the consequential orders in the lead judgment, including that of costs.
M. E. OGUNDARE, J.S.C.: I have had the advantage of reading in draft the judgment of my learned brother Karibi-Whyte J.S.C, just delivered. I agree with his reasonings and the conclusions reached by him. I however, want to add a few words of my own.
This appeal arose out of an application for interlocutory injunction brought by the plaintiff at the High Court of Lagos State. The plaintiff had for himself and on behalf of the Ojora Cheiftaincy family (other than the defendants) who are members of the said family claiming:.
“‘(i) That by virtue of the Terms of Settlement the Management and control of the Ojora Chieftaincy family properties is vested in the plaintiff together with the Family Council of which the plaintiff is Chairman.
(ii) That the Plaintiff is duly recognised as Chief Ojora of Lagos by the Lagos State Government under the Qbas and Chief Law and as such he is and has been the Head of the Ojora Chieftaincy family and Chairman of the council.
(iii) That since his appointment and recognition, the Plaintiff has been managing and collecting rents from the family properties.
(iv) That the Plaintiff continued to do so until April 1985 when the Defendants, with a show of actual violence, took over the offices of the family and began by force to unlawfully collect rents from the family properties.”
…………………….W…………………….
Subsequent to the filing of the suit, he brought an application for an Order of Interlocutory Injunction
“restraining the defendants, their agents and servants from continuing to collect rents from and in any other manner interfering with the control and management of any of the Ojora Chieftaincy properties by running the Ojora offices situated at 14 Bale Street, Ajegunle, 101 Ojo Road, Amukoko, Gaskiya and Alafia pending the final determination of this suit.”
The application was supported by an 18 – paragraph affidavit sworn to by one Prince Abiodun Adejiyan who claimed to be the Assistant Secretary to the Ojora Chieftaincy Family Council. Annexed to this affidavit are (1) the Terms of Settlement in Suit No. LD/20/56 between the then head of the Ojora Chieftaincy family and some other members of the family and generally refereed to as the family’s constitution in these proceedings and (2) the Instrument, LSLN No.2 of 1978, approving the appointment of the plaintiff as the Chief Ojora of Lagos.
The 6th defendant, Alhaji Rasaki Ayinla Ojora Swore to a counter-affidavit of 21 paragraphs with annexures of copies of (a), Writs of summons in LD/201/85, LD/221/85, LD/335/85, LD/428/85 and LD/l459/85 (b), Minutes of the Ojora Chieftaincy Family Council Meeting held on 7/12/77 and (c), 8 receipts allegedly issued by the plaintiff in 1985 – 86. The 15th defendant, Imoni Oduosi also swore to a 6 paragraph counter-affidavit to which he annexed copies of more receipts said to have been issued by the plaintiff in his management of the family’s properties.
After a consideration of the fact’s deposed to in the affidavit and counter-affidavits before him and submissions of learned counsel for the parties, the learned trial Judge, Agoro. J. (as he then was) dismissed the application. Being dissatisfied, the plaintiff appealed to the Court of Appeal and that Court, in a split decision (Ademola and Awogu J.J.C.A., Akpata J.C.A (as he [hen was) dissenting) dismissed the appeal. Plaintiff has now further appealed to this Court upon grounds of appeal.
The plaintiff is the Chief Ojora of Lagos, his appointment, effective form 17/11/77 was duly approved by the Lagos State Governor vide LSLN No.2 of 1978 (Exhibit “PAA2” in these proceedings). As Chief Ojora, he is the head of the Ojora Chieftaincy family a land owning family in Lagos. Prior to the plaintiff’s appointment, there had been protracted family squabbles leading to legal actions – the last of which was Suit No. LD/20/56; Lasisi Ajibola Odunsi v. Amina Akindele Ajayi Ojora & 2 Ors. (1961) 1 SCNLR 382; (1961) All NLR 283. Apparently, fed up with the squabbles, members of the family resolved their disputes and entered into Terms of Settlement (Exhibit “PAA 1”) which became the judgment of the trial Court in that case. No sooner the plaintiff’s appointment was made, the Family Council at a meeting held on 7/l2/77 and presided over by the plaintiff made appointments of 9 members of the family to fill vacancies on the council leaving 4 vacancies still to be filled – see Exhibit “SS6” in these proceedings. The 1st defendant was present at this meeting and took active pan. It would appear that of the 18 original members of the council named in Exhibit “PAA 1” only 5 that is, the plaintiff, 1st, 2nd, 3rd and 14th defendants were alive as on 7/12/77 when that meeting was held. It would also appear that the plaintiff and Family Council including the 9 new members continued to manage the family properties until 1/4/85 when the 1st, 6th, 10th and 11th defendants vi et armis took over control of the management of the family properties to the exclusion of the plaintiff. The defendants swore that the plaintiff had been removed from office at a general meeting of the family held on 22/4/84. The plaintiff subsequently instituted an action and applied for an interlocutory injunction. It is the refusal of that application both by the trial High Court and the Court of Appeal that has led to the appeal now before us.
…………………….X…………………….
In the appellant’s written brief filed by his learned counsel, pursuant to the Rules of this Court, the following issues are set down as calling for determination in this appeal to wit:
“(i) Whether the Court of Appeal was right in holding that the Appellant would suffer only wounded pride if the injunction was refused.
(ii) Whether the Court of Appeal was right in holding that the grant of an injunction would not be in favour of the Ojora family and that the balance of convenience lay in favour of the defendants and in letting the General Meeting of the family continue to act as it had been doing.
(iii) Whether [he Court could have maintained the status quo by granting the injunction sought.
(iv) Whether the Court of Appeal should have considered the effect of the grant of an injunction on the other suits instituted by the defendants against the appellant.
(v) Whether the Court should have upheld the Order that rents be paid into the High Court Registry when such an order was not sought by either party.
(vi) Whether the Court of Appeal was right in considering whether the appellant had delayed in bringing the application for injunction or in holding that he had so delayed and that granting the injunction would lead chaos.
(vii) Whether it would be inequitable to grant the injunction sought because the appellant had not refuted the allegations made against him in the affidavits of the defendants.”
The 1st 6th, 11th and 17th defendants” in their joint respondents; Brief, state the issues as follows:
“1. Whether the Court of Appeal was right in considering the issue of wounded pride when the said issue was not part of the evidence before the trial Court.
2. Whether the Court of Appeal was right in holding that the status quo ante bellum:
(a) which the Injunction is meant to prevent would be ‘a state of affairs where the Appellant as Chief Ojora and the Family Council created under the Terms of Settlement would together control and manage the family properties.’
(Italics for emphasis only)
(b) as stated in (a) above, can still be maintained in view of the break down in the machinery for the control and management of the family property and the series of Court actions by member of the family challenging the authority of the Appellant.
(c) If the answer to (b) above is in negative whether the Court of Appeal rightly held that the control and management of the family property must reside in the accredited representatives of the family appointed at a General Meeting.
3. Whether the Court of Appeal rightly held that the conduct of the Appellant, that is, delay in bringing the application, and the undenied allegations of impropriety are relevant issues in determining the grant/refusal of the injunction.
4. Whether the Court of Appeal was right in upholding the Order that rents be paid into the High Court Registry.”
1 The remaining defendants, that is. 2nd – 5th, 7th – 9th, 12th – 15th defendants filed a separate joint respondents’ Brief where, in they set down 6 issues. to wit:
…………………….Y…………………….
“1. Whether the Court of Appeal was right in holding that the grant of an injunction would not be ill favour of the Ojora family and that the balance of convenience lay in favour of allowing the Respondents alleged to be in control, the control and management of family properties having regard to the fact that ‘rents premiums ‘and any other money collected’ after deducting administrative costs, rates and levies were to be paid into Court.
2. Whether the Court could have maintained the status quo by granting the injunction.
3. Whether the Court should have upheld the order that rents be paid into the High Court Registry when such an order was not sought by either party.
4. Whether the Court of Appeal was right in considering whether the Appellant had delayed in bringing the application for injunction.
5. Whether the Court of Appeal was right in holding that the delay by the Appellant in bringing his application for injunction was sufficient reason to refuse the injunction.
6. Whether it would be inequitable to grant the injunction sought because the Appellant had not refuted the allegations made against him in the affidavits of the Respondents.”
From the issues formulated in the various briefs filed by the parties, it would appear that the issues to be determined can be brought under the following compartments:
1. The nature of the damage suffered by the plaintiff
2. Maintenance of the stauus quo ante bellum
3. Balance of convenience
4. Plaintiff’s conduct and equitable consideration thereon.
5. The propriety of the order made by the trial Court and affirmed by the Court of Appeal.
1. The Nature of the Damage suffered by the Plaintiff:
“The learned trial Judge had observed in his Ruling thus:
“On the question whether the plaintiff would be adequately compensated by an award of damages. I should point out that the main complaint by the plaintiff was that the defendants had unlawfully deprived him and the family council the right to manage and control the Ojora Chieftaincy Family Properties as contained in the Terms of Settlement marked Exhibit “PAA 1″. It seems to me that the deprivation of the right of management and control of family properties cannot be qualified in terms of damages, since the plaintiff would appear not to suffer any damage, except of course wounded esteem within the Ojora Chieftaincy family.”
Both the plaintiff and the 2nd set of defendants appealed against this finding. Commenting on the above passage Ademola, J.C.A. in his leading on his lead judgment which Awogu J.C.A. agreed, said:
“What exactly does the learned Judge mean by wounded pride? To me it souds like a big name for a simple word that is called disgrace or loss face within the family. This the learned Judge found difficult to quantify and the appellant ahs argued that this wounded pride means loss to the appellant to collect rents on the family properties for the maintenance of himself, his sub-Chief and the 3 Igas – Palaces. Let me say straight away that wounded pride or what I would like to call loss of face or disgrace does not mean all these. If these are the losses that follow from the wounded pride which the appellant has suffered, it behaves him to aver all these in his affidavit if he wanted injunction.
…………………….Z…………………….
It does not necessarily follow that the loss of face or wounded pride within the family should necessarily warrant the issue of an injunction. For the learned Judge limited the wounded esteem suffered by the appellant within the family. It may be a different thing if the disgrace of wounded esteem were to be a different thing if the disgrace of wounded esteem were to be to the public at large. However, as the brief of the respondents contended on this issue, the matter of wounded pride as a loss was not raised in the affidavit of the appellant and the question of wounded pride is essentially a physiological one and not a matter of material loss.”
(Italics are mine).
It would appear that what the Court of Appeal was saying was that loss of face in the family alone would not suffice; there was no evidence of any pecuniary loss the plaintiff suffered as a result of the conduct of the defendants to justify an injunction being granted in his favour.
Chief G.O.K. Ajayi, SAN for the plaintiff argues in his brief that it was not plaintiff’s case before the Court of Appeal that “wounded pride” meant loss of rents, etc. but rather that the loss of-rents, etc. was the actual tangible loss suffered by the plaintiff and which could not be quantified in damages and further that the trial Judge was wrong to have held that it was only wounded esteem that was suffered. He argues further that:
“It was a gross error on the part of the Court of Appeal to hold that a Plaintiff who asserts a right as head of a landowning family to collect rents and manage family property as against some other members of the family would suffer no damage except wounded esteem within the family – or disgrace, or loss of face – if he was prevented, by other members of the family, from exercising these rights.
This is more so when the affidavit evidence before the Court, particularly the Terms of Settlement (at pages 11 – 18) exhibited to the Plaintiff’s affidavit in support of his application shows clearly that after the receipt of rent from the family property, the Plaintiff is entitled to be paid one quarter of the same as a beneficiary. Another one quarter is payable to the three Igas and this sum is also under his joint control.
It was clear from the affidavit evidence (and this was not contradicted by the Defendants) that the Appellant and the two sub-Chiefs depended on these rents for their normal means of subsistence. Thus the refusal of the order of injunction would have the effect of depriving the Appellant and the two sub-Chiefs of their means of subsistence indefinitely. Being thus deprived, the Appellant and his sub-Chiefs would have nothing to share amongst the family members and would have no money for the maintenance of their palace or fulfillment of other family obligations.
Furthermore, it is submitted that the right to manage and control the property and funds of the family is one of the most important attributes of the Head of a family. To be deprived of the same is to be reduced – as head of the family – to nothingness; a loss that cannot be quantified in damages (as the learned trial Judge had recognised). It is respectfully submitted that this is perhaps the strongest ground for granting the injunction sought by the Plaintiff.”
…………………….AA…………………….
The 1st sets of defendants contend in their brief that the question of wounded esteem is an importation into the evidence by the trial Judge and ought not to have been considered by the Court of Appeal. The 2nd set of defendants contend that the issue as framed in plaintiff’s brief does not arise for consideration as the Court of Appeal True enough, the question of wounded esteem was the learned trial Judge’s view of what he considered the plaintiff suffered. There is nothing in the affidavit (and annexures thereto) in support of plaintiff’s application to suggest that he based his case on such an intangible consideration. Exhibit “PAA 1” forms part of plaintiff’s case. Clauses 15 – 18 thereof deal with the family account and distribution of income. They read:
“15. All moneys belonging to the Ojora Chieftaincy family shall be kept in a licensed Bank in Lagos in the name of the Council.
16 All moneys payable to Chief Ojora in his capacity as head of the Ojora Chieftaincy Family by or under any law including money payable for the compulsory acquisition of family land or other properties shall be paid to the Bank account of the family. Provided that the family council shall without delay pay to the ex-officio members such proportions of any such moneys as are due to them personally in accordance with these Terms of Settlement.
(1) The Bank account kept in the name of the Council shall be operated by Chief Ojora and the other two ex-officio members of the Council.
(2) The provision to clause 13 shall apply to this clause.
18. Distribution of Income
All moneys accruing to the Ojora Chieftaincy family as income from its properties and assets shall be distributed in the following manner:-
One – fourth to Chief Ojora
One – eighth to Chief Aro
One – eighth to Chief Odofin
One – fourth to the family, and
One – fourth to the three Igas.”
Now, by paragraphs 13 and 17of the supporting affidavit Prince Adejiyan averred:
13. The defendants under the leadership of the 1st defendant after claiming unlawfully the control of the family offices started to manage the same illegally by collecting rents from April.l985 to date from the family properties without paying anything to the account of the only constituted Family Council.:-
17. That irreparable damage will be done if the defendants are not restrained since they are collecting rents to which they have not rendered any account to the plaintiff as the head of the family or the Family Council:’
The paragraphs have not been denied by the defendants. It is. Therefore, self evident on the facts that since the takeover by the defendants of the control and management family properties the plaintiff has been denied of his rights under clause 18 of the family’s constitution (Exhibit “PAA 17).With profound respect held hoth the learned trial Judge and the majority Justices of the Court of Appeal advert that minds to clauses 15 – 18 of Exhibit “PAA 1” and paragraphs 13 and 17 or the supporting affidavit, the learned trial Judge would not have concluded, as he did, that the “Plaintiff would appear not to suffer any damage, except of course wounded esteem within the Ojora Chieftaincy Family.” Nor would the Court of Appeal have observed, as it did, that “If these (that is, loss to the appellant to collect rents on the family properties for the maintenance of himself, his sub-Chiefs and the 3 Igas – Palaces) are the losses that follow from the wounded pride which the appellant has suffered, it behoves him to aver all these in his affidavit if he wanted injunction.”
…………………….AB…………………….
It follows from all I have been saying that there seems to be a misconception by the two lower Courts of the plaintiff’s case. I am of the firm view that if these Courts had properly understood plaintiff’s case and evaluated the evidence they would have come to a different conclusion. The conclusion I reach is that Plaintiff stands to lose more than mere wounded esteem but also the rights accruing to him under clause 18 of the Family’s Constitution – Exhibit “PAA 1”.
2. Maintenance of the Status Quo Ante Bellum:
I have given careful consideration to submissions made by learned counsel in respect of the question of maintaining the status quo bellum. What is the meaning of this phrase? It can only mean the situation or position prevailing before the defendants’ conduct complained of by the plaintiff. What did the Court below say on this? The Court of Appeal per Ademola J.C.A. said: “The appellant said that the application for interlocutory injunction was brought to protect status quo. The status quo in this case would be a state of affairs where the Appellant as Chief Ojora and the family council created under the terms of settlement would together control and manage the family properties.
The crucial question in this appeal is whether given the situation as it stands now in the family, is it possible to maintain any status quo ante helium? With the authority of the appellant under challenge by series of Court action by members of the Ojora family and the machinery for the control and management of the family property broken down, the answer to that question must be in the negative.”
With profound respect, I think the learned Justice of Appeal gave a wrong answer True enough, the authority of the plaintiff was then being challenged in a series of Court actions but none of those actions had terminated in favour of the defendants. Not only that; the learned Justice of Appeal failed to consider the conduct of the defendants in disturbing the status quo ante. They took control vi et armis – and this has not been denied. In Thompson v. Park (1944) 1 KB 408, T and P by an agreement amalgamated the schools owned by each and under the agreement T licensed P to enter, with some twenty five boys, on his (T’s) school premises. Differences arose between the two and T informed P that after the Christmas term he would not allow P to return with his boys and requested him to remove his furniture from T’s premises, and, on P failing to do so removed it himself. In January, P forcibly re-entered the premises. It was held by the Court of Appeal (England) that even on the assumption that T had been guilty of breach of contract P was only a licensee, and that, as Thad revoked the licence, P was a trespasser and had no right to re-enter the premises or remain on them, his remedy, if any, being for damages for breach of contract. and an interim injunction must be granted to restrain P from further trespass and ordering him to remove his furniture and pupils.
Goddard LJ. (as he then was) in his judgment in the case said at pages 409 – 410 of the report:
“If the defendant thought that he had a grievance which could be lawfully asserted the Courts were open to him. I am not saying what the result of any application by him would have been, for though this is not the sort of agreement which any Court could specifically enforce for the Court cannot specifically enforce an agreement for two people to live peaceably under the same roof – yet, of course, if the contract is broken, the defendant has got a common law remedy in damages, which, if he is right, might be heavy. The defendant, however, did not seek the intervention of the Court, but took the law into his own hands and remedied the grievances under which he felt he was suffering in a manner which seems to me to have been wholly deplorable, all the more so when one considers that he is in charge of small boys at a preparatory school and ought to be inculcating into them a respect for authority and discipline. It appears to me that on his own showing he has been guilty at least for riot, affray, wilful damage, forcible entry and, perhaps, conspiracy.
…………………….AC…………………….
Having got back into the house, to use the words of the statute, 5, Rich. ‘with strong hand’ (and) with’ multitude of people, ‘he has established himself in the house, and he then says:
‘I ought not to have an injunction given against me to make me go out because I got back here and got my boys back and, therefore, I want the status quo “preserved'” The status quo that could be  preserved was the status quo that existed before these illegal and criminal acts on the part of the defendant. It is a strange argument to address to a Court of law that we ought to help the defendant who has trespassed and got himself into these premises in the way in which he have done and to say that that would be preserving the status quo and a good reason for not granting an injunction.”
Du Parcq L.J. in his own judgment at pages 411-412 of the Report said:
“I do not know how this case is likely to be decided when it is heard. It may be found that the plaintiff has broken the agreement or that the defendant wrongfully repudiated the agreement, that the plaintiff must pay heavy damages to the defendant, or that the defendant must pay heavy damages to the plaintiff. But there is one thing of which we can be perfectly certain, and that is that the moment any Court has to adjudicate on this matter and consider the facts it must say that when the defendant entered the plaintiff’s premises on January 15 he had no right to do so and that from that time he has remained there without having any right whatever to be there. When it is said that we should leave things as they are until such time as it is possible to hear the case, I ask: Why should we?
The defendant knows as well as any of us that a little learning is a dangerous thing, and he had that small degree of learning about the law which led him into disaster. or, I may say, into misconduct. He says in his affidavit: ‘I had been advised and am still advised that the actions or the plaintiff were illegal, wrongful and in breach of contract. ‘What he did not understand was that it does not follow that, because one contracting party is breaking his contract, the other party is entitled to compel him, by force and by violence, to carry it out. I think that if the defendant had reflected for a few minutes he would have seen that, if the law permitted that the rule of law in this country might very soon cease to exist. He did not understand the distinction which my Lord has now, I hope, made perfectly plain to him between a right to do a thing and a power to do a thing. There is not the slightest doubt that the plaintiff had the power to say: ‘You shall not come into my house.’ and thereafter, if the defendant did go in, he was a trespasser. It is as a trespasser and a wrongdoer that he has remained there, and we are both agreed that the sooner he get out the better. I agree that this injunction ought to be granted.”
And in Obeya Memorial Specialist Hospital & Anor v. Attorney-General of the Federation & Ann”. (1987) 2 NSCC 961, 972 (1987) 3 NWLR (Pt.60) 325 Obaseki J.S.C. delivering the lead judgment of this Court also deprecated the seizure of property vi  et armis. He said:
  “The seizure of the hospital buildings by heavily armed Army and Airforce personnel from unarmed law abiding citizens should not be encouraged or applauded in a democratic society such as ours where the Rule of Law reigns. It is more honourable to follow the due process of law. It is also more respectful and more rewarding to follow such a course.”
What are the facts of the case on hand? The plaintiff is the Chief Ojora of Lagos and in that capacity is the head of the Ojora Chieftaincy family. The family has a constitution (Exhibit PAA1). The defendants claimed that the family has removed the plaintiff as head of family. Assuming this to be the case and the removal valid, there would result a vacancy in the office of the head of family. Clause 6 of the family’s constitution provides for such an occurrence, it reads:
…………………….AD…………………….
“6.(a) The person holding the office of Chief OJora far the time being or in the case of a vacancy in such office, any of the other ex-officio members selected by the Council or in case all the ex-officio offices are vacant, shall be the Chairman of the Council.
(b) For the avoidance of doubt it is hereby declared that any person who occupies or is appointed to occupy the office of Chairman in accordance with the provisions of this clause in consequence of a vacancy in the office of Chief Ojora shall cease to be Chairman of the council as soon as such vacancy is filled and any person who similarly occupies or is appointed to occupy such office of Chairman in consequence of a vacancy in both of the other ex- officio offices shall cease to be Chairman of the council as soon as any of the said offices is filled.”
The defendants, in compete violation of their family’s constitution and notwithstanding that they had instituted various actions again”, the plaintiff, which actions were yet to be decided by the Courts, took the law into their hands and violently took over control and management of the family’s properties. Must a Court of law clothe their illegal actions with semblance of validity by refusing the plaintiff an interlocutory injunction? I rather think not. The status quo ante, in this case, must be the position whereby the plaintiff and the family council managed the family properties before the violent take over by the defendants. The position taken by the Court of Appeal cannot, in my respectful view, promote the cause of the rule of law in this country. This Court frowned on such conduct in Ojukwu v. Attorney-General of Lagos State (1986) 3 NWLR. (Pt. 26) 39 and I can see no reason why we must smile at such conduct in this case.
3. Balance of Convenience:
On this issue, the learned trial Judge had this to say:
“As regards the balance of convenience, the decision of the Court whether in favour of or against an injunction, will inevitably involve some disadvantage to one or the other side which damages cannot compensate.
The extent of this uncompensatable disadvantage either way is a significant factor in determining the balance of convenience. In the present application, it seems to me that an injunction against the defendants would deprive the Ojora Chieftaincy family the effective management and control of their numerous landed properties in the Lagos State. This, in my view, is likely to be more serious than the prejudice caused to the plaintiff by the defendants continuing to manage, control and collect rents from the Ojora Chieftaincy family properties pending the trial of the substantive action when the merits would be finally determined. I have therefore decided that the balance of convenience is in favour of the defendant since I am satisfied that withholding the injunction would do less harm to the plaintiff than wrongly granting the injunction would do harm to the defendants as members of the Ojora Chieftaincy Family.”
The Court of Appeal, per Ademola J.C.A. expressed the following view:
“The balance of convenience in the control management of the family property must in my view reside in the accredited representative of the family at the general family meeting. The respondents claimed they have been so appointed. This is not controverted. The family meeting is the primary organ that creates institution such as the head of the family as well as the Family Council, and since both the head of the family and the Family Council cannot function as a body under the Family Constitution, the control and management of the family property must be in accredited representatives of the family.
It is on this reasoning that I believe the Judge was right to have refused the appellant the injunction against the respondents and that for the time being the accredited representative of the family should have the control and management of the the family properties.
Between them and the appellant the balance of convenience is in favour of the respondent rather than the appellant.”
With respect, I cannot accept either view. For both views seem to overlook the dominant position of the head of family under customary law and under the Ojora family’s constitution.
…………………….AE…………………….
I start first with the position of the head of family under customary law. This is rather lucidly expressed by Graham Paul J. in Balogun v. Balogun (1935) 2 WACA 290, 299, in these words:
“The Courts of Nigeria are perfectly familiar with the position of the head of a family under native law and custom – particularly in Lagos, although the main principles do not differ very materially in other parts of the country. The head of the family is in charge and control of the family property; he collects the revenue of family property; he has to make certain disbursements out of the family revenue for family purpose, upkeep of the family property, funeral, marriage and baptism ceremonial expenses of members of the family often involving the entertainment of strangers, litigations on behalf of the family, education of children and so on. The head of a family has very considerable and onerous duties to perform, varying in degree of course according to the size, wealth and importance of the family.”
This dictum of Graham Paul J. was cited with approval by this Court in Ebosie v. Phil-Ebosie (1976) 7 sc. 119. I shall now refer to a decision of the Federal Supreme Court in a case involving the Ojora Chieftaincy Family. In Lasisi Ajibola Odunsi (Chief Ojora of Lagos) v. Aminu Akindele Ajani Ojora & 2 Ors. (1961) All NLR 283, (1961) 1 SCNLR 382 the facts, which are not dissimilar to the facts of the instant case, are these: The appellant, Chief Lasisi Ajibola Odunsi had been capped by the Oba of Lagos as an Idejo white Cap Chief with the title of Chief Ojora and was recognised as such by the Governor-General under the Lagos Government Law 1953. The respondents contended that, although the appellant had been capped, the 1st respondent and not he, is the person elected by the, the family to manage its property and that it is possible under Native Law to have two Chiefs with the title of Chief Ojora; one of whom enjoys the social and other privileges of capping, and the other of whom manages the property, and that the 1st respondent is the property-managing Chief Ojora. The respondents further contended that in consequence of the terms of settlement in an action between one Bakare Faro, the last undisputed Chief Ojora, and other members of the family, the holder of the office for the time being is obliged to act in concert with the other members of a family council consisting of Chief Ojora and twenty others; and that since the 2nd and 3rd respondents are members of the family council the action of the appellant for an injunction to restrain the respondents from alienating the lands and properties of the Ojora family without his consent, and for an account, cannot succeed against them.
The trial Court held that under Native Law there could be two Chiefs and that the 1st respondent was entitled to manage the family property and also was entitled to use the title of Chief Ojara; that the interpretation of the settlement therefore did not arise. The appellants claim was dismissed. He appealed to the Supreme Court. It was held, inter alia, that under Native Law and Custom, once a White Cap Chief has been capped by the Oba he is the only person empowered to manage, and, subject to the usual consents, dispose of the family property. As the Appellant had been capped by the Oba of Lagos as a White Cap Chief he exclusively is entrusted with the management and disposal of the family properties subject to whatever consents the Native Law required. Brett, F.J. delivering the judgment of the Court observed at page 286 of the Report:
“In the Court below the respondents took the opportunity of canvassing the whole of the circumstances leading up to the capping of the appellant as Chief Ojora, and. having secured from the Oba the admission that he has no power to force a Chief on a family if they do not want him, what they were really endeavouring to do was to discredit the appellant as ChiefOjora for any purpose. The appellant submits that once he has established that he has been capped on the authority of the Oba and recognised by the Governor General the Court is debarred from inquiring further into the matter by the Chieftaincy Disputes (Preclusion of Courts) Ordinance, 1948 (No. 30 of 1948).
…………………….AF…………………….
On the settlement, the Court, per Breit F.J. again observed at pages 286 – 287:
“would go further and say that I do not regard it as necessary in any event to consider the effect of the settlement. If the appellant is entitled to exercise the usual powers of the Chief or family head in the management of the family property, he is also entitled to the relief he asks for, since it is not pretended that the settlement enables the respondents, or/the family council less the Chief, to dispose of the family property without the consent of the Chief. If, on the other hand, the appellant is not entitled to exercise any powers of management over the family property then he cannot obtain any relief, whatever the effect of the settlement may be. If this view is correct, the only question which the Court has to decide is whether the appellant has the usual powers of the Chief or family head.”
On the effect of capping, the Court held at page 287 – page 288:
“As regards the effect or capping, the appellant relies on the judgment of Petrides. J., in Akodu v. Omodiju (1927) 8 NLR 55., Graham Paul, J., in Aiyedun v. Oresanya (1938) 141 NLR 116, as showing the powers possessed by a White Cap Chief as such, and as explaining the circumstances in which, if for any reason no member of the family between capped as a White Cap Chief, there may be a head of the family exercising powers of management over the family property. Native law and custom being a question of fact in an action in the High Court, it is true that the findings in these cases are not binding as precedents, and it is also true, as has been pointed out by Mr. Oseni on behalf of the respondents, that however learned and experienced the Judges whose judgments are relied on may have been, they could only act on the evidence which the parries in the cases concerned chose to call before them. Nevertheless, both on the authority of those decisions, and as a matter of probability I would say that the burden of proving that there may be simultaneously in one family a Chief who has been capped but has no rights of management over the family property, and another Chief with the same title who has not been capped built manages the family property, was on those who asserted it, and I am unable to agree with Bennet, J. that the respondents discharged that burden. It is one thing to show that a person may have the powers of management of a family head without having been capped, and quite another thing to show that capping confers nothing but social status. The respondents have been able to point to no precedent for the state of affairs which they contend is permitted by native law and custom, although family disagreements of this kind have not been uncommon, and the novelty of the submission tells strongly against it. I have already said that the respondents introduced a number of matters which were not strictly relevant, and although Bennett, J., did his best to define the issues and restrict the parties to them I think, with respect, that after a trial in which the evidence took up fifteen days, spread over four and a half months, and addresses of counsel six days, he may have allowed his feeling that appellant had no right to have been capped to influence his decision as to the effect of capping.
If it is correct that the other White Cap Chiefs were overhasty in advising the Oba to approve the capping of the appellant, that is not a matter which the Court can correct, and for the reasons which I have given I am not satisfied that it alters the effect of capping. Mr. Oseni drew attention to a passage in the judgment in Aiyedun v. Oresanya where reference was made to natural justice, but I do not think the learned Judge was using the expression in its technical sense, and as far as what I may call public policy is concerned it is just as important that members of the public should know that they may safely deal with a White Cap Chief as the person empowered, subject to the usual consents, to dispose of the family land, as that the interests of the family should be secured. The Courts have always been ready to preserve the legitimate interests of land-owning families, as many reported cases show, and I should regret it if it were necessary now to introduce a new ground of uncertainty into a matter in which sufficient uncertainty exists already.”
…………………….AG…………………….
It is clear from the authorities I have referred to above that the plaintiff as the Chief Ojora has the legal right of control and management of all properties of the Ojora Chieftaincy Family and. subject to the necessary consents, may alienate such properties. The defendants would, under customary law, not have such power unless delegated to them by the family with the consent of the plaintiff. The latter is not the case here. Talking of balance of convenience, therefore, it would seem that this should be in favour of the party possessing legal rights as against a party who has no such rights.
It would seem that the decision in Odunsi v. Ojora & Ojora & Ors. (supra) prompted the same parties in Suit No.LD/20/56 to come to amicable terms of settlement in 1964. as was previously done in a much earlier case
At the stage at which the case is we must avoid the temptation of deciding the issues in controversy in the main action. I shall therefore not go into a detailed examination of the Terms of Settlement (Exhibit “PAA 1”). Suffice it to say that I do not find anything in it to whittle down the customary law powers of the plaintiff in respect of the family properties of the Ojora Chieftaincy Family. From Exhibit “SS 6” one cannot escape finding that there has been in existence since December 1977 a Family Council whose members, except 1st, 2nd, 3rd and 14th defendants, have been co-operating with the plaintiff in effective control and management of the family properties until the violent takeover by the defendants in April 1985. The learned trial Judge could, therefore, not be right when he held that “an injunction against the defendants would deprive the Ojora Chieftaincy Family of the effective management and control of their numerous landed properties.” On the contrary such an injunction would restore the position to legality until the issues in controversy in the main action are resolved by the Court. Nor can I accept the view of the Court of Appeal that the “Family Council cannot function as a body under the Family Constitution.” This appears not to have been borne out on the totality of the affidavit evidence adduced at the trial. Paragraph 7 of the counter-affidavit of Alhaji Rasaki Ayinla Ojora read: “That attached and marked Exhibit ”SS 6” is a photocopy of the minutes of a purported family council meeting held on 7th December, 1977 at which this issue of amendment was raised and also new members purportedly admitted.”
Paragraphs 10 and 11 of the said affidavit speak of “the Plaintiff and the (or his) purported Family Council” 1st defendant was a party to the appointment of new members of this “purported council” – see Exhibit “SS 6”. The 15th defendant in his counter-affidavit at paragraph 5 thereof also speaks of “a purported council”. Thus, they are not saying that there is no council working with the plaintiff; it is the validity of that council they dispute and this issue can only be resolved at the trial of the action.
It is my conclusion that on the affidavit evidence before the trial Court and having regard to the rights and powers of the plaintiff both under customary law and Exhibit “PAA 1”, the balance of convenience must be resolved in his favour. And as it is not in dispute – the two lower Courts so found – that there are serious issues to be tried at the hearing of plaintiff’s substantive action, the interlocutory injunction sought by him ought to be granted: Obeya Memorial Specialist Hospital & Anor. v. Attorney-General of the Federation (1987) 2 NSCC. 961 (1987) 3 NWLR (Pt.60) 325.
My learned brother, Karibi-Whyte, J.S.C. has dealt adequately with the remaining two issues relating to the plaintiff’s conduct and equitable considerations thereon and the propriety of the order made by the trial Court and affirmed by the Court of Appeal. I need not go over them again. I agree entirely with his reasonings on them and I adopt them as mine.
For the reasons given in this judgment and the more detailed reasons given in the lead judgment of my brother Karibi-Whyte J.S.C., I too agree that this appeal be allowed and I hereby allow it. I subscribe to the orders, including the order as to costs made in the said lead judgment.
Appeal allowed.
Appearances
Chief G.O.K. Ajayi, SAN (with him R.O. Okunola (Mrs) and S.O. Ige) For Appellant
AND
O. Sofunde, SAN (with him T.O. Onagoruwa (Miss)
Segun Onakoya For Respondent