"I have in the circumstance given a sober and dispassionate consideration to the arguments of the learned senior counsel, on the issues addressed, and carefully studied the case law cited. My simple answer to the two issues raised and argued is that, it seems the learned silk closed his eyes to the nature of the application.
If I correctly understand the first issue canvassed by the learned silk is that the order made by the lower Court granting the interlocutory injunction was in the circumstance inappropriate, the application being that which bothers on land which by its nature is not perishable. In making this argument, the senior counsel relied on the case of Isyaku vs. Masters (2003) 5 NWLR (pt. 814) 443 at 471, where it was held that:
"It is however trite that when a subject matter of the substantive litigation is not perishable commodity the better course for the Court to adopt when faced with an application for interlocutory injunction is to accelerate the proceeding and hear the substantive action with a view of saving time and inconvenience instead of hearing or taking arguments on the interlocutory injunction. See Governor of Imo State vs. Anosike (1987) 4 NWLR (pt. 66) 663 @ 672.........it is my humble view that the subject matter (res) in the instant case which is land is not perishable commodity rather it is an unmovable property as opposed to corporeal."
He also argued on the authority of the case cited, that where the interest or possession of the subject matter of the application will be affected adversely, the application cannot be granted. The prayer of the respondents before the lower Court was for "an order of interlocutory injunction restraining the defendants/respondents by themselves, servants, agents, privies or anyone acting on their behalf from building, constructing, developing, continuing development, entering the land or changing the character of the vacant portion of the land in dispute in any manner whatsoever pending the determination of the substantive suit.
Appellants now state that the lower Court ought to have abided by the principle laid down in the case of Isyaku vs. Masters (supra), the res in the action being land which is not perishable. I have earlier captured the prayers of the applicants before the lower Court. The fear expressed by the applicants, as can be seen on their affidavit evidence is premised on the fear of breakdown of peace and order between the two communities laying claim to the vacant land shown by Exhibits B and C. It is trite that the essence of the grant of an interim injunction is the protection of the existing legal right or claimed legal right from unlawful or perceived unlawful invasion by the adversary.
From the affidavit evidence before the lower Court, it is clear that a piece of land is in contention between two communities. It is also clear that the ownership of the said land is in contest before the Court, which invariable is not on seat to attend to the feuding parties because of the vacation period. The Court cannot shut his eyes and knowledge of the incessant communal clashes over land all over him, and I do agree with the lower Court, that the threat of the breakdown of public peace between the two communities, should weigh more in the mind of the judge, as against the legal principle expressed in the case of Isyaku vs. Masters (supra), owing to the circumstance of the case.
A careful examination of the order granted shows that the order was granted pending the determination of the case. Indeed from the records, the order granted since the 12th of October, 2012, ought ordinarily to have been abated all this while, since the substantive case must have been determined. In that regard the appellants' contention that the lower Court acted on extraneous matters cannot also be sustained. Tobi JSC in the case of UTB Ltd vs. Dolmetsch Pharm. (Nig.) Ltd (2007) 16 NWLR (pt. 1061) 520, considered what a Court should take into consideration in granting an application of interim injunction, which includes, the existence of real urgency, and a right by the applicant to prevent the violation of which he seeks to prevent, and to seek that the stage of proceedings in which they are in, be maintained, the gravity of the injury and loss.
I am at one with the lower Court that going by the affidavit evidence before him and the circumstance and peculiarities of the case before him, the Court granting an interlocutory order for the preservation of peace between the two communities is in consonance with the Court's duty and therefore unimpeachable. I take refuge in the words of my Lord I. T. Muhammad JSC, in the case of Okpe vs. Fan Milk Plc (2017) 2 NWLR (pt. 1549) 282 @ 311, where he stated thus: "Furthermore, interest of justice connotes such interests, aspirations and or attempts to achieve justice in a given case or situation. The whole goal is the achievement of justice. Justice is fair and proper administration of laws, whereas anything done in the interest of justice is done in pursuance of fairness to all the parties in a case without compromising the principle of the law and evidence under consideration which as of right entitle successful party to judgment."
I am also of the firm view that the grant of the applicants' order of interim injunction to the determination of the case, would not prejudice either of the parties, it being clear that the injunction is in respect of the area of land not under development."
Per BARKA, J.C.A. IN ABOYEJI & ANOR v. ATOYEBI & ORS CITATION: (2018) LPELR-44975(CA)
