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Regd. Trustees of Mission vs. All States Trust Bank Plc.

THE REGISTERED TRUSTEES OF MISSION

V

ALL STATES TRUST BANK PLC

PAUL ITYOAPINE ISEGBA

CAD (NIG.) LIMITED

COURT OF APPEAL

( JOS DIVISION )

OLUDADE OLADAPO OBADINA, JCA ( Presided )

AMIRU SANUSI, JCA ( Read the Lead Judgment )

IKECHI FRANCIS AGBUAGU, JCA

CA/J/197/2001

MONDAY, 7TH APRIL, 2003

APPEAL - Discretion - Exercise of by trial court - When appellate court will interfere - Special circumstances for so doing

CASE LAW - Relevance of foreign decisions in Nigeria

COURT - Discretion - Exercise of by trial court - When appellate court will interfere - Special circumstances for so doing

COURT - Findings of fact by trial court - Trial court relying on extraneous facts in its findings - Impropriety of

COURT - Mandatory injunction - Discretionary power of court to grant When to consider issue of convenience in an application for

COURT - Parties who have submitted to - Need for to refrain from taking steps which are antithesis or alteration to the accomplishment of due process of judicial system

EVIDENCE - Affidavit evidence - Conflicts in - How to resolve in the hearing of an application

INJUNCTION - Forcible eviction of tenant - Use of mandatory injunction to regain entry - Whether a good remedy - Tests for determining

INJUNCTION - Mandatory injunction - Classification and distinction of from interlocutory injunction per se

INJUNCTION - Mandatory injunction - Features and principles of

INJUNCTION - Mandatory injunction - Issue of balance of convenience in an application for - When to consider

INUNCTION - Mandatory injunction - Discretionary power of court to grant - When to consider issue of convenience in an application for JUDICIAL PRECEDENT - Doctrine of stare decisis explained

LANDLORD AND TENANT - Ejection of tenant - Whether self-help allowed

LANDLORD AND TENANT - Forcible eviction - Where done by hired agents -  Whether landlord liable

LANDLORD AND TENANT - Forcible eviction of tenant - Mandatory injunction - Whether a good remedy to regain entry - Tests for determining

LANDLORD AND TENANT - Landlord - Liability of for forcible eviction of tenant - Whether mandatory injunction is good remedy for forcible eviction in the circumstances of this case

LANDLORD AND TENANT - Recovery of Premises - Whether premises could be recovered by forcible means

LANDLORD AND TENANT - Wrongful ejection - Whether necessarily requires a landlord and tenant relationship to stand

LANDLORD AND TENANT -’Tenant’ - Definition of

PARTIES - Parties who have submitted themselves to court - Need for to refrain from taking steps which are antithetical or alteration to the accomplishment of due process of judicial system

PRACTICE AND PROCEDURE - Affidavit - Conflicts in - How to resolve in the hearing of an application

PRACTICE AND PROCEDURE - Mandatory injunction - Features and principles of - Classification and distinction of from interlocutory injunction per se

PRACTICE AND PROCEDURE - Mandatory injunction - Forcible eviction of tenant - Use of mandatory injunction to regain entry - Whether a good remedy - Tests for determining WORDS AND PHRASES - ‘Tenant’ - Definition of

Issues:

1.            Whether having regard to the affidavit evidence before the learned trial Judge, the trial Judge was right in refusing to issue order of mandatory injunction restoring appellant to possession of the premises which was wrest from appellant by the respondents through the use of self-help while suit No. MHC/143/2001 and motion No. MHC/362M/2001 were pending.

2.            Whether the learned trial Judge allowed himself to be carried away by irrelevant fact or facts not before him in the consideration of the appellant’s motion No. MHC/380M/2001 and the subsequent ruling.

3.            Whether the learned trial Judge was right to refuse to follow the decisions of the Supreme Court cited before him and then preferred to follow decision of a foreign court whose facts and circumstances are not the same as the facts and circumstances of this case.

Facts:

This is an interlocutory appeal against the ruling of the trial High

Court delivered on 28/6/2001. The appellant, as plaintiff filed on 13/6/ 2001  an application for an order of mandatory injunction directing the defendants/respondents to restore applicant to possession of its office at No. 86, Iyorchia Ayu Road, Makurdi pending the hearing and determination of motion No. MHC/362M/2001; and an order of mandatory injunction directing the defendants, to restore the office of the applicant to the state it was prior to 12/6/2001 pending the hearing and determination of motion No. MHC/362M/2001.

The affidavit in support of this application showed that the plaintiff/ applicant was forcibly evicted from the premises even at a time he had filed and served a suit and motion on notice to prevent such forcible eviction. The learned trial Judge heard the motion but refused to grant the prayers for mandatory injunction. Dissatisfied, the plaintiff/applicant appealed.