Essay
By Mike Ozekhome, SAN
THE FCT High Court sitting in Abuja, on the 7th of February, 2024, granted an interlocutory application in Suit No: FCT/HC/CV/2005/2022, between PRINCE JOSEPH KPOKPOGRI V. FCT MINISTER & 5 ORS, seeking to restrain the FCT Administration and the Federal Housing Authority from trespassing or further trespassing on the property of the Plaintiff, Prince Joseph Kpokpogiri, pending the hearing and determination of the substantive suit. Hon. Justice C. O. Agbaza, in his ruling, resolved all the issues in favour of Mr. Kpokpogiri and against the Defendants ((1) HON. MINISTER FEDERAL CAPITAL TERRITORY, (2) FEDERAL CAPITAL TERRITORY ADMINISTRATION (FCTA), (3) FEDERAL CAPITAL DEVELOPMENT AUTHORITY (FCDA), (4) ABUJA METROPOLITAN AUTHORITY COUNCIL (AMMC), (5) FEDERAL HOUSING AUTHORITY(FHA) and (6) ATTORNEY GENERAL OF THE FEDERATION) holding that the Mr. Kpokpogiri has established a legal right to be protected by the court. The court therefore held that the Defendants are restrained from trespassing or further trespassing on Mr. Kpokpogiri’s property located at Plots 203 and 204, Apo Estate, Guzape, Abuja, pending the determination of the substantive suit.
Sometime in May, 2022, the Defendants demolished Mr Kpokpogiri’s property located at Apo Estate, Guzape, Abuja, without any court order or reasonable ground(s). The property had been partially demolished prior to the law office of Prof. Mike Ozekhome, SAN, being briefed. The Learned Silk immediately instituted an action on behalf of Mr Kpokpogiri at the FCT High Court. The court granted an interim order of injunction against the Defendants, restraining them from further demolishing and further trespassing on the property pending the determination of the motion on notice filed along with the Writ of Summons. The Defendants were duly served the order of interim injunction on the 8th of June, 2022, along with the Writ of Summons and the motion on notice for interlocutory injunction.
Upon being served the order of interim injunction, the FCT Administration, in a brazen display of impunity, rushed back to the property and leveled the partially demolished building to the ground and then proceeded to file a counter affidavit to the motion for interlocutory injunction, contending inter alia that the demolition having been completed, the court cannot grant an injunction restraining a completed act.
In a reply to the counter affidavit, Prof Ozekhome detailed the FCT Administration’s contumacious acts of further demolishing the property after they had been served with the interim order of injunction and contended that they cannot rely on their own wrong as a defence to the motion. The Learned Silk further contended that the acts sought to be restrained is not just the demolition, but also the act of trespass. Though the court cannot restrain a completed act, where the action is based on trespass to land which is a continuing act, the court can grant an injunction restraining the Defendants from further trespassing on the land. He cited the case of FARUK & ANOR v. MUNKAILA & ANOR (2021) LPELR-55731(CA), where the Court of Appeal, Per OBIETONBARA OWUPELE DANIEL-KALIO, JCA (Pp 16 – 17 Paras E – B) held thus:
“True, an interlocutory injunction is not available for an act that has been carried out. However, where there are further acts such as further acts of trespass, an interlocutory injunction is available to restrain such further acts. In IDEOZU & ORS VS OCHOMA & ORS (2006) LPELR-1419 (SC) the Supreme Court explained the nature of an interlocutory injunction as one being aimed at attacking or tackling a threatening, continuing or living adverse act or conduct on the part of the owner of the act or conduct. It is when the act or conduct is completed that the relief of interlocutory injunction is totally spent and recourse would then have to be made to a perpetual injunction for remedy.”
In the ruling delivered by Justice Agbaza, the court agreed with Prof. Ozekhome and disagreed with Y. Abubakar, Esq, Counsel for the 1st – 4th Defendants, holding that the Defendants cannot rely on their own acts of impunity in demolishing the property as a defence to the application for interlocutory injunction. The court condemned the FCT Administration for their contemptuous acts of further demolishing the property after being served the order of interim injunction. The court had strong words for the FCT Administration for their disregard for rule of law. The court further held that it was an action based on trespass to land in which an order of interlocutory injunction can be granted to restrain the Defendant from further acts of trespass. The court accordingly granted the application restraining the Defendants from trespassing on or further trespassing on Mr Kpokpogiri’s property. By this development, the interim order of injunction earlier granted on the 7th of June, 2022 was further validated and extended by a grant of the application for interlocutory injunction, pending the determination of the substantive suit. The FCT Administration was therefore, by this ruling, ordered to stay away from the disputed property located at Plot 203 and 204, Apo Estate, Abuja, until the final determination of the suit.
Tags: Hon. Justice C. O. Agbaza Mike Ozekhome
