(5)     That their continuing with their building operations will make it unduly hard on me if I am eventually victorious in this suit."

The defendants filed no counter-affidavit. Nevertheless, at the hearing of the application on 7th July, 1969, Mr Phillips for the defendants opposed it on the ground that the plaintiff had not made out a prima facie case for an interlocutory injunction. The learned trial Judge, however, ruled as follows:-

"In my view this application should be granted. There is no counter-affidavit. I would grant the application and order as follows:-

That the defendants/respondents be restrained from entering into the land in dispute pending the determination of the suit.

That the defendants be restrained forthwith from continuing the building operations already commenced."

In the appeal now before us against that order, the main complaint of Chief Williams who appeared for the defendants/appellants was that the learned trial Judge acted as if an interlocutory injunction could be granted as a matter of course. He then submitted that as the plaintiff/respondent was asserting a right, he should show a strong prima facie case in support of that right; he then pointed out that in one breath the plaintiff/respondent was asking for possession of the land in dispute (admitting thereby that he was not in possession) and in another breath he was claiming damages, for trespass, a right to which he could be entitled only if he was in lawful possession or deemed to be in lawful possession. Finally Chief Williams contended that in any case nobody knew at that stage in the proceedings where the disputed land was or what its dimensions were as no plan of it had been filed in court.

Although he was served with the hearing notice, the plaintiff/respondent was not present at the hearing of this appeal and did not therefore reply to Chief Williams' submission.

In our view, an application for an interlocutory injunction is not granted as a matter of course. The applicant must establish a probability or a strong prima facie case that he is entitled to the right of the violation of which he complains and, subject to that being established, the governing consideration is the maintenance of the status quo pending the trial. In deciding whether the subject matter should be maintained in status quo regard must be had to the balance of convenience and to the extent to which any damage to the plaintiff can be cured by payment of damages rather than by the granting of an injunction. (See Donmar Productions Ltd. v. Bart and ors (1967) 1 W.L.R. 740 at p. 742). It must be remembered, however, that at all times the burden of proof lies on the applicant.

The question then is this. Has the plaintiff/respondent in the present case established the first pre-requisite to the application-a probability or a strong prima facie case that he is entitled to the rights the violation of which he complains of? There was no evidence before the court, at that stage of the proceedings at any rate, whereby he could be deemed to be in possession. However, in the second and third legs of his claim, the plaintiff/respondent claimed damages for trespass and an injunction to restrain the defendants/appellants from committing further acts of trespass. Since trespass is an injury to a possessory right, the proper plaintiff in an action of trespass to land is the person who was or who is deemed to have been in lawful possession at the time of the trespass. It seems to us, therefore, that the plaintiff/respondent, at the material time, had not made out a prima facie case that he was entitled to the rights of violation of which he had complained of in his writ.

There is also one other point. As no plan of the disputed land had been filed, we do not see how the learned trial Judge could grant an interlocutory injunction restraining the defendants/appellants from entering the said land, the dimensions of which are still to be determined. The order was obviously made without due consideration of this apparent difficulty.

For all these reasons, we are in no doubt that the learned trial Judge was clearly in error in making the order complained of. The appeal is therefore allowed and the order of George J. made in the High Court of Lagos on 7th July, 1969, in Suit No. LD/261/1969 restraining the defendants/appellants from entering the land in dispute and continuing the building operations already commenced therein pending the determination of the suit is hereby set aside.

The defendants/appellants are awarded costs of the appeal which we assess at fifty guineas.

Appeal allowed: Judgment of High Court set aside.