MAL. MOHAMMED AUWALU KWAZO v. RAILWAY PROPERTY COMPANY LIMITED & ORS (2014)

MAL. MOHAMMED AUWALU KWAZO v. RAILWAY PROPERTY COMPANY LIMITED & ORS

(2014)LCN/7156(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 30th day of April, 2014

CA/K/41/2006

RATIO

WHETHER AN ISSUE FOR DETERMINATION MUST FLOW FROM THE GROUNDS OF APPEAL

By law, an issue for determination can only flow from ground(s) of appeal. There are only two grounds of appeal and the Appellant, who raised them, has also formulated his issues, one from each ground, so there cannot be three issues for determination from the 2 grounds of appeal! The said issue 1 by the 1st Respondent, being extraneous to the two grounds of appeal, is hereby struck out, together with the arguments there under. See OSSAI VS. FRN (2013) 13 WRN 87; (2012) LPELR 1966 CA; UNILORIN V. OLAWEPO (2012) 52 WRN 42; AYANGOKE V. KEYSTONE BANK LTD LPELR 21806 CA; OSENI VS. BAJULU (2010) ALL FWLR (Pt. 511) 813; OBOSI VS. NIPOST (2013) LPELR 21397 (CA). Per ITA G. MBABA J.C.A

JUSTICE

ABDU ABOKI Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

MAL. MOHAMMED AUWALU KWAZO Appellant(s)

AND

1. RAILWAY PROPERTY CO. LTD.
2. CITY SCOPE PROPERTIES LTD. Respondent(s)

ITA G. MBABA J.C.A. (Delivering the Leading Judgment): This is an appeal against the interlocutory Ruling of Kano State High Court in suit No K/557/2005, delivered on 19/01/2006, by Hon. Justice N.S. Umar, wherein the learned trial Court refused the application for interlocutory injunction sought by the plaintiff (now appellant).

Appellant (as plaintiff) had filed the suit seeking the following reliefs:
“(1) A declaration that the lease granted to the plaintiff by the 1st defendant over a piece of land measuring 2,435m2 situated in Lagos Street, Kano by 1st defendant’s letter dated 24/11/98 Ref. No. RPC/NPP/143/VOL.3/5 more particularly depicted in the plan annexed herewith and marked red is still valid and subsisting and cannot be determined by the 1st defendant or anybody acting for, under or through it before the end of the term granted.
(2) A perpetual injunction restraining the defendants jointly and severally together with their servants, agents or anybody howsoever described, acting for, through or on behalf of the defendants, from disturbing the plaintiff’s possession, occupation, use and enjoyment of the said piece of land described in prayer (I) above!

At the same time of filing the writ, the plaintiff filed a motion on Notice praying for:
“An order of interlocutory injunction restraining the respondents, jointly and severally, acting on their own behalf or through their agents, servants officials or anybody however described from disturbing the plaintiff/Applicant’s possession, occupation and use of the piece of land the subject matter of this suit, situate along Lagos Street, Kano or from trespassing thereon, pending the hearing and determination of the substantive suit.”

The application was supported by affidavit with 13 exhibits. The facts of the case showed that the 1st Respondent granted the Appellant a lease of the land in question, for 21 years, for the building of a petrol filling station. The Appellant paid all the necessary fees and equally sought and obtained necessary approval from relevant government agencies for the construction of the fuel station and fenced round the subject matter. Just as he was about to commence the construction of the filling station, he received Exhibit G, a letter of cancellation of the grant and asking for re-application for another land. The 1st Respondent stood its grounds and so withdrew the granted lease before the expiration of its terms and used the 2nd Respondent, as agent, to demolish all existing structures on the land. See paragraphs 3(i) to (l) of the supporting affidavit on pages 25 and 26 of the Records.

The 1st Respondent said what they gave the Appellant was an offer, which, even upon acceptance, was still subject to final approval by the Minister, whose final approval was eventually not obtained and the offer was finally withdrawn.

After hearing the arguments from the parties, the learned trial judge refused to make the order for interlocutory injunction, holding that Appellant had not shown existence of a legal right worthy of being protected by the Court, on the basis that the offer of a lease made to appellant in Exhibit A was only conditional and it had been revoked, by virtue of Exhibit RP1, issued by the 1st Respondent.
This appeal is against that Ruling and Appellant’s Notice of appeal, dated 23/1/2006, is on pages 57 to 61 of the Records. It discloses 2 grounds of appeal. Appellant filed his brief of arguments on 8/3/2006 and distilled 2 issues for determination from them, namely:
“(1) Whether or not the Appellant is entitled to the grant of an order of interlocutory injunction pending trial of the substantive suit (Ground 1)
(2) Whether or not it was proper for the learned trial judge to pronounce as he did on the effect of Exhibit RP1 at the stage of interlocutory application for injunction (Ground 2)
Appellant also filed a Reply brief on 4/7/2006.

The 1st Respondent filed its brief on 26/6/2006 and raised 3 issues for determination:
1. Whether the Appellant satisfied the conditions set down by the Courts over the years for grant of interlocutory injunction.
2. Whether trial judge was right in refusing to grant Appellant the interlocutory injunction.
3. Whether the findings of the trial concerning Exhibit RP1 touched on the final outcome of the substantive suit.

1st Respondent’s issues 2 and 3 appear to be the same as issues 1 and 2 by the Appellant. Though issue 1 by 1st Respondent appears relevant, I think it should be struck out, straight away, as it is extraneous to the existing 2 grounds of appeal, framed by Appellant, though related to the ground one, in part.

The 2nd Respondent filed its brief on 26/6/2006 and raised a preliminary objection in the brief (pages 1 to 4). 2nd Respondent, however, distilled a lone issue for the determination of the appeal:
“Whether from affidavit evidence and exhibits adduced by the parties, the learned trial judge was right in refusing to grant the interlocutory injunction asked by the Appellant.”
When the appeal was heard on 27/2/14, Counsel, on behalf of their clients adopted their briefs, starting with the preliminary objection by the 2nd Respondent, and they moved us accordingly.

The 2nd Respondent’s preliminary objection, raised in its brief was against issue one raised on ground one by the Appellant. Counsel argued that the ground of appeal was at best a ground of mixed law and facts and so Appellant required the leave of the Lower Court or of this Court to argue. He relied on section 242 (1) of the 1999 Constitution and on the case of EKUWLUGO VS. ACB (NIG.) LTD. (2006) 6 NWLR (Pt. 975) 30 at 40 – 41;

He argued that since the exercise of Court’s discretion to refuse grant of interlocutory injunction, raises a question of law and facts, Appellant needed the leave of Court to appeal against the same.
Appellant’s reply to the objection is as per the Reply brief filed on 4/7/2006. Appellant said the objection did not comply with Order 3 Rule 15(1) of the Court of Appeal Rules 2002, for just being raised in the Respondent’s brief; that the non-compliance made the objection in-competent and should be struck out. He relied on MUSTAPHA VS. MSHELIZAH (2003) FWLR (Pt. 183) 1 at 14.

Alternatively, Appellant said if we are inclined to look at the preliminary objection on its merits, on the strength of Order 3 Rule 15 (3) of the 2002 Rules, that we should dismiss the objection for being misconceived; that by section 241 (i) F (ii) of the 1999 Constitution appeal lies as of right, where an injunction or the appointment of a receiver is granted or refused, and this appeal is against an order refusing grant of injunction; that in such situation, it does not matter whether the ground of appeal is one of law alone or of mixed law and facts. He relied on UBA PLC VS. SAMBA PETROLEUM CO. LTD (2003) FWLR (Pt. 137) 1199. Counsel further argued that the notice of appeal was given (filed) on 23/1/2006, after the Ruling, made on 19/1/2006, thus, the appeal was filed within the time stipulated in section 25(a) of the Court of Appeal Act.
He urged us to dismiss the preliminary objection.

We have held, severally, that one who raises a preliminary objection against appeal, pursuant to Order 10 Rule 1 of the Court of Appeal Rules 2011 (Order 3 Rule 15(1) of the 2002 Rules) has to file Notice of same, formally before proceeding to argue the objection in his brief of argument. This is because, apart from fulfilling the requirement of giving at least three days notice to the Appellant, there is that requirement to file it, which connotes paying the filing fees, and in law, filing fees breathe life into the process of Court, except where payment is waived. See the case of SAMBA PETROLEUM CO. LTD. VS. F.C.M.B. [2014] 3 NWLR [Pt. 1394] 346, ONWUBUFOR V. OKOYE [1996], NWLR [Pt. 424] 259; MOYOSORE VS. GOV. OF KWARA STATE [2012] 5 NWLR [Pt. 1293] 242 GARBA VS. UMMUANI [2013] 12 WRN 7.

The 2nd Respondent did not file a formal Notice of Preliminary Objection in this Appeal. But that is not the only problem with the objection. What the 2nd Respondent complains against is alleged incompetence of a ground of appeal and so the objection is not against the competence of the appeal, but of a ground, which, if upheld, can not affect the hearing of the appeal on the remaining ground(s). In such a situation, the Respondent should not file preliminary objection, pursuant to Order 10 Rule 1. He should rather file a motion, giving notice to the Appellant of his intention to attack the use of the ground of appeal and/or issue, considered unwholesome by the objector. See NWAOLISAH VS. NWABUFOH [2011] 14 NWLR [Pt. 1268] 600; and OBOSI VS. NIPOST [2-13] LPELR – 21397 [CA] page 24 thereof.

On the substance of the preliminary objection, 2nd Respondent had quarreled that Appellant did not seek the leave of the court below or of this court before raising and arguing ground one of the appeal, which Counsel said, is of mixed facts and law. Ground one of the appeal (without the particulars) says:
“The learned trial Judge erred in Law and or facts when he refused to grant the order of interlocutory injunction when the appellant (applicant at the trial) had satisfied the conditions for the grant of the same.”

I think the 2nd Respondent was raising preliminary objection for the wrong reason. The objection would have been more credible, if it was raised against the appeal, for failure to seek and obtain the leave of the Court below or of this Court to appeal, the appeal being against interlocutory decision of the lower court, refusing to grant injunction! To object to Ground one, for the reason advanced, was therefore, certainly, a misapplied aggression.
But can this Court close its eyes to the obvious fundamental defect in the way this appeal was originated, just because no valid objection is raised against it, and the 2nd Respondent’s preliminary objection is misapplied – having targeted a ground of appeal, instead of the whole appeal?
I do not think so, because we have held, several times, that
“Failure of a respondent to properly originate a preliminary objection to the hearing of an appeal does not preclude the court from considering any apparent defect to the hearing of the appeal, found on the face of the Notice of Appeal.”
See the case of NWANA VS. UBN PLC [2013] LPELR 21823 [CA] at PAGES 19-20; GARBA VS. UMMUANI [2013] 12 WRN 76; NDIC VS. NWAWKA: CA/K/424/ 2008, an unreported decision of this court, delivered on 25/10/2013. By Order 6 Rule 6 of the Court of Appeal Rules, 2011, the Court shall have the power to strike out a notice of appeal when an appeal, is not competent or for any other sufficient reason.” And this can be done by the court of its own motion or an application by the Respondent. See Order 6 Rule 3 of the Court of Appeal Rules.

By section 14 (1) of the Court of Appeal Act, 2004, where:
“… an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that court or of the Court of Appeal, lie to the court of Appeal …” (Underlining mine).
This provision has constitutional backing in sections 242 (1) and 243 (1) (b) of the 1999 Constitution (one of which 2nd Respondent’s Counsel sought to rely on to fault ground 1 of the appeal).
This appeal is against an interlocutory decision of the trial Court, refusing to grant injunction sought, pending the determination of the suit. The main suit was adjourned to 13/3/06, after the delivery of the Ruling on 19/1/2006, and the trial judge, on that date of the ruling, had ordered the parties to file their pleadings. There is nothing to show any further progress of the substantive case beyond this appeal against the interlocutory ruling, more than 8 years, after the ruling! And the appeal was not initiated by due process.

Section 241 of the 1999 Constitution (as amended) permits appeal as of right to this Court, where it is of a final judgment of the lower, sitting at first instance, or where the appeal is on ground(s) that raises a question of law alone etc. See Section 241 (a) and (b) of the 1999 Constitution. See also the case of GARBA VS. UMMUANI (supra), where this Court held:
“Since the order made by the Lower Court evinces an interlocutory decision, the law compels the appellants to seek and obtain the leave of the Court before appealing against it. In the eyes of the law, leave simply connotes permission. The law insists that where the leave of Court is required before doing an act and it is not obtained, the act is rendered null and void. See OTU V. ACB INT’L BANK LTD. [2008] 3 NWLR [Pt. 2073] 179; BBN LTD. V. OLAYIWOLA & SONS LTD. [2005] 3 NWLR [Pt. 912] 434; AGIP NIG. LTD. V. AGIP PETROLI INT’L [2010] NWLR [Pt. 1187] 348; NWAOLISAH V. NWABUFOH [2011] 14 NWLR [Pt.1268] 600.”

I have read the Records of this Appeal and the briefs by parties and have not seen any place that Appellant sought and obtained the leave of either the trial court or of this court to bring this appeal. The record of appeal was transmitted to this court on 3/3/06, after the filing of the appeal on 23/1/2006. The Notice of appeal was therefore filed in outer disregard of the conditions precedent, which is seeking and obtaining of leave of the court below, or of this court, as stipulated by law. It is therefore incompetent.

In the case of UDUAGHA V. NWGWUGWU [2013] LPELR – 21819 [CA], this Court held:
“A valid and competent Notice of appeal forms the necessary foundation of a civil appeal, to invoke the jurisdiction of an appellate court to entertain the appeal. See the case of OKONKWO VS. INEC [2004] 1 NWLR [Pt.854], where the Supreme Court held:
“The Notice of Appeal is very important document because it is the foundation of the appeal and if it is defective the court of Appeal has inherent power to strike it out on the ground that it is incompetent…”
See also AKINLOYE VS. ADELAKUN [2000] 5 NWLR [Pt. 657] 530 at 535; BILAM DAMBAM V. ARDO LELE [2000] 11 NWLR [Pt. 678] 413.

In the circumstance, I hold that the appeal is incompetent and ought to be struck out, pursuant to Order 6 Rule 6 of the Court of Appeal Rules 2011.
Because ours is not the altimate court, I have also decided to consider the appeal on the merits, for whatever it is worth.
I think Appellant was gambling by using the interlocutory injunction and the appeal therefrom to frustrate the hearing of the substantive suit he filed, since October 2005!
I have to repeat our usual warning that, Counsel should strive to resist the temptation to use unnecessary and frivolous interlocutory appeals to frustrate the hearing of the substantive matter at the trial court. Appellant’s substantive claim at the lower court was for declaration that the land transaction he had with the 1st Respondent remains valid and subsisting, and cannot be determined by the 1st Respondent before the end of the lease. He also sought a perpetual injunction to restrain the Respondents from terminating the lease contract. That was the same relief Appellant tried to get, by short cut, through the interlocutory injunction! Of course, granting the interlocutory application would have spelt an end of the main suit, as there would have been noting left for the Appellant to pursue, again.

Appellant’s attitude to the refusal of the interlocutory application tends to show that he was not actually interested in pursuing the main case, in the 1st place, as it appears he would have been satisfied with an interlocutory order of injunction, (using it to operate his business, while the case lasts!) See the case of AJIBIYE V. FRN [2013] 19 WRN 127 and NWANA V. UBN PLC [2013] LPELR – 21823 [CA] page 14, where we said:
“…that, I think, is why the law should be vigilant to check abuse of interlocutory appeals, legal schemers who only seek to manipulate the process of Court for unwhole-some objective.”

Appellant’s Issue one was:
“Whether or not the Appellant is entitled to the grant of an order of interlocutory injunction pending trial of the substantial suit”.
That cannot be a valid issue for the determination of the appeal as it does not appear to be a complaint against the decision of the trial Court. Rather, it sounds as an issue formulated for the determination of the motion for injunction! This Court being appellate Court has no vires to hear and determine whether Applicant is entitled to the grant of an order of interlocutory injunction, as sought by the Appellant in the issue. This Court can only be called upon to determine whether or not the learned trial Court was right in refusing the order for interlocutory injunction.
Even that, for the Appellant to succeed in faulting the exercise of the discretion by the trial Court, is a daunting task. This is because,
“where the exercise of discretion by a trial Court is in issue, an appellate Court is usually reluctant to interfere with the decision, except where the discretion was exercised in an arbitrary or illegal manner or without due consideration of the issues by the trial Court. See Military Government of Lagos State vs. Adeyiga (2012) 5 NWLR (pt. 1293) 291 ratio 14; Nwana vs. UBN PLC (2013) LPELR – 21823 (CA); R. Rankay Nig. Ltd vs. Cadbury Nig. Ltd (2006) 6 NWLR (pt. 976) 338; Williams vs. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 145.”

Throughout Appellant’s argument of issue 1, he never identified any error with the exercise of discretion by the trial Court in refusing the grant of interlocutory injunction. Appellant was rather arguing, as he did at the Court below, why the order of injunction ought to be granted by this Court!

On Issue 2, Appellant queried whether it was proper for the trial judge to pronounce as he did on the effect of Exhibit RP1 at the stage of interlocutory application for injunction. Appellant argued that what the trial Court was called upon to decide was whether or not the Appellant was entitled to the grant of interlocutory injunction, pending trial, but instead of limiting its pronouncement to that, the trial Court decided the purports of Exhibits A and RP1, and said that a perusal of Exhibit A shows it was only a conditional offer which appeared to have been revoked by 1st Respondent by Exhibit RP1. He submitted that, while determining application for interlocutory injunction, the Court is not allowed to decide on issues that would turn up for adjudication in the main trial. He relied on the case of Global Fishing Industries Ltd vs. Coker (1990) 7 NWLR (pt. 162) 265; Akapo vs. Hakeem-Habeeb & Ors (1992) 6 NWLR (pt. 247) 266; Obeya Memorial Hospital vs. AG Fed. (1987) 3 NWLR (pt. 60) 325.

It is true that a judge is barred from delving into the substance of the main case, while determining an interlocutory application, but that does not mean he cannot consider the document presented to it for determination by the applicant for the interlocutory order, if the document is relevant to the interlocutory application.

Of course, the Respondent had argued that the trial Court was right in pronouncing on Exhibits A and RP1, since they were referred and relied upon by the supporting affidavit of the Applicant – paragraph 3(i) and (k). See pages 25 and 26 of the Records. He added that in determining a claim for interlocutory injunction that Court has to determine whether Applicant has established a legal right to base his claim. He relied on Dyktrade Ltd vs. Omnia (2000) 12 NWLR (pt. 680) 1; Adenuga vs. Ochioneru (2003) 8 NWLR (pt. 821) 163.

I do not think there is anything wrong in the trial Court considering the documents which the Appellant relied upon to found his claim for injunction, and to pronounce on it, whether the same has disclosed any legal right upon which the order of interlocutory injunction could lie. I do not think doing that amounts to delving into the substance of the main case, as the Court must necessarily determine whether Applicant, in claim for interlocutory, has disclosed a legal right over the property he claims an order for injunction. See Buhari vs. Obasanjo (2004) FWLR (pt. 191); Kotoye vs. CBN (2001) 1 FWLR (pt. 49) 1517; Dantata vs. Consolidated Resources Ltd (2005) ALL FWLR (pt. 280) 1474.

This appeal is therefore devoid of merit and is liable to be dismissed. For the reason that the appeal is incompetent for the reasons earlier stated, and also devoid of merit (on considering it), it is hereby dismissed.
Parties to bear their respective costs.

ABDU ABOKI, J.C.A.: I have had the privilege of reading in advance the lead judgment of my learned brother, ITA G. MBABA, JCA.
I agree with the reasoning and conclusion therein that the appeal is devoid of merit. I also accordingly dismiss it and abide by the consequential orders as to costs.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Ita George Mbaba, JCA. His Lordship has considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions in the lead judgment. I only wish to comment on an aspect of the case.

This appeal is against the refusal of a motion on notice for interlocutory injunction. The suit was commenced by the Appellant by a writ of summons dated the 7th of October, 2005 and the writ was practically accompanied by the motion on notice for interlocutory injunction also dated the 7th of October, 2005. The lower court took arguments on the application for interlocutory injunction on the 17th of November, 2005 and it delivered a considered ruling refusing the application on the 19th of January, 2006. The Appellant filed a notice of appeal against the Ruling. The records do not show that the Appellant filed a statement of claim and/or that the Appellant had taken any step in the prosecution of the substantive case before the lower court. I find it difficult to understand why the Appellant decided to pursue this appeal against the refusal of the order of injunction to this court, instead of taking steps to prosecute the substantive matter to a logical conclusion, particularly as the appeal does not finally determine the rights he had gone the court to protect. It is just not in accord with commonsense, unless, of course, he had noting to protect in the first place.

The matter in the lower court has been put in abeyance for over eight years whilst the Appellant, apparently on the advance of his counsel, engaged in the futile exercise of this interlocutory appeal, I want to remind counsel of the advice rendered by this court in Ajiboye v. Federal Republic of Nigeria (2013) 17 WRN 127 where the court stated thus:
“I think counsel who are advising litigants aggrieved by interlocutory decisions of court should, themselves, be advised against subjecting their clients to avoidable hazards, suffering and spending, which premature appeals entail. Sometimes, a little patience and tact, on the part of counsel, would suggest lying low, and making down what could have been a point of interlocutory appeal, and opting to take it up at the end of the trial, if the final verdict becomes unfavourable, that is, where the issue for interlocutory appeal would not ease to be a live issue in the final judgment of the trial court. Thus, where a party has cause to disagree with an interlocutory ruling of the trial court, over an issue which the party will not be foreclosed to raise at the final Judgment of the substantive matter, I think the party (or his counsel) should not rush to the Court of Appeal on the issue and stall the trial of the case at the lower court, whether or not the Interlocutory appeal succeeds, and his right of appeal will not be extinguished at the final judgment.”

I hope the Appellant and his Counsel will learn from this voyage to nowhere they embarked upon.
I agree that there is no merit in the appeal and I too, accordingly, dismiss same. I affirm the decision of the lower Court and abide the consequential orders in the lead judgment.

ITA G. MBABA J.C.A. (Delivering the Leading Judgment): This is an appeal against the interlocutory Ruling of Kano State High Court in suit No K/557/2005, delivered on 19/01/2006, by Hon. Justice N.S. Umar, wherein the learned trial Court refused the application for interlocutory injunction sought by the plaintiff (now appellant).