ATTORNEY-GENERAL OF THE FEDERATION V. CHIEF PATRICK IBIKUNLE FAFUNWA-ONIKOYI & ORS.
(2006)LCN/2036(CA)
In The Court of Appeal of Nigeria
On Monday, the 10th day of July, 2006
CA/L/564/2005
RATIO
COURT PRACTICE: THE MAJOR PURPOSE OF A PRELIMINARY OBJECTION
the primary purpose of a preliminary objection is to determine or terminate the proceedings in limine at the time it was raised. It therefore behoves the court to hear and determine it first before embarking on the hearing or consideration of the issues to which or in respect of which the objection was raised in order to avoid what might turn out to be an unnecessary exercise. Onyekwuluje v. Animashaun (1996) 3 NWLR (Pt.439) 637, Okoi v. Ibiang (2002) 10 NWLR (Pt.776) 455 at 468. PER GARBA, J.C.A.
JUSTICES:
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
Between
ATTORNEY-GENERAL OF THE FEDERATION – Appellant(s)
AND
1. CHIEF PATRICK IBIKUNLE FAFUNWA-ONIKOYI (Chief Onikoyi of Lagos)
2. ALHAJI LATEEF KEHINDE ONIKOYI
3. PROF. ALIYU BABATUNDE FAFUNWA
4. ALHAJI ABDUL GANIYU KOLAWOLE ONIKOYI
5. ATTORNEY-GENERAL OF LAGOS STATE – Respondent(s)
GARBA, J.C.A. (Delivering the Leading Ruling): The appellant in this appeal had filed six (6) motions as follows:-
(1) a motion on notice for departure from the rules of court, stay of further proceedings in the court below and discharge of the order of interim injunction made by the court below, filed on the 9/11/05.
(2) a motion on notice filed on 30/11/05 for an order setting aside the ruling of the court below delivered on the 25/11/05.
(3) two (2) motions on notice filed on the 17/2/06; one for an order setting aside the ruling of the court below delivered on the 25/11/05 and the other for an order for departure from the rules of court.
(4) a motion on notice filed on the 20/2/06 for leave to amend appellants’ notice of appeal dated 7/11/05 by addition of single ground of appeal, and
(5) a motion on notice filed on the 6/3/06 for departure from the rules of court.
On the 9/3/2006 when the above motions came up for hearing, learned senior counsel for the appellant; Chief Afe Babalola, SAN, notified the court of the withdrawal of the motion filed on the 30/11/05 for an order setting aside the ruling of the court below delivered on the 25/11/05. A notice of withdrawal of the said motion dated the 17/2/2006 had earlier been filed by appellants’ counsel.
Mr. Kola Awodein, SAN, for the 1st – 4th respondents to the appellant’s motions and Mr. Lawal Pedro, for the 5th respondent did not object to the withdrawal. The motion was accordingly struck out by the court on that day. Mr. Awodein, SAN then informed the court that he had filed a notice of preliminary objection on the 17/2/2006 in which he sought orders striking out the notice of appeal dated 15/10/2005, or alternatively, dismissing and/or striking out the appellant’s motions dated 9/11/2005 and 30/11/2005. He had also filed a notice of additional orders dated 20/2/06 in respect of the preliminary objection seeking orders striking out the notice of appeal dated 7/11/05 and dismissing or striking out appellants’ motion dated 17/2/06.
After some arguments, learned counsel agreed that the notice of preliminary objection should be taken and considered first. Due to the controversy and contentious nature of the motions and the notice of preliminary objection, the court directed learned counse to file written submissions on both the preliminary objection and the pending motions. Mr. Awodein, SAN and Mr. Pedro conceded to an interim order for stay of the proceedings in the court below be made pending the determination of the preliminary objection and the motions by this court. Chief Babalola, SAN requested that the said order be made and the court accordingly made the interim order.
The motions and the preliminary objection were then adjourned to the 06/06/06 for adoption of the written submissions by learned counsel.
On the 06/06/06, after deeming all written submissions as duly and properly filed and served, Mr. Awodein, SAN, adopted and relied on his written submissions in support of the notice of preliminary objection filed on the 11/4/06 as well as the reply filed on the 1/6/06. In his oral submissions, he emphasised that the appellants’ notices of appeal are attacking the order of interim injunction and refusal by the court below to discharge same. According to learned senior counsel, the interim order of injunction lapsed on 25/11/05 and the two (2) notices of appeal are now merely academic. He urged the court to strike out the notices of appeal and all the appellants’ motions. Professor T. Osipitan, SAN for the 5th respondent adopted and relied on the written submission filed 5/6/06 on all the appellants’ motions and urged us to strike out the notices of appeal and all the motions related thereto.
Chief Babalola, SAN, adopted and relied on the written submissions on the pending motions filed on 5/5/06 and the reply on points of law filed on 5/6/06. In his oral submission, he urged us to dismiss the preliminary objection and grant all the prayers in the appellants’ motion on the ground that the preliminary objection is based on misrepresentation of facts, misconception and misinterpretation of the law. That the notices of appeal raise issues of jurisdiction and bias which are live for determination in the appeals.
Before delving into the submissions of learned counsel, I would like to say that their agreement that the preliminary objection of the 1st – 4th respondents should be taken first represent the position of law on the practice and procedure of the courts in such situations.
Diligence and expediency also support such a step because the primary purpose of a preliminary objection is to determine or terminate the proceedings in limine at the time it was raised. It therefore behoves the court to hear and determine it first before embarking on the hearing or consideration of the issues to which or in respect of which the objection was raised in order to avoid what might turn out to be an unnecessary exercise. Onyekwuluje v. Animashaun (1996) 3 NWLR (Pt.439) 637, Okoi v. Ibiang (2002) 10 NWLR (Pt.776) 455 at 468.
For that reason, I would review and consider the submissions of learned counsel on the preliminary objection first as contained in their respective written submissions.
In support of the preliminary objection, learned senior counsel for the 1st – 4th respondents raised two issues which he says require determination in the preliminary objection. The issues which are at pp. 2 – 3 of the written submissions are thus:-
“(i) Whether or not the Court of Appeal has jurisdiction in the circumstances to entertain the defendants/appellants notices of appeal dated 15th October, 2005 and 7th November, 2005 respectively.
(ii) Whether or not the defendant/appellants applications of 9th November, 2005 and 30th November, 2005 and 20th February, 2006 ought not in the circumstances to be dismissed and or struck out?”
It was submitted on issue 1 that it is not disputed that the appellants’ notices of appeal dated 15/10/05 and 7/11/05 are wholly a challenge of the interim order of injunction of the lower court made on 14/10/05 which lapsed on 25/11/05 and therefore no longer subsists. Effectively, the appellants’ appeals are said to be an academic exercise which the court would not embark on for want of jurisdiction. The cases of Attorney-General of the Federation v. ANPP (2003) 18 NWLR (pt.851) 182 CF & 1 at 221, Union Bank of Nigeria v. Edionseri (1988) 2 NWLR (Pt.74) 93 at 105 and Tanimola v. Surveys & Mapping Geodata Ltd. (1995) 6 NWLR (Pt.403) 617 at 627 were cited and relied on in support of the submissions. We are urged to be guided by the pronouncements of the Supreme Court and to decline jurisdiction to entertain the said appeals.
It was further submitted that the notice of appeal dated 7/11/05 is incompetent because the grounds of appeal do not arise from any decision of the lower court nor do they challenge any decision of the said court. That all the grounds of appeal challenge and complain about the purported decision of the lower court made on 28/10/05 granting interim injunction against the appellant but the lower court never made such order on the 28/10/05. Records of proceedings of the lower court on the 28/10/05 were referred to and it was maintained that the records show that no such order was made and that the notice of appeal was incompetent. The cases of Ogbanu v. Oti (2000) 8 NWLR (Pt.670) 582 at 591 and Obatoyinbo v. Oshatoba (1996) 5 NWLR (Pt.450) 531 at 549 were relied on the point that to be competent, a ground of appeal must arise from the decision appealed against. Once again, it was said that the court has no jurisdiction to entertain the grounds of appeal for being incompetent.
On issue No.2, it was contended that since the appellants’ notices of appeal constitute the foundation upon which all the appellants’ motions are predicated, once the court founds that it lacks jurisdiction to entertain any matter in respect of the notices of appeal, it must necessarily strike out all the motions.
That the appellant’s motion dated the 17/2/06 is in the nature of an original motion which this court is incompetent to entertain on the authority of the decision in Attorney-General of Anambra State v. Okafor (1992) 2 NWLR (Pt.224) 396 at 429.
Finally, the court is urged to hold that it lacks jurisdiction or ought not to exercise jurisdiction to strike out the notices of appeal dated 15/10/05 and 7/11/05 and all motions including the ones dated 9/11/05, 30/11/05 and 20/2/06.
The 5th respondent did not file a notice of preliminary objection to the hearing of either the appeals or the appellants’ motions as was done by the 1st – 4th respondents. Learned senior counsel for the 5th respondent did not in his written submissions on the six pending applications, make submissions on the preliminary objection raised by the 1st – 4th respondents. He however submitted the following issues as arising for determination in the outstanding applications:-
“(1) Whether there is any valid and subsisting appeal to support the application for departure from the rules, and the amendment of the notice of appeal being sought by the appellant/applicant.
Whether the applicants are entitled to set aside the ruling of the court dated 25/11/2005.”
Now undoubtedly the sincere substance and essence of the issue (1) above, is a challenge and objection to the validity and competence of the appellant’s notice of appeal in respect of which the motions for departure and amendment relate. This position was put beyond doubt by the submissions of the learned senior counsel on the said issue (1) contained at pp. 2-3 of the written submissions. Since the appellant has responded to it in his reply on points of law and it is in pari materia the same with the first leg of the objection by the 1st-4th respondent which the appellant had adequate notice of, I would consider the submissions of the learned senior counsel on the issue at this stage. The meat of the submissions, like those of the learned senior counsel for the 1st – 4th respondents, is that the lower court did not on the 28/10/05 make an order of interim injunction against the appellant and so the grounds of appeal on the notice of appeal dated 7/11/05 do not relate to the decision of that court delivered on 28/10/05. That the appeal is incompetent ab initio and there is nothing upon which the appellants’ motions can be predicated. The cases of Atoyebi v. Governor of Oyo State (1994) 5 SCNJ 62, (1994) 5 NWLR (Pt.344) 290 and Mcfoy v. U.A.C. (1961) 3 All ER 1169, (1962) A.C. 152 were cited by learned senior counsel who gave the citation of the latter case as (1961) 3 All NLR without page No.). Lastly on the issue, it was argued that an amendment which seeks to put life into a dead/non existing court process or circumvent compliance with rules of court is not permitted or allowed.
Learned senior counsel for the appellant’s response to the preliminary objection is contained at pages 38-44 of the appellant’s written submissions on pending applications.
In respect of the 1st issue, it was submitted that the interim order of injunction in respect of notice of appeal dated 15/10/05 was made on 14/10/05 because the appellants’ counsel asked for an adjournment of plaintiff’s application to arrest the ruling on jurisdiction and interlocutory injunction as well as amendment of plaintiff’s process. That order was made pending the determination of the said application by plaintiff which was withdrawn on 28/10/05 and the court refused to vacate the order but rather extended same. The record of proceedings of the lower court on 14/10/05 was referred to and it was submitted the court had no jurisdiction to make an order on an application that does not exist. Furthermore, that ground 5 of the notice of appeal dated 7/11/05 complains against the refusal to discharge the order when the motion upon which it was made had been withdrawn while ground 7 complains about the propriety of the order when the issue of jurisdiction was raised, argued and yet to be decided. It was concluded that the grounds clearly arose out of the decision of the lower court refusing to discharge the order made on 14/10/05 and we are urged to resolve the issue in appellants’ favour.
On the issue No.2, it was submitted for the appellant that all the steps taken by the lower court in defiance of the pending motion for stay of its proceedings in this court, are liable to be set aside and that if the ruling delivered on the 25/11/05 in defiance of the said motion for stay of proceedings was set aside, the basis of the preliminary objection would disappear. We are urged to hold that respondents cannot rely on their own wrong in urging the lower court to defy the processes in this court, to now urge the court to hold that the appeal is academic, to frustrate a pending appeal or take away the jurisdiction to entertain an appeal properly before the court.
Events from the filing of the notices of appeal up to the 25/11/05 when the lower court delivered its ruling were set out by the learned senior counsel who submitted that if the amendment sought in the motion filed on the 17/2/06 is granted, the issue of jurisdiction raised therein would be a live issue. The court is finally urged to dismiss the preliminary objection, grant the application and stay proceedings in the court below.
In the 1st – 4th respondents’ reply argument, it was submitted that there is no appeal against the first ruling delivered on the 25/11/05 where the lower Court declined appellants’ motion not to take any further step in the matter paving the way for the 2nd ruling on jurisdiction.
That the said rulings are binding and have effectively vacated the interim order of injunction, the subject of the appeals. In addition, since there is no appeal against the rulings of 25/11/05, the appellants’ motion dated 17/2/06 to set same aside, is incompetent and this court has no jurisdiction to entertain it.
In my view, the preliminary objection by the 1st – 4th respondents is entirely based on the ground that the interim injunction, subject of the 2 notices of appeal filed on 15/10/05 and 7/11/05 had lapsed on the 25/11/05 and so not longer live for determination in the two appeals.
In my view, the vital issues that require decision in the preliminary objection by the 1st-4th respondent are as follows:-
“(1) whether the grounds of appeal contained in the two (2) notices of appeal filed on the 15/10/05 and 7/11/05 are entirely an attack on the interim order of injunction made on 14/10/05 by the lower court.
(2) whether the said interim order of injunction lapsed on the 25/11/05 when the ruling on interlocutory injunction and jurisdiction was delivered by the lower court.”
As seen earlier, the position of the learned senior counsel for the 1st – 4th and 5th respondents is that the grounds in the notice of appeal are wholly a challenge to the interim order of injunction.
Learned senior counsel for the appellant on his part says that the grounds in addition to the attack on the interim order of injunction also sought reliefs that the action be struck out on ground of jurisdiction and the case be transferred.
To determine what the real and actual complaints are in the grounds of appeal in the two (2) notices of appeal would require a look at all the grounds set out therein in detail.
Though the grounds of appeal and their particulars in the two (2) notices of appeal may appear prolix, it is expedient to recount them here and they are as follows; starting with the one dated 15/10/05:-
“(1) The learned trial Judge erred in law and acted without jurisdiction when he granted an order of interim injunction against the appellant.
Particulars
(a) That parties had already concluded argument on the issue of jurisdiction consequent upon which the matter was fixed for ruling.
(b) That court could not deliver the ruling because of the plaintiffs’ application to arrest the ruling.
(c) The plaintiffs’ application to arrest the ruling is yet to be heard.
(d) The law is that a court cannot make an order against a defendant who is challenging jurisdiction of court until the issue of jurisdiction has been determined.
(e) The order was made in total numerous disregard of the numerous decision of the Supreme Court on the issue of jurisdiction.
(2) The learned trial Judge erred in law when he granted an order of interim injunction on the basis of a proposed amended writ and statement of claim when the motion for the amendment had not been heard and determined.
Particulars
(a) The plaintiffs filed an application dated 9th September, 2005 seeking the following reliefs:
(i) “An order arresting or suspending the ruling on the 1st defendant’s notice of preliminary objection dated 14th July, 2005 and the 2nd defendant’s motion on notice for interlocutory injunction pending the hearing and determination of this motion.
(ii) An order granting leave to amend the writ of summons and statement of claim in the suit as per the asterisked portion of the amended writ of summons and statement of claim filed herewith.
(iii) An order deeming the amended writ of summons and statement of claim duly filed and served as having been properly filed and served.
(iv) An order pursuant to the grant of the amendment being sought herein for leave to rely on and argue the motion for interlocutory injunction dated 8th day of September, 2005 already filed herewith in place of the motion for injunction the subject matter of the ruling herein.
(v) And such further or other orders as this Honourable Court may deem fit to make in the circumstances.”
(b) The motion is yet to be heard and determined.
The order of interim injunction was premised on the assumption that the plaintiffs’ application which is yet to be heard would be favourably considered.
(d) Until the motion is granted, there is no application before the court upon which the order of interim injunction could be made.
(3) The learned trial Judge erred in law and breached the appellant’s right to fair hearing when he granted interim injunction based on a motion for interlocutory injunction which was not properly before the court.
Particulars
(a) The plaintiffs/respondents had earlier moved an application for interlocutory injunction which was adjourned for ruling.
(b) The respondents who moved the application for interlocutory injunction filed an application to arrest the ruling among others.
(c)The application to arrest the ruling and amend pleadings was the application listed for hearing before the trial Judge.
(d) There was no application for injunction listed for hearing before the trial Judge when he granted the interim order.
(e) Until the application to amend the writ and the statement of claim is granted, there is no motion for injunction before the court.
(4) The learned trial Judge erred in granting the order of interim injunction when there was no real case of urgency or emergency presented to the court.
Particulars
(a) Interim order is granted in cases of real urgency.
(b) Parties have been before the court since May 2005.
(c) The issue of jurisdiction has been argued but the ruling is yet to be delivered.
(d) The plaintiffs have also argued their motion for interlocutory injunction and the court had adjourned it for ruling.
(c) The plaintiffs frustrated the delivery of the ruling in respect of the objection and their motion for interlocutory injunction because they filed an application to arrest the ruling.
(f) Application for injunction is a request for discretionary remedy which court can only grant upon assessment of all relevant facts.
(g) It is inequitable for a person who caused delay in the hearing of a matter to ask for interim injunction.
(5) The learned trial Judge erred in law in granting an interim order of injunction pending determination of a motion on notice to arrest an earlier ruling on injunction and to amend pleadings.
Particulars
(a) The application which was pending before the court was an application by the respondents to arrest ruling of an application for injunction filed by the respondents themselves.
(b) The respondents who moved the application for injunction was the same person who sought order of court to arrest ruling on same.
(c) The order reliefs sought by the respondent were to amend pleadings and to substitute another application for an earlier one moved.
(d) The order of the court which was made to last till the hearing of an application to amend is unknown to law.
(6) The learned trial Judge erred in law in granting an order of interim injunction when there was no substantial issue before him to warrant granting of the order.
Particulars
(a) The action was filed to challenge the decision of the Federal Government to sell its properties at Ikoyi, Lagos.
(b) There are materials before the court showing that the Federal Government was leasing the properties to members of the public and not selling.
(c) The competence of the plaintiffs to institute this action is already being challenged.
(d) There are materials before the court showing that the land was acquired through absolute grant by the then colonial government.
(e) There are also materials before the court to show that some members of the plaintiffs’ family did not authorize the action.
(f) Since sections of the ruling house being purportedly represented by the plaintiffs have denied that such authority was given, the court cannot make any order in favour of the plaintiffs.
(g) It is only when a competent party approaches the court for an order, that the court can make an order in his favour.”
The grounds on the notice of appeal filed on 7/11/05 are thus:-
1 The learned trial Judge erred in law when in granting interim injunction against the defendant, he disregarded the applicable principles of law and omitted to take into consideration facts relevant to the grant of equitable remedy of interim injunction.
Particulars
(a) Interim injunction being an equitable remedy, the learned trial Judge failed to consider the following:-
(i) The fact that the court has not determined defendant’s objection to the jurisdiction of the court to entertain the substantive suit.
(ii) The fact that it is a common ground that the defendant has been in exclusive and uninterrupted possession of the land in issue for over 100 years.
(iii) The fact that the defendant came into possession of the property by cession of the land in question by conquest.
(iv) The fact that the defendant’s opposition that the plaintiff has no cause of action has not been determined.
(v) The fact that there was no motion for interim injunction supported by an affidavit except the plaintiff’s motion dated 16th May, 2005 which was opposed by the defendant on ground of jurisdiction and in respect of which ruling is still being awaited.
(vi) The conduct of the plaintiff who filed a motion to arrest the ruling of the court on jurisdiction and motion for interlocutory injunction thereby preventing the court from deciding whether it could grant injunction or not.
(vii) The fact that the plaintiff’s suit was filed as far back as May 2005 and no order of interim injunction was made against the defendant.
(viii) There was no affidavit showing any new fact or facts warranting an urgent order of interim injunction pending the ruling which was adjourned as far back as 28th July, 2005.
(ix) The fact that the learned trial Judge had before him unchallenged evidence that a section of the Onikoyi family has dissociated themselves from the suit.
(x) The fact that Onikoyi family is one entity, and that an equitable order of injunction does not lie in favour of a section of Onikoyi family which is not complaining against the defendant’s action.
(xi) The fact that the plaintiff’s claim as formulated had ceased to exist following the decision of the defendant to lease and not sell the property which was the basis of the original claim of the plaintiff.
(xii) The fact that when the plaintiff observed that the plaintiff’s claim as formulated could not stand, it brought an application to amend the claim and was forced to withdraw it in view of the defendant’s objection.
2. The learned trial Judge erred in law when he held that he preferred the opinion of the learned author of the Injunctions and Enforcement of Orders to the decisions of the Supreme Court which stated emphatically and categorically that no coercive order can be made against defendant who is challenging the jurisdiction of the court to make such coercive order.
Particulars
(i) The learned trial Judge had before him the defendant’s objection challenging the jurisdiction of the court.
(ii) The court has not ruled over way or the other on the issue of jurisdiction.
(iii) The decisions of the Supreme Court such as Okoye & Ors. v. N.C. & F Co. Ltd. & Ors. (1991) 6 NWLR (Pt. 199) p. 501 at 534 and NDIC v. CBN (2002) 7 NWLR (Pt.766) p. 272 were cited to the learned trial Judge but preferred to ignore them and rely on academic opinion of the author.
(iv) The court, without asking the parties to address it, read out of context the opinion of the learned author of Injunctions and Enforcement of Orders because the author had on the same page 44 relied on by the learned trial Judge qualified his opinion clearly when he said:-
‘However, until the Supreme Court Rules on this important issue, the position remains that until the issue of jurisdiction has been determined, a court has no jurisdiction to make coercive order.’
And relied on it against the Supreme Court decisions.
(v) The duty of the court is to apply the law as it is and not as it should be or it ought to be, which the opinion of the author was.
(vi) The learned author of Injunction and Enforcement of Orders at the same page 44 of the book even though expressed the opinion relied upon by the court, however qualified his opinion by stating that the position of the Supreme Court still represents the law until reversed.
3. The learned trial Judge erred in law and breached the appellant’s right to fair hearing when he quoted out of context and relied on Chief Afe Babalola’s view at page 44 of the book Injunctions and Enforcement of Orders without offering the appellant’s opportunity to address the court on it.
Particulars
1. The appellant cited and relied on the cases of Okoye & Ors. v. NC & F & Ors. (1991) 6 NWLR (Pt.199) p. 501 at 534; NDIC v. CRN (2002) 7 NWLR (Pt.766) P .272.
2. The respondents did not cite any authority in reply.
3. The learned trial Judge in his ruling relied on the opinion of Chief Afe Babalola, SAN without affording the appellant opportunity to address.
4. The learned trial Judge erred in law, breached his fundamental right to fair hearing and demonstrated bias against the appellant when the court relied on an authority which was not canvassed before the court and for which the appellant was not given opportunity to address the court in granting an order against the appellant.
Particulars
(i) The appellant urged the court to discharge the order it earlier made because the motion upon which the order was made had been withdrawn.
(ii) The appellant also relied on the authorities to the effect that an order can not be made against a defendant who is challenging the jurisdiction of the court.
(iii) In reading his ruling, the learned trial Judge relied entirely on qualified opinion of Chief Afe Babalola, SAN in his book – Injunctions and Enforcement of Orders which was not relied upon or cited by any of the parties while arguing the application.
(iv) The learned trial Judge quoted the opinion of the learned author out of context.
The learned trial Judge erred in law when he failed to strike out or discharge the interim order of injunction made against the appellant on 14th October, 2005.
Particulars
(a) The interim order of injunction was made on 14 October, 2005 because the appellant was not ready for the hearing of the plaintiffs’ application to arrest the ruling of the court in respect of pending applications.
(b) The plaintiffs’ application to arrest the ruling was withdrawn and struck out on 28th October, 2005.
(c) There is no basis for the extension of the order because the application upon which it was predicated has been withdrawn and struck out.
6. The learned trial Judge erred in law when he made an order of interim injunction against the appellant which the issue of whether or not he has jurisdiction to entertain the matter is yet to be resolved.
Particulars
(i) The appellant filed a notice of preliminary objection challenging the jurisdiction of the court.
(ii) The learned trial Judge took argument on the preliminary objection along with the plaintiffs’ application for interlocutory injunction.
(iii) The ruling on the issue of jurisdiction has not been delivered.
(iv) The order of interim injunction was made in total disregard for the decision of the Court of Appeal and Supreme Court.
7. The learned trial Judge erred in law when he refused to follow the decision of the Supreme Court in NDIC v. CBN (2002) 7 NWLR (Pt.766) 272 that once the issue of jurisdiction is raised in a suit the court must not give an order in the suit affecting the defendant until that issue is settled.
Particulars
i. The learned trial Judge preferred the academic opinion of Chief Afe Babalola, SAN in his book on Injunction and Enforcement of Orders to the decisions of the Supreme Court cited before him.
ii. The opinion was formed long before the decision of the Supreme Court was made.
iii. The learned trial Judge misapplied the opinion of Chief Afe Babalola, SAN to this case in extending the order of interim injunction when the application upon which the order was made had been withdrawn and struck out.”
A perusal of all the above grounds of appeal in the two notices of appeal clearly shows that the primary complaint in all of them is in respect of, about and on the interim order of injunction granted by the lower court on the 14/10/05 and which it refused to vacate on 28/10/05. There can be no sincere and serious dispute about this. In brief, the complaints made in all the grounds can be said to be on:-
(a) jurisdiction of the lower court to make the interim order of injunction;
(b) whether it was right to have done so if it had jurisdiction; and
(c) whether it was right to have refused to discharge the interim order of injunction on the 28/10/05. These issues I agree, are wholly and entirely a combined attack on the interim order of injunction made by the lower court on the 14/10/05. This position is put beyond doubt and dispute by the opening paragraphs contained on the respective notices of appeal.
The notice of appeal dated 7/11/05 in particular, complained in the opening paragraph, of the decision of the court below refusing to vacate the interim order on the 28/10/05. However, as can be easily discerned from the grounds of appeal contained on the said notice of appeal, only ground No.5 can be said to have arisen or been called from the decision of that court refusing to discharge the interim order of injunction on 28/10/05. All the other grounds; Nos. 1, 2, 3, 4 and 6 of the said notice of appeal cannot seriously be said to have arisen from the refusal to discharge the interim order on 28/10/05 and so are liable to be struck out for being incompetent. Perhaps it needs to be pointed out here that the refusal to discharge the interim order is not the same thing as making the initial order when the court was required to consider and apply all the established principles of law set out in judicial authorities. In the refusal to discharge, the court below has no duty to consider and apply the said principles on the grant of the interim order. Accordingly, I find that ground 5 is a competent ground of appeal and is sufficient to make the notice of appeal dated 7/11/05, competent. But I agree that the two (2) notices of appeal do not contain any other ground of appeal complaining about any other decision or issue decided by lower court apart from the order of interim injunction made on the 14/10/05.
The next of the two (2) raised above is whether the said interim order of injunction effectively lapsed on the 25/11/05 and therefore does not subsist or no longer live to sustain the two (2) notices of appeal.
Let me say at the on set that since the order made was an interim one pending the determination of all applications before the court, once all the applications before the court were determined or if an interlocutory order of injunction was made, the interim order of injunction would thereby cease, lapse or end on the date the subsequent order was made or the applications determined.
The order of interim injunction was made by the court below on the 14/10/05 which is the subject of the notice of appeal dated 15/10/05 (attached to the sworn affidavit of the notice of preliminary objection as exhibit KA2) was in the following terms:-
“1. That the 1st defendant or its agents or servant are hereby restrained interimly from selling, leasing or otherwise transferring with possession of the subject matter of the suit pending the hearing and determination of all applications before the court.
That the matter is now adjourned to 24th day of October, 2005, for hearing of the plaintiff’s motion on notice dated 19th day of September, 2005.”
The terms of the order are quite clear and unambiguous. The order was to pend, remain in force and effective until the hearing and determination of all applications before the court.
As seen earlier, the contention of the learned senior counsel for 1st – 4th respondents is that the said order made by lower court on 14/10/05 lapsed on the 25/11/05 when that court delivered a ruling granting the order of interlocutory injunction against the appellant and dismissing the preliminary objection of the appellant on ground of jurisdiction. The ruling was annexed to the affidavit in support of the notice of preliminary objection as exhibit KA3.
It is not disputed in the preliminary objection that the lower court had on 25/11/05 delivered a ruling in which an order of interlocutory injunction was granted and made against the appellant. The contention of the appellant is that since the ruling was delivered in disregard of a motion for stay of proceeding of the lower court pending in this court, it is liable to be set aside.
What I note on this point is that the learned senior counsel for the appellant did not suggest and contend that the lower court lacked the power and jurisdiction to deliver the said ruling on 25/11/05 but that it disregarded the motion before this court in doing so. I do not hesitate to agree with the learned senior counsel for the appellant that on the authority of the Supreme Court case of Mohammed v. Olawunmi (1993) 5 SCNJ 94 at 112-7, (1993) 4 NWLR (Pt.288) 384 and other cases, the attitude of deliberate disregard to the processes of this court in particular, by any lower court/tribunal, borders on judicial impertinence and even an affront on the authority of this court. Such conduct should be deprecated in the strongest possible judicial language and the lower court be made to realize that they are constitutionally bound to accord respect to the authority and powers of this court which are exercised through its processes issued in accordance with the law and practice. If the hierarchy of the courts provided for in the constitution and the rule of law are to have meaningful and practical effect at all, then, a lower court must avoid any action or attitude that tend to or would result in the defiance and disrespect to the processes of a higher court. For me, because of my zero (0) tolerance to willful and disdainful defiance and disregard of the processes and authority of a higher court by lower courts, I would be one to swiftly apply the strictest available judicial sanctions on such recalcitrant courts.
Before doing so however, it is pertinent and imperative in the present situation to ask and answer the question; whether or not the delivery of the ruling on the 25/11/05 by the lower court amounted to a deliberate disregard and defiance of the processes of this court on the facts and circumstances disclosed in the preliminary objection.
From the record before us, the lower court delivered two rulings on the 25/11/05 as follows:
(1) the ruling on the appellant’s motion on notice dated 10/11/05 in which the following orders were sought:-
“An order that this court shall not take any further step whatsoever in this suit including but not limited to the reading of the ruling fixed for 11th November, 2005, pending the determination of the motion for stay of proceedings pending before the court of Appeal.
And for such further order(s) as this Honourable Court may deem fit to make in the circumstances.”
(2) the ruling on the appellant’s preliminary objection on ground of jurisdiction and the respondents’ application for interlocutory injunction.
The two (2) rulings are attached to the affidavit in support of the notice of preliminary objection as exhibits KA4 and KA3 respectively.
It is important to note here that there is no appeal against any of the two (2) rulings of the lower court delivered on the 25/11/05.
Since the above applications or motions were filed in the court below by the parties and were pending before it, that court was not only entitled to but under a legal duty to hear and determine same on their merits. See Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511; Nalsa & Team Associates v. N.N.PC. (1991) 8 NWLR (Pt.212) 652 at 676; Brawal Shipping(Nig.) Ltd. v. F I. Onwadike Co. Ltd. (2000) FWLR (Pt.23) 1254, (2000) 11 NWLR (Pt.678) 387; Mobil Producing (Nig.) Unltd. v. Monokpo (2003) 12 SCNJ 206, (2003) 18 NWLR (Pt.852) 346; Magna Maritime Services v. Oteji (2005) All FWLR (Pt.270) 1995 at 2012, (2005) 14NWLR (Pt.945) 517. That was what the court below precisely and dutifully did in the ruling on the appellant’s motion dated 10/11/05.
Arguments were taken from learned counsel for the parties on the said motion and ruling therein reserved for and delivered on the 25/11/05. The power and jurisdiction of the lower court to hear and determine all pending applications before it cannot, with due respect to the learned senior counsel for the appellant, be taken away by the existence of another or other applications pending in this court. In addition, that court was entitled in law to decide such pending applications before it on the merits of the facts and circumstances as well as the evidence in support thereof. In my firm respectful view, the court below was entitled to and had the power and jurisdiction to either grant or refuse the reliefs sought by the appellant in his motion dated 10/11/05 set out earlier. In its ruling on the said motion delivered on the 25/11/05, it decided to refuse the said reliefs.
The appellant did not legally and properly challenge that decision either by way of an appeal or filing a similar application in this court thereafter. The appellant’s pending application for stay of proceedings of the court below, was filed on the 9/11/05 in this court; a day before he filed the one dated 10/11/05 in the court below. By the provisions of Order 3, rule 3(4) of the Court of Appeal Rules, 2002, whenever under the rules, an application may be made either to the court below or to this court, it shall not be made in the first instance to this court except where there are special circumstances which make it impossible or impracticable to apply to the court below. The appellant did not disclose the existence or presence of any special circumstances which made it impossible or impracticable to apply to the court below before filing the motion dated 9/11/05 in this court. The filing by the appellant of the motion dated 9/11/05 in this court and then the one dated 10/11/05 in the court below, both for stay of further proceedings in the court below is undoubtedly a non-compliance with the said provisions of the rules of this court.
That non-compliance cannot be used to challenge the power and jurisdiction of the court below to deliver its ruling on the pending motions before it. If anyone deserves any penalty in the above circumstances, it is the party that failed or refused to comply with the rules of the court. I do not find any legal error whatsoever, any wrong, any deliberate and/or disrespectful defiance by the court below of the processes or power/authority of this court in delivering the ruling on the 25/11/05 in respect of the appellant’s motion dated 9/11/05 that was argued before it. It was right to have delivered the said ruling in discharging the legal duty on it.
Having refused the appellant’s reliefs on the motion dated 10/11/05 on its merits, that court was again entitled to and right to have delivered the ruling on the preliminary objection of the appellant on ground of jurisdiction and the respondent’s motion for interlocutory injunction on the same day and immediately thereafter. There was no valid legal inhibition to prevent it from so doing.
In the result of all I have said above, my finding is that the delivery of the two (2) rulings by the court below on the 25/11/05 did not amount to a defiance by that court of the processes of this court and in particular, the appellant’s motion for stay of proceeding dated 9/11/05 pending in this court. Accordingly, the said rulings are valid, effective and binding until set aside by this court; the court of competent jurisdiction.
The above finding has the effect that since the ruling of the court below granting interlocutory injunction against the appellant remains valid, effective and binding, the earlier order of interim injunction made against the appellant has been overtaken by the grant of the interlocutory injunction on the 25/11/05 which also concluded the determination of all pending applications in that court.
Put another way, the interim order of injunction made against the appellant ceased to exist, became extinguished, was discharged or vacated and effectively lapsed by the grant of the interlocutory order of injunction made in the ruling delivered on the 25/11/05.
The end or death so to say, of the interim order of injunction was automatic on the grant of the later interlocutory order of injunction against the appellant on the 25/11/05. Praying Band of C & S v. Udokwu (1991) 3 NWLR (Pt. 182) 716; Oyefeso v. Omogbehin (1991) 4 NWLR (Pt.187) 596; Kotoye v. CBN (1989) 2 SCNJ 31, (1989) 1 NWLR (Pt.98) 419; A.I.C. Ltd. v. N.N.PC. (2005) 5 SC (Pt. 11) 60, (2005) 11 NWLR (Pt. 937) 563.
I therefore agree with the learned counsel for the respondents that the said interim order of injunction against the appellant lapsed and effectively came to an end automatically with the grant of the interlocutory injunction in the ruling delivered on the 25/11/05.
In the above circumstances, since all the grounds of appeal contained in the two notices of appeals filed by the appellant (set out earlier) are in their communal effect, an attack on the interim order of injunction against the appellant, I once again find myself in agreement with the learned senior counsel for the respondents that the appellants’ appeals are now academic since the interim order of injunction had ceased to exist and effectively lapsed on the 25/11/05. All the grounds on the notice of appeal dated 15/10/05 and the only competent ground No.5 of the notice of appeal dated 7/11/05 do not contain any live issue that can sustain the two appeals.
Because the courts for good reasons do not and should not engage in mere academic exercise in the consideration and determination of matters that come before them, the two notices of appeal dated 15/10/05 and 7/11/05 filed by the appellant are hereby struck out for being incompetent. Eperokun v. Unilag (1986) 4 NWLR (Pt.34) 162; Olaniyi v. Aroyehun (1991) 5 NWLR (Pt.194) 652; Asafa Foods Factory Ltd. v. Alraine (Nig.) Ltd. (2002) 12 NWLR (Pt.781) 353; Attorney-General of Anambra State v. Attorney General of the Federation (2005) All FWLR (Pt. 268) 1557, (2005) 9 NWLR (Pt.931) 572; Onochie v. Odogwu (2006) All FWLR (Pt.17) 544 at 579, (2006) 6 NWLR (Pt.975) 65.
Since all the motions filed by the appellant are predicated on the two (2) notices of appeal which have now been struck out, they cannot survive the end of the source of their being. The motions are struck out along with the notice of appeal.
Each party to bear the costs of prosecuting the matter in this court.
ADAMU, J.C.A.: I have had the preview of the lead ruling of my learned brother, M. L. Garba, JCA in this preliminary objection. I entirely agree with and adopt the reasons given and the conclusion reached in the said lead judgment which 1 hereby adopt as mine. It is only by way of emphasis that I will add my comments or remarks as hereunder.
By way of preliminary observation, the preliminary objection dated on 16th and filed on 17th of February, 2006 is said to be brought pursuant to Order 3 rule 7 of the Court of Appeal Rules, 2002 and section 6(6)(b) of the 1999 Constitution of the Federal Republic of Nigeria. With due respect to the learned senior counsel for the 1st-t4th respondents, these are wrong citation of the law (the rules of this court and the constitution). The correct citation should be Order 3 rule 15(1) of the court of Appeal Rules, 2002. I believe that this wrong citation is due to an oversight on the pat1 of the learned senior counsel for the 1st – 4th respondents. Even the constitutional provision cited as the basis for the application is in my view not relevant or apposite. Consequently, we are left with only the last basis or rule cited under which the application is said to be brought namely the inherent jurisdiction of the court. I am not sure if this general phrase can cover or support the preliminary objection in the instant case. In any case even if it is accepted as valid and capable of supporting or sustaining the preliminary objection, the learned senior counsel must be admonished to be more diligent in future and to scrutinize his processes properly before filing them in the court despite any urgency. Even the notice of additional orders on the preliminary objection is not shown to be brought under any rule or law and is therefore liable to be struck out. However, despite the above observations, I will spare the notice of the preliminary objection for having been brought under the inherent jurisdiction of the court and bearing in mind that it is an attack on the competence of the two notices of appeal filed by the appellant/applicant which are the basis or foundation of every appeal. Thus even without the preliminary objection, this court is entitled to consider suo motu and on its own motion, the competence of the two notices of appeal and their grounds and if found incompetent, to strike them out accordingly. By striking out the notices or the grounds thereto, the inevitable effect will be that all the motions or interlocutory applications in this case will be rendered incompetent as there will be no appeal to support them. It is pertinent to state here that the two notices attacked in the preliminary objection are based on the interlocutory decision of the lower court (or the interim injunction dated 14/10/05). The appellant/applicant cannot challenge that decision in the motion without any valid appeal against that decision.
It is trite that whatever grave error or errors are committed by the trial court in any matter, that may only attract some adversary comment by the appellate Judges who cannot do anything to correct the said errors unless where there is an appeal validly brought before them by the parties on the point. Thus, unless an aggrieved party who is affected by the errors of the trial court brings the matter on appeal by filing a valid notice of appeal, an appellate court will be powerless and hamstrung and will have no jurisdiction to correct the errors no matter how grave they may be. A valid notice of appeal consists of or is made up of grounds of appeal which themselves must be valid and competent. If any ground(s) of appeal is incompetent, the complaint in that ground cannot be corrected or entertained by the appellate court. Also, if all the grounds are incompetent, the whole notice of appeal will be rendered incompetent and liable to be struck out with a result that there is no appeal to be heard by the appellate court – See Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt.55) 179; Ekpa v. Utong (1991) 6 NWLR (Pt.197) 258; Ejowhomu v. Edok-Eter Mandilas Ltd. (1986) 5 NWLR (Pt.39) 1 and Bhojsons Plc v. Daniel-Kalio (2006) All FWLR (Pt.312) 2038 at 2064 – 2065, (2006) 5 NWLR (Pt.973) 330. It is because of this fundamental nature of the notice of appeal (which is akin to the issue of jurisdiction) attacked in this preliminary objection even though under a wrong law, that it will be spared under the inherent jurisdiction of this court so that it can be considered on its merit. This sparing approach to the defect in the preliminary objection in the instant case is permitted under Order 3 rule 15(3) by the use of the word “may” and the court dealing with it is permitted to make “such other order as it thinks fit.”
On the merit of the preliminary objection, the six (6) motions filed by the appellant/applicant can be ignored and my attention will be focused only on the two notices of appeal attacked in the said preliminary objection the determination of which will affect the fate of the motions. Accordingly, I agree with the finding in the lead ruling that the two notices of appeal and their grounds as well as particulars are challenging the order of interim injunction made by the trial court. They are the notices of appeal dated 15/12/05 and 7/11/05 respectively and they are reproduced verbatim in the lead ruling. It is not in dispute that the interim order attacked in the said notices of appeal had been made pending the determination of the application for interlocutory injunction and the preliminary objection against the jurisdiction of the trial court which were both ruled upon or determined on 14/10/05. From the very nature of the interim order of injunction, which is normally made by the court in the interim and in a case of utmost urgency aimed at preserving the res or maintaining the status qua of the parties, it was not meant to last forever or ad-infinitum. Rather, an interim order as in the instant case which is an equitable remedy, is normally made to last for a very short time or period (normally not more than a week) and will lapse or become discharged when the party against whom it was made was served with the substantive application for interlocutory order or motion on notice. In the instant case, the applicants argument that it was extended to 28/10/05 is therefore misconceived as the said interim order had lapsed either by the service of the motion for interlocutory injunction on them or by the determination or ruling on the said motion on 25/11/05 – See Leedo Presidential Motel Ltd. v. Bank of the North Ltd. (1998) 10 NWLR (Pt.570) 353; Sabru Nigeria Ltd. v. Jezco Nigeria Ltd. (2000) 8 WRN 149, (2001) 2 NWLR (Pt.697) 364; Kotoye v. CBN (1989) 1 NWLR (Pt.98) 419; Unibiz (Nig.) Ltd. v. CBCL Ltd. (2003) 6 NWLR (Pt.816) 402; Alcatel Kabelmetal (Nig.) Plc v. Ojuegbele (2003) 2 NWLR (Pt.805) 429; and Bogban v. Diwhre (2005) 16 NWLR (Pt.951) 274 at 295-296.
Even though the applicants second notice of appeal is said to raise in its 7th ground, the issues of jurisdiction, that ground is argumentative and narrative as it cites a Supreme Court’s authority and Chief Afe Babalola’s book on injunctions etc. and it is therefore not qualified to be a valid ground under Order 3 rule 2(3) of the Court of Appeal Rules, 2002. It can consequently be overlooked and only the other grounds which all complain against the interim order will be considered or regarded in the determination of the preliminary objection. Since the applicants notices of appeal were filed or deemed to be filed on 7/11/05 (as the last notice superceded the former) and they raise in their grounds, complaints on the order that had been discharged and was therefore no longer in existence having been overtaken by an interlocutory order on which no appeal has been filed (until now) by the applicants, their appeal against the dead order or decision is or has been rendered hypothetical and merely academic. It is a settled principle that courts do not act in vain. Nor do they embark on an academic exercise as they are not academic institutions. Therefore, whenever an issue is brought to the court in an appeal, application or any other process before it and it is merely hypothetical and calling for an academic exercise which cannot be enforced as in the instant application such an issue or question is not only frowned at by the said court but it refrains from embarking into much a purposeless exercise – See Titiloye v. Olupo (1991) 7 NWLR (Pt.205) 519 at 534; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290 at 330; Eperokun v. University of Lagos (1986) 4 NWLR (Pt.34) 162 at 179; Macaulay v. R.Z.B. of Austria (2003) 18 NWLR (Pt.852) 282 at 300; and Bhojsons Plc. v. Daniel Kalio (supra at p. 2058 of the report).
The respondent’s submission that attracts me is to the effect that whenever there is a motion or application to dismiss, or strike out, or otherwise terminate an application or process and another motion/application to regularize the same application or process, the latter should be heard and determined in priority over the former.
I agree with this submission which is based on the interest of justice and good sense. However, the principle in the submission is only applicable to a situation where there are two contemporary motions. It has no application where a preliminary objection is raised on the competence of the process attacked (i.e. the notices of appeal in the instant case). The law is well settled that whenever a preliminary objection is properly raised attacking the competence of an appeal or an application (or a notice of appeal) as in the instant case it should be considered first at the preliminary stage before going into the merits of the appeal or the application as the case may be – See Goji v. Ewete (2001) 15 NWLR (Pt.736) 273; Onyekwuluje v. Animashaun (1996) 3 NWLR (Pt.439) 637; NNB Plc v. Imonikhe (2002) FWLR (Pt.l18) 1385; (2000) 8 NWLR (Pt.670), (2002) 5 NWLR (760) 294; and Nigerian Navy v. Garrick (2006) All FWLR (Pt.3]5) 45 at 63, (2006) 4 NWLR (Pt.969) 69.
On the applicant’s complain against the refusal of the learned trial Judge to stay proceeding and the delivery of his ruling despite the service on him of the motion on notice filed in this court on 9/11/05, I consider the heavy weather made by the applicant on the alleged attempt by the learned trial Judge to overreach the decisions of this court and render nugatory the outcome of his application for stay as a mere exaggeration based on a misrepresentation of the true facts of the matter. In fact, the motion for stay of proceedings had been wrongly filed on 9/11/05 in this court before filing a similar application in the lower court on 10/11/05. This offends the rule of this court under Order 3 rule 3(4) which requires the applicants in similar circumstance where they can make application both in this court and in the lower court to file or make it first at the lower court before coming to this court when such an application is refused by the said lower court. Consequently, the applicant’s applications for stay of proceedings in the instant case was incompetent and all the hues and cries of the said applicant against the disregard of their pending application before this court by the learned trial Judge was only a subterfuge. They are and merely shedding crocodile tears.
For my above consideration of the merits of the preliminary objection, I also uphold it. Consequently, the two notices of appeal filed by the appellant respectively on 15/10/95 and 7/11/05 as well as all the appellant’s six (6) motions predicated or based the said notices are hereby struck out just as done in the lead ruling. I also make no order on costs.
DENTON-WEST, J.C.A.: I have had the privilege of reading in draft the ruling of my learned brother, M. L. Garba, JCA now delivered and I fully agree with same, and I would wish to highlight on one or two aspects of the ruling by way of contribution.
The respondents in this suit being the plaintiffs in the Federal High Court sued the Federal Government of Nigeria that is Attorney-General of the Federation and also the Attorney-General of Lagos State in respect of the land in the Ikoyi area of Lagos State.
The respondents sought injunctions and declarations against the appellant.
At the inception of the proceedings before the lower court, the respondents filed an application for interim injunction against the plaintiff while the defendant filed a notice of preliminary objection to the suit.
At the court below, the appellant contended that the notice of preliminary objection should be heard first since it challenges the jurisdiction of the court, while the respondent argued that both applications be taken together.
The priority of the pending applications became an issue between the parties and the trial Judge after hearing arguments from both sides delivered its ruling which was in favour of the respondents.
The lower court held on the 3rd of June, 2005 that both applications should be heard together.
The six applications pending before the court emanate from the said ruling of the lower court. The applications are:
(1) The appellants motion on notice seeking for an order of this court setting aside the findings of the lower court.
(2) The appellants three applications for departure from the rules.
(3) Appellants application to amend the notice of appeal.
(4) The respondents notice of preliminary objection.
At the court below, the appellant contended that the notice of preliminary objection should take priority over the motion for interim injunction and that both should not be heard together; that in fact is the crux of the present appeal. The appellants have argued in its brief before this court that the objection of the respondents be heard last and its application for departure from the rules be heard first in order to place all the relevant facts before the court and the application for amendment of the notice of appeal since it borders on jurisdiction of court.
The respondents in their brief of argument on its notice of preliminary objection filed on the 11th day of April, 1006 formulated two issues for determination;
“(i) whether or not the Court of Appeal has jurisdiction in the circumstances to entertain the defendants/appellants notices of appeal dated 15th October, 2005 and 7th November, 2005 respectively.
(ii) whether or not the defendant/appellants application of 9th November, 2005, 30th November, 2005 and 20th February, 2006 ought not in the circumstances to be dismissed and or struck out.”
The respondents stated in paragraph 3.4 of their brief, that; this court has no jurisdiction or ought not to exercise its jurisdiction academically, the interim injunction appealed against having since lapsed. The respondents relied on A.-G., Federation v. ANPP (2003) 18 NWLR (pt.851) 182 C-F; Union Bank of Nigeria Ltd. v. Edionseri (1988) 2 NWLR (Pt.74) 93 at 105; Tanimola & Ors. v. Surveys and Mapping Geodata Ltd. & Ors. (1995) 6 NWLR (Pt.403) 617 at 627.
The respondent argued that the grounds of appeal can only attack the decision complained about and may not be formulated outside same. The lower court having not made any orders of interim injunction on the 28th of October as stated by the appellant in the notice of appeal, the same is incompetent and should be struck out.
The respondents relied on Obatoyinbo v. Oshatoba (1996) 5 NWLR (pt.450) 531 at 549, Ogbanu v. Oti & 3 Ors. (2000) 8NWLR (pt.670) 582 at591 G-H.
The second issue formulated by the respondent is not only corollary but dependent on the first issue.
The fifth respondent in its brief of argument filed on the 5th of June, 2006 argued that the applications for amendment of the notice of appeal and departure from the rules can only enjoy the entertainment and or priority the appellant intends if the court finds a subsisting valid appeal.
The appellant in its reply on point of law filed on the 5th of June, 2006 elaborated its earlier argument that the court had sub silenso decided the issue of jurisdiction when in defiance to the argument of the appellant on its objection, it proceeded to grant the interim injunction sought by the respondents. This, despite that the ruling is silent on the issue of jurisdiction.
Without necessarily recanting the brilliant analysis in the lead judgment of my learned brother, I find the simple submissions in the brief of the 5th respondent most illuminating in this appeal. It was interesting to observe that while the 5th respondent argued that in the absence of a valid subsisting appeal the Court of Appeal could not entertain any of the applications of the appellant, the appellant in its reply stated that the issue of jurisdiction was connoted in the ruling of the lower court complained against.
Upon my perusal of the records of appeal, I agree with the respondents that no interim injunction was made by the court on the 28th October, 2005. It is also interesting to note that the argument of the appellant in its reply brief that the issue of jurisdiction is relative to the decision complained against and as such the notice of appeal being valid and subsisting pre-supposes that the application for amendment presently before the court must succeed.
The law is settled, that you cannot put something on nothing and expect it to stand. See Mcfoy v. U.A.C. (1961) 3 All E.R. I therefore agree with the uncontroverted position of the 5th respondent that unless this court finds a subsisting valid appeal before it, the applications of the appellant are otiose and grossly incompetent.
In my firm view, unless this court grants the application for amendment sought by the appellant and further agree with the appellant that the ruling of the 28th of October, 2005 is related to the issue of jurisdiction/the grounds of appeal, this appeal must fail.
I fully agree with the 5th respondent that the appellant intends to reverse the ruling of the 25th November, 2005 (where the court below asserted that it had jurisdiction to entertain the suit) by the present appeal. The grounds herein intended to be imported through the pending application would certainly have been competent in that perspective.
The present appeal not challenging the particular decision of the court complained against is therefore incompetent ab-initio. See Aroyebi v. Governor of Oyo State (1994) 5 SCNJ p. 62, (1994) 5 NWLR (Pt. 344) 290. Also the order of interim injunction having abated, the prayer of the appellant to set same aside is otiose since this court will not make orders in vain. See Olaniyi v. Aroyehun (1991) 5 NWLR (Pt.194)652; A.-G., Anambra State v. A.-G., Federation (2005) All FWLR (268) 1557, (2005) 9 NWLR (Pt.931) 572. In the absence of a valid subsisting appeal I do not see how the applications filed by the appellant could survive or be heard. Assuming without conceding that a valid appeal existed as it were, the appellant’s action would still have failed for the first reason stated earlier above.
The appellant urged this court to hold the court below in contempt, for defying the process of this cou11when it proceeded to deliver its ruling on the applications before it when same had been filed in this court. Suffice to state that I am also in full agreement with the lead judgment in this regard. At this point, I urge that it is necessary and of very great importance to the welfare of the citizenry especially the litigating public that a stop be put to censures frequently placed on com1s of Justice in this court try, especially when C they act bonafide. Cases may happen and they abide in which Judges may once in a while act malafide, and when that happens the law has afforded a remedy; and thus the party so afflicted or injured is entitled to pursue every available remedy which the law allows to correct the mistake. Therefore, parties to a suit should be very wary indeed careful unless it is very clear and apparent not to subject, or culminate the proceedings of a court of Justice, the obvious tendency of it, is to weaken the administration of justice and in consequence, sap the very foundation of the Constitution which gives us all the rights and access to justice.
E The rules of this court by the provisions of Order 3 rule 3(4) of the Court of Appeal Rules, 2002 provide for the same application to have first been filed, heard, and refused by the lower court before same can be filed on appeal. The averment of the appellant, that the court below would not have granted the same application and so it was needless to have followed the rules based on the fact that the trial court had hitherto refused the appellant’s previous applications certainly does not constitute the special circumstance which the appellant seeks refuge with, especially when the appellant subsequently filed the same application in the court below after filing same in this court. This procedure in my firm view is a gross abuse of the court process, and should be frowned at, and a court is not only entitled but bound to put an end to such proceedings if at any stage and by any means it becomes manifest that such proceeding is irregular or incompetent.
For these and the fuller reasons contained in the lead judgment of my learned brother, all the appellant’s applications are hereby struck out, I abide by every consequential order in the lead ruling.
Applications struck out.
Appearances
Chief Afe Babalola, SAN (with him, A. George-Okoli, Olu
Daramola, Sesan Dada, S. O. Akanni and R. O. Aderomo) For Appellant
AND
K. Awodein, SAN (with him, B. A. M. Fashanu, SAN and A. Uwaka)
Prof. Taiwo Osipitan, SAN (with him, Lawai Pedro, R. A. and Gbadamosi, S. Kareem, T. Okunuga) For Respondent
