BENJAMIN I. ADAMU V. A.-G., NASARAWA STATE & ORS.
(2006)LCN/2127(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of December, 2006
CA/J/161/2005
RATIO
This has been the attitude of the courts in plethora of cases that the trial court must warn itself not to delve into the substantive issues to be trashed during the trial at the interlocutory stage. In Obioha v. Military Administrator Imo State (1998) 10 NWLR (Pt. 569) 205 at 208, the court held that – “in an application for interlocutory injunction the court must be satisfied that there is a real or substantial question to be tried in the substantive suit, although at that stage the rights of the parties cannot be determined. That is a function that will be performed by the court in the substantive suit. PER NDUKWE-ANYANWU, J.C.A.
In Saraki v. Kotoye (1990) 4 NWLR (Pt. 143) 144 at 149 the Supreme Court has this to say: “In dealing with an interlocutory application, the court will confine itself strictly to the point which it is called upon to decide, and will express its opinion on the case only so far as is necessary to show the grounds upon which the interlocutory application is disposed of, and, in the absence of very special circumstances, will impose only such restraint as will suffice to stop the mischief and keep things as they are until the hearing.” See also Shanu v. Afribank (Nig.) Plc (2002) 17 NWLR (Pt.795)185 at 230-231 where Uwaifo, JSC succinctly stated: ” … a court should not delve into issues meant for the substantive suit or appeal when considering relevant interlocutory application” “In the determination of any interlocutory application pending the trial of the substantive case, care should be taken not to make pronouncements which may prejudice the trial of the claims filed and still pending before the court. To do otherwise is to prejudice the matter in respect of which evidence is still to be led.” See Globe Fishing Industries Ltd. v. Coker (1990) 7 NWLR (Pt. 162) 265 at 301 where Akpata, JSC held that “The court should always refrain in its ruling on an application for an interlocutory injunction from resolving matters which should be adjudicated upon at the trial. It should not make pronouncements which would make the trial a mere formality and a mockery of judicial procedure.” Obeya Memorial Hospital v. Attorney-General of the Federation (supra). PER NDUKWE-ANYANWU, J.C.A.
JUSTICES:
RABIU DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria
IFEYINWA CECILIA NZEAKO Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
Between
BENJAMIN I. ADAMU – Appellant(s)
AND
1. A.-G., NASARAWA STATE
2. KARU AREA PLANNING & DEV. AUTHORITY
3. ARC. HALADU ABUBAKAR – Respondent(s)
NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Hon. Justice John A. Viko of the High Court of Justice, Keffi, Nasarawa State delivered on the 17th day of February 2005 in suit No. NSD/K47/2002.
The appellant being dissatisfied with the same ruling appealed to this court on the 1st day of March 2005.
The issue articulated for determination is as follows:
Whether or not the learned trial Judge is right, putting into consideration the claims of the plaintiff before the trial court in making pronouncement in his ruling of 17/2/2005 to the effect that the plaintiff “is not in legal possession of the land” which is the subject matter of the suit, and that “the plaintiff has been allocated another land which he has accepted and not complained” in an interlocutory application for injunction when no evidence has been led at all in the substantive suit.
The appellant filed his brief of argument on the 13th day of October 2005. The respondent failed to file its brief of argument within time.
On the 23rd day of January 2006, the appellant filed a motion on notice seeking for an order for this appeal to be heard and determined on the appellant’s brief of argument, the respondent having failed to file his brief within time.
The appellant’s counsel adopted his brief of argument filed on 13/10/2005 whilst the respondents’ counsel had nothing to urge on behalf of the respondents.
The learned counsel for the appellant in his argument stated that the power of a court to hear and determine interlocutory applications in a suit pending before it does not extend to determining the claims of the parties in the substantive suit before the commencement of hearing. Learned counsel cited the following cases to buttress this assertion, namely:
1. F.S.B. International Bank Ltd. v. Imano (Nig.) Ltd. & 1 Or. (2000) 7 SCNJ 65 at 70 ratio 141 (2000) 11 NWLR (Pt. 679) 620.
2. Thomas A. Edison Ltd. v. Bullock (1912) 15 CLR 679 at 689.
3. Nathanial Kotoye v. CBN & Ors. (1989) ANLR 76 at 109 – 110; (1989) 1 NWLR (Pt. 98) 419.
The appellant instituted an action against the defendant/respondent in the High Court of Keffi, Nasarawa State claiming the following reliefs:
“(a) A declaration that plaintiff is not occupying illegally and/or unlawfully the piece of land covered by Nasarawa State right of occupancy No. NS 011 measuring 0.096 Hectare lying and situate at Karu, close to Karu Local Government Secretariat, Nasarawa State which land is demarcated with property beacon Nos. P1, P2, P3, P4 and back to the starting point.
(b) An order of perpetual injunction restraining the defendants either by themselves, their privies and/or agents by whatever name called (whether natural or artificial) or anybody for that matter from further demolishing plaintiff’s buildings and/or structures on the said piece of land in question and/or tampering with plaintiff’s peaceable occupation of same.
(c) Payment to the plaintiff” the sum of ten million, two hundred and thirty six thousand naira (10,236,000.00) as special damages being the valued cost of reconstructing and replacing plaintiff’s damaged properties.
(d) Payment to the plaintiff by the defendants the total sum of nine million, two hundred and sixty-one thousand naira only (9,261,000.00) as special and general damages for financial losses, inconveniences and embarrassment occasioned to plaintiff by the defendants and/or their agents as a result of the unwarranted activities and/or actions of the defendants and/or their agents which delayed plaintiff’s development of the land in question.
(e) Further or other orders as the Honourable Court may deem fit to make in the circumstances of the case.”
Pleadings were duly exchanged. However before the commencement of hearing the defendant/respondent went ahead and demolished some of the buildings and structures erected on the land which is the subject matter of the suit.
The appellant then on 6/11/2003 filed a motion on notice for an interlocutory injunction “restraining the defendants and/or their agents by whatsoever name called from further demolishing plaintiff’s/appellant’s building and structures on the piece of land in question.”
The court in its ruling on 17/2/2005 refused to grant an order for interlocutory injunction against the defendant. The court held inter alia “that the plaintiff/appellant is not in legal possession of the land which is the subject matter of the suit and that the plaintiff has been allocated another land which he has accepted and not complained.”
“The object of interlocutory injunction is to protect the plaintiff/appellant against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. See the case of Ekwomchi v. Ukwu (2002) 1 NWLR (Pt. 749) 590 at 593 – 595.
“When an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be a violation of the plaintiff’s legal rights is made upon contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the right or the violation of it or both is uncertain and will remain uncertain until final judgment is given in the action. It was to mitigate the risk of injustice to the plaintiff during the period the uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction. ”
However, “it is not part of the court’s function at interlocutory stage of litigation to try to resolve conflicts of evidence in affidavits as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature consideration. These are matters to be dealt with at the trial.”
Obeya Memorial Hospital v. Attorney-General of the Federation (1987) 3 NWLR (Pt. 60) 325 at 337 – 338.
This has been the attitude of the courts in plethora of cases that the trial court must warn itself not to delve into the substantive issues to be trashed during the trial at the interlocutory stage.
In Obioha v. Military Administrator Imo State (1998) 10 NWLR (Pt. 569) 205 at 208, the court held that –
“in an application for interlocutory injunction the court must be satisfied that there is a real or substantial question to be tried in the substantive suit, although at that stage the rights of the parties cannot be determined.
That is a function that will be performed by the court in the substantive suit.”
In Saraki v. Kotoye (1990) 4 NWLR (Pt. 143) 144 at 149 the Supreme Court has this to say:
“In dealing with an interlocutory application, the court will confine itself strictly to the point which it is called upon to decide, and will express its opinion on the case only so far as is necessary to show the grounds upon which the interlocutory application is disposed of, and, in the absence of very special circumstances, will impose only such restraint as will suffice to stop the mischief and keep things as they are until the hearing.”
See also Shanu v. Afribank (Nig.) Plc (2002) 17 NWLR (Pt.795)185 at 230-231 where Uwaifo, JSC succinctly stated:
” … a court should not delve into issues meant for the substantive suit or appeal when considering relevant interlocutory application”
“In the determination of any interlocutory application pending the trial of the substantive case, care should be taken not to make pronouncements which may prejudice the trial of the claims filed and still pending before the court. To do otherwise is to prejudice the matter in respect of which evidence is still to be led.”
See Globe Fishing Industries Ltd. v. Coker (1990) 7 NWLR (Pt. 162) 265 at 301 where Akpata, JSC held that
“The court should always refrain in its ruling on an application for an interlocutory injunction from resolving matters which should be adjudicated upon at the trial. It should not make pronouncements which would make the trial a mere formality and a mockery of judicial procedure.”
Obeya Memorial Hospital v. Attorney-General of the Federation (supra).
With the foregoing it was wrong for the trial Judge to comment on the claims in the substantive matter, which read thus:
“Since he is not in legal possession. They have allocated another land which he has accepted and has not complained.”
These are issues to be trashed out during trial by leading credible evidence to prove same.
“Care should be taken not to make pronouncements which may prejudice the trial of the claims filed and still pending before the court. To do otherwise is to pre-judge the matter in respect of which evidence is still to be led.”
The trial Judge failed to warn himself to resist the temptation of delving into the substantive issues in an interlocutory application The appeal of the appellant is meritorious and ought to succeed. Accordingly, I allow the appeal. It is hereby ordered that the Chief Judge of Nasarawa State transfer this matter to another court for trial of the substantive case.
R. D. MUHAMMAD, J.C.A.: The appellant was the plaintiff at the lower court. He sued the respondents seeking for a declaration that he was not unlawfully occupying a piece of land lying and situate at Karu in Nasarawa State covered by Right of Occupancy No. NS 011. He also sought for a perpetual injunction against the defendants and special and general damages against the said defendants. Pleadings were filed and exchanged. Before the hearing of the matter commenced, the appellant brought a motion on notice praying for an order of interlocutory injunction restraining the respondents from further entering, demolishing and/or clearing the remaining buildings and to join New Karu Local Government as the fourth defendant.
The motion was supported by a 17 paragraphs affidavit. In opposition to the application, the respondents filed a 15 paragraphs counter/affidavit.
After listening to the arguments of counsel of both parties, the learned trial Judge refused the application. In his ruling the learned trial Judge said:
“This court therefore does not see the need to make this order. Application has suffered delay, the acts has already been completed, proper parties have not been joined and the balance of convenience is not at the instance of the applicant since he is not in legal possession. They have allocated another land which he has accepted and has not complained.”
Aggrieved with this decision the appellant appealed to this court.
The notice of appeal contains two grounds of appeal. Shorn of their particulars, the grounds of appeal read:
“1. The learned trial Judge erred in law when he held in his ruling on an interlocutory application that the appellant is not in legal possession of the plot of land which is the subject matter of the suit before the trial court when the substantive matter is yet to be heard.
2. The learned trial Judge erred in law when he held in the same ruling that “they have allocated another land which he has accepted and has not complained” even when no evidence has been led at all in the substantive suit to determine whether or not the plaintiff/appellant has been allocated an alternative plot of land as is being claimed by the defendants/respondents”
In compliance with the rules of this court, the appellant filed his brief of argument. The respondents failed or neglected to file the respondents’ brief. By the leave of this court, the appeal was heard on the appellant’s brief alone. In the appellant’s brief only one issue was formulated for the determination of this appeal viz:
“Whether or not the learned trial Judge is right, putting into consideration the claims of the plaintiff before the trial court in making pronouncement in his ruling of 17/2/2005 to the effect that the plaintiff “is not in legal possession of the land” which is the subject matter of the suit, and that the plaintiff “has been allotted another land which he has accepted and not complained” in an interlocutory application for injunction when no evidence has been led at all in the substantive suit.”
At the hearing of the appeal learned counsel for the appellant adopted the appellant’s brief and urged the court to allow the appeal.
It was submitted in the appellant’s brief that the power of a court to hear and determine interlocutory applications in a suit does not extend to determining the claims of the parties in the substantive suit. It was also submitted that the purport of interlocutory injunction is to maintain the status quo between the parties and preserve the res until the final determination of the substantive suit. The following authorities were cited in support of these submission F.S.B. International Bank Ltd. v. Imano Nigeria Ltd. (2000) 7 SCNJ 65; (2000) 11 NWLR (Pt. 679) 620; Kotoye v. C.B.N. (1989) ANLR 76; (1989) 1 NWLR (Pt. 98) 419. It was also submitted that the trial Judge failed to properly evaluate the legal submissions of counsel and the affidavit evidence before him.
Learned counsel for the respondents, quite rightly in my view, said they were not opposing the appeal.
The appellant’s claim is for a declaration that he “is not occupying illegally and/or unlawfully” the said piece of land. The teamed trial Judge in his ruling held that the appellant “is not in legal possession”. This clearly shows that the trial Judge, has in an interlocutory application, resolved the substantive issue before him.
It is trite that a Judge should not delve into issues meant for the substantive suit when considering interlocutory applications. A judge must strictly confine himself to the point which he is called upon to decide. See Obeya Memorial Hospital v. A.-G., Federation (1987) 3 NWLR (Pt. 60) 325; Saraki v. Kotoye (1990) 4 NWLR (Pt. 143) 144 and Shanu v. Afribank (Nig.) Plc. (2002) 17 NWLR (Pt. 795) 185.
It is for the above reasons and the fuller reasons contained in the judgment of my learned brother Ndukwe-Anyawu, JCA. with which I am in full agreement, that I allow the appeal. I abide by all the consequential orders made in the leading judgment.
NZEAKO, J.C.A.: I have had the privilege of reading in draft the leading judgment of my brother Ndukwe-Anyanwu, JCA, with which I agree.
Appeal allowed.
Appearances
Nuhu Usman, Esq. For Appellant
AND
J. E. Arigu, Senior State Counsel, Nasarawa State Ministry of Justice For Respondent
