KAYODE ADELEYE & ORS V. THE EXECUTIVE GOVERNOR OF OGUN STATE
(2012)LCN/5554(CA)
In The Court of Appeal of Nigeria
On Monday, the 9th day of July, 2012
CA/I/42/2012
RATIO
WORDS AND PHRASES: MEANING OF AN INJUNCTION
An injunction is a judicial remedy, of an equitable nature by which a person is ordered to refrain from doing or to do a particular act or thing. PER ADZIRA GANA MSHELIA, J.C.A
WORDS AND PHRASES: MEANING OF A MANDATORY OR POSITIVE INJUNCTION
Mandatory injunction or positive injunction is an order of a court requiring a party to do a specific act or action. Mandatory injunction or restorative injunction is granted in most cases to undo what has already been done. PER ADZIRA GANA MSHELIA, J.C.A
INJUNCTION: PRINCIPLES GUIDING THE GRANT OF MANDATORY INJUNCTION
The guiding principles applicable in granting mandatory injunction is well settled as shown in a number of decided cases. In Halsbury’s Laws of England 4th Edition Volume 24 paragraph 948 the test to be applied in the grant of interlocutory mandatory injunction is stated as:-
“A mandatory injunction can be granted on interlocutory application as well as at the hearing, but in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steal a match on the plaintiff such as where on receipt of notice that an injunction is about to applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application.” PER ADZIRA GANA MSHELIA, J.C.A
INJUNCTION: DIFFERENCE BETWEEN A MANDATORY AND OTHER INTERLOCUTORY INJUNCTIONS
In Attorney-General Anambra State v. Okafor (1992) 2 NWLR (pt.224) 396 Nnaemeka-Agu, JSC stated the difference between a mandatory injunction and other interlocutory injunctions. At pages 427- 428 he said:-
“Although a mandatory injunction is sometimes classified as an interlocutory order of injunction, it is different type of injunction, with its own features, and requiring a consideration of its own distinct principles. It is worthy in this respect that it is usually targeted upon a completed act and the order may be made, for an example, to order a building which has been erected to be pulled down if it is established that the defendant erected it stealthily in order to steal a match on the plaintiff on having noticed that an injunction has to be taken out against him… See Daniel v. Ferguson (1891) 2 ch 77 also Vsn Joel v. Hornsey (1895) 2 ch 774 CA.
An order of interlocutory injunction is, on the other hand negative and restrictive in nature and, so is made to preserve the res pending litigation or to prevent a breach. Also there is difference in the quality of evidence necessary to entitle an applicant to relief in the two types of injunctions. PER ADZIRA GANA MSHELIA, J.C.A
JUSTICES:
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
1. KAYODE ADELEYE (CHAIRMAN)
2. YESIDE KUFORIJI
3. CHIEF OLUWOLE OLALEYE
4. ADEYEMI LAWAL-SOLARIN
5. OYENIYI ADEKOLA
6. CHIEF OLATUNJI FALOLA
7. DR. ADEMOLA OGUNLEYE
8. BISHOP (DR.) PAUL ONANUGA – Appellant(s)
AND
THE EXECUTIVE GOVERNOR OF OGUN STATE – Respondent(s)
ADZIRA GANA MSHELIA, J.C.A (Delivering the Leading Judgment): This is a motion on Notice brought pursuant to Order 7 Rule 1 of the Court of Appeal Rules, 2011 and under the inherent jurisdiction of this Honourable Court. By this application Appellants/Applicants are praying for the following orders:-
1. An Order invoking the disciplinary power of this Honourable court by making a mandatory order, setting aside all the steps taken by the Respondent during the pendency of the application for interlocutory injunction dated 23rd December, 2012 (sic) at the lower court, namely:
(a) The act of constituting Ogun State Independent Electoral Commission and appointing members into it.
(b) The act of inaugurating the members of the commission.
2. Injunction restraining the Respondent, privies, servants and any other person or persons however so called from appointing or constituting the Ogun State Independent Electoral Commission during the pendency of this appeal.
3. Injunction restraining the Respondent from allowing the newly constituted Ogun State Independent Electoral Commission from organizing or conducting election into the Local Government Council in Ogun State.
4. Accelerating the hearing of the appeal by abridging the time within which the Respondent may file its Brief of Argument.
And for such further order or other Orders as the Honourable Court may deem fit to make in the circumstances.
The Grounds for the application are also set out as follows:-
1. The Appellants/Applicants filed an application before the lower court for an injunction pending the determination of appeal dated 23rd day of December, 2011.
2. The application was served on the Respondent on the 23rd day of December, 2011.
3. The Respondent inspite of the service of the said application on it purportedly constituted Ogun State Independent Electoral Commission and appointed members into the said commission.
4. The Application was yet to be determined at the time the Commission was constituted and appointment of members made thereof.
5. The action of the Respondent constitutes self help and affront on the authority of the court.
TAKE FURTHER NOTICE that the Appellants/Applicants shall at the hearing of the application rely on the Record of Proceedings before the Honourable Court.
The application is supported by a 33 paragraph affidavit dated 25.5.2012 and filed 26.5.2012 deposed to by Abass Nurudeen a legal practitioner in the law firm of Afolabi Fashanu & Co. counsel to the Appellants/Applicants herein. Also attached are Exhibits ‘A’, ‘B1’, ‘B2’, ‘C’, ‘D’, ‘E’ and ‘F’ – ‘F3’. A further affidavit containing 13 paragraphs was also filed on 22.5.12 with a Ruling attached as H.B.
The motion was moved on 28.5.12 and 13.5.12 respectively. At the hearing Fashanu (SAN) counsel to the applicants stated the brief background facts as contained in the affidavit in support and formulated three issues for determination therefrom. The issues are:
(1) Whether the Respondent had knowledge of the pending interlocutory injunction before they took all the steps they took.
(2) Whether the Respondent acted correctly in taking those steps despite the pendency of the application.
(3) What is the legal consequence of that action?
On the first issue the learned senior counsel submitted that the respondent had knowledge of the pending interlocutory injunction. The application attached as Exhibit B1 and B2 were served on the respondent on 23.12.11 and 30.01.12 respectively. The senior counsel referred to exhibit D the letter written to Hon. Attorney General and submitted that inspite the letter the respondent still forwarded names of nominees to the House of Assembly. That the House of Assembly approved the names on 31.01.12. The letter written to Ogun State House of Assembly conveying names of his nominees is attached as Exhibit HAG4. Which the proceedings of the House and approvals are marked exhibits HAG5 and HAG6 respectively. The learned silk maintained that respondent had knowledge of the pendency of the application.
Issues 2 and 3 were argued together. The learned senior counsel submitted that it is improper for any party to take preemptive step while an application is pending to restrain an intended act. Reliance was placed on the locus classicus case of Daniel v. Ferguson (1891) 2 Ch. 27 at 30.
This authority was cited in Ezega vs. F.A.T.B Ltd (1992) 1 NWLR (Pt.220) 699 at 724 & 736.See also F.A.T.B Ltd vs. Ezegu (1992) 9 NWLR (Pt 264) 132 and Gambari vs. Bukola (2003) FWLR (Pt.158) 1198 at 1213, Ojukwu v. Governor of Lagos State (1985) 2 NWLR (Pt 10) 806 at 823-824 and The Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt 18), 621 at 637. Counsel urged the Court to hold that the action of the respondent amounts to executive lawlessness and set aside all the steps they took during the pendency of the application. Counsel also urged the Court to restrain the respondent from allowing the illegal commission constituted to conduct the election.
In response the Director civil litigation, Mrs. Sobayo, opposed the application on behalf of the respondent and relied on a 37 paragraph counter-affidavit filed on 21.5.12. Seven exhibits are attached to the counter-affidavit. Learned counsel submitted that the application of the applicant is incompetent by reason of the fact that the application is in contravention of Order 7 Rule 4 of the Court of Appeal Rules, 2011. The application is asking the court to invoke its disciplinary powers against the respondent. That this prayer is in the nature of contempt of court. The application is also asking the court for injunction to restrain the respondent pending appeal. Counsel contended that applicants did not offer any reason for coming to this court. Reference was made to Order 7 Rule 4 of the Court of Appeal Rules, 2011. That applicants did not show exceptional circumstances exist which made it impracticable to apply to the court below. Reliance was placed on Kalu vs. Odili (1992) 5 NWLR (Pt.240) (1989) 5 NWLR (pt. 123) 590 at 595. Counsel argued that respondent did not commit any contempt that would warrant this court to invoke its power against him. That assuming the respondent did commit contempt, it was not committed before this court. The fact that appeal was entered on 29.2.12 would not deprive the lower court of its disciplinary powers because the court must protect its dignity. That jurisdiction is different from punishing contempt of court. See Ebhodaghe vs Okoye (2004) 18 NWLR (pt. 905) 482 at 489 – 495 & 496. Counsel submitted that applicants filed application before the lower court as far back as 23.12.11 but they withdrew same on 17.4.12 without giving any reason. They have no application before the lower court and they gave no reason why they are before this court. That having failed to comply with Order 7 Rule 4 of the rules of court, this application is incompetent and should be struck out. Alternatively, in the event the court did not agree with the above submission, Counsel referred to the Judgment delivered on 23.12.11 by Olopade J. dismissing the claim of the applicants. That, all the originating processes in this matter were served on the office of respondent. A further affidavit was filed and exhibit HAG is attached to same. Exhibit HAG showed that office of respondent was served directly. Learned counsel also referred to the letter written by the learned silk marked Exhibit ‘HAG3’.
That Exhibit HAG3 was not meant for service on the respondent, but the learned silk served it as an information. That Hon. Attorney General was never made a party to this action at the lower court. Learned counsel also referred to Exhibit HAGT to show when the office of the respondent was served with Notice of Appeal and Motion for injunction. That respondent was served on 30.01.12. Reference was also made to Exhibit HAG5 a letter written by respondent and 5,198 of 1999 Constitution.
Learned counsel further submitted that the Governor wrote letter to House of Assembly on 24.1.12 seeking for confirmation of the members of the commission before he was served with the processes on 30.1.12. That on 31.1.12 they sat and confirmed the appointment but the House is not a party to this suit. On the issue of injunction pending appeal counsel submitted that applicants must show cogent and substantial reason why this court must grant this application since judgment was given in favour of respondent. Learned counsel submitted that in granting or refusing the application, the court should consider the balance of competing rights of parties and interest of justice. Counsel urged the court to look at the interest of the 8 applicants as compared to entire citizens of Ogun State who would be deprived to make choices. See Oluwadare v. Unilorin (2009) 12 NWLR (Pt.1169) 1 at 22 and CCB Nig Plc v. Ozubu (1998) 3 NWLR (pt. 547) 290 at 311. Finally counsel urged the court to refuse the application and dismiss it with substantial costs. That applicants can be adequately compensated if the application is wrongly refused but the whole state cannot be compensated.
While replying on point of law, the learned silk submitted that the issue of whether this court has jurisdiction to entertain this application was raised in the case of Ezegu’s case (Pt.220) 715 paras 2. Counsel urged the court to discountenance the argument of respondent’s counsel on the issue of contempt as they are not dealing with contempt. That the application was withdrawn when the appeal was entered. It is elementary principle that once an appeal is entered the lower court is ceased of jurisdiction to entertain any application. Reliance was placed on Izemo v. AG Bendel State (1986) NSCC (pt.2) Vol. 17 page 1154 at 1170 – 1171 and Amao v. Alabi (2003) 12 NWLR (pt.835) 537 at 555.That the two courts cannot exercise jurisdiction at the same time. On issue of balance of convenience he submitted that sentiment has no place in law.
See Governor of Lagos State v. Ojukwu (supra) (pt.18) 637.
Counsel urged the court to grant the application.
In order to bring out the picture clearer, it may be better to reproduce some of the germane paragraphs of the affidavits in support as well as the counter-affidavit. Paragraphs 4-32 of the main affidavit read as follows:
“4. That, by an action filed on the 28th of June, 2011, the Appellants/Applicant as claimant sought among others for an Order declaring the purported dissolution of Ogun State Independent Electoral Commission by the Respondent as wrongful, illegal, null and void and of no effect.
5. That the Court in a Judgment delivered on 23rd December, 2011, dismissed the action, Photocopy of the Certified True Copy of the Judgment is attached as Exhibit “A”.
6. That the Appellants/Applicants being dissatisfied with the said Judgment filed a Notice of Appeal and application for injunction which were served on the same day on the Respondent through the Attorney General who has at all material times been representing the Respondent, Photocopy of the Certified True Copy of the said Notice of Appeal and Application for injunction, are hereby attached and marked Exhibit “B1” and “B2” respectively.
7. That the processes were received by one Stephens G.O. of Ministry of Justice, Ogun State.
8. That our Chambers also wrote a letter to the Attorney General informing him of the steps taken by Appellants/Applicants as shown in paragraph 3 above, a copy of the said letter is hereby attached and marked Exhibit “C”.
9. That on the 28th January, 2012, the 1st Appellant/Applicant at about 2pm came to our chambers located at Ita-Eko, Abeokuta at about 2pm where we had deliberation over this matter.
10. That at the same venue and time, he informed me and I verily believe him that the Respondent had appointed members into the commission and was preparing to forward the names to the House of Assembly for approval.
11. That we decided during the deliberation that a letter be written to the Honourable Attorney General of the State.
12. That accordingly, a letter was written to the Honourable Attorney General by the leading Counsel and signed by Afolabi Fashanu SAN, copy of the said letter is hereby attached and marked Exhibit “D”.
13. That on 23rd February, the 1st Appellant/Applicant also came to our Chambers during the office hours where he informed me during the deliberation of the case and I verily believed him that the Respondent had constituted the Commission and appointed members who were all sworn in on the same date.
14. That the Chairman and Members appointed into the Commission were four in number, namely:
(a) Alhaja Risikat Ogunfemi (Chairman
(b) Alhaji Korede Lawal
(C) Alhaji Bisiriyu Adekambi
(d) Mr. Mutiu Agboke.
15. That the event was thereafter published in the Daily Sun (a national newspaper) on the 23rd of February, 2012. A Certified True Copy of the said Newspaper is hereby attached and marked Exhibit “E”.
16. That the Respondent also caused photographs of the event to be snapped, copies of the said photographs showing the whole event are hereby attached and marked Exhibit “F” – “F3”.
17. That the Respondent was the man dressed in Traditional attire administering oath on members in Exhibit F.
18. That I know the Chairman of the Commission, Alhaja Risikat Ogunfemi whom we worship together at the Secretariat Mosque, Oke -Ilewo, Abeokuta.
19. That Athaja Ogunfemi was the woman dressed in Traditional outfit in Exhibit F1.
20. That I also know the gentleman in suit in Exhibit F as Mr. Mutiu Agboke, a former Counsel in our Chambers.
21. That all the steps taken which includes the Constitution of the Commission, appointment of members thereto and the inauguration of the Commission were done during the pendency of the application of interlocutory injunction by the lower court.
22. That the application for the interlocutory injunction still came up for hearing on the 29th February, 2012.
23. That the said application was withdrawn on 17th day of April, 2012 because the Appeal has been entered at the Court of Appeal.
24. That I know the Appellants enjoy a 5-year tenure by virtue of Section 199(1) of the 1999 Constitution of Federal Republic of Nigeria (as amended) as well as Section 8 of the Ogun State Independent Electoral Commission Law under which the Appellant were appointed.
25. That the 2nd Appellant/Applicant’s tenure expires on 5th October, 2015 whilst those of other appellants/applicants expires on Septemeber,2012
26. That on 20th April, 2012, the Respondent held a press Conference in company of new members of Ogun State Independent Electoral Commission where they announced timetable for the conduct of the Local Government Election in Ogun State.
27. That 21st July, 2012 has been fixed for the Conduct of the said Local Government Election.
28, That Appellant’s Brief of Argument has been filed and served.
29. That accelerating the hearing of the Appeal would be necessary in the circumstance.
30. That I know as a fact that if this application is refused, the substantive appeal will be rendered nugatory as the new members would have taken over the duties of the Appellants/Applicants and exhausted the unexpired term of their appointment,
31. That damages will not adequately compensate the Appellants/Applicants in this case.
32. That the Appellants/Applicants undertake to indemnify the Respondent if this application is granted but later turned out that it ought not to have been granted.”
Then paragraphs 4 – 36 of the respondent’s counter-affidavit read as follows:-
“4. That the present application for an order invoking the disciplinary powers of this Honourable Court was filed in this Court without a similar application having been first filed at the lower court.
5. That I have examined the 33 paragraph affidavit in support of this said application and there is nothing in the said affidavit to show why a similar application was not first filed at the lower court.
6. The application seeking to invoke the disciplinary powers of this court seeks to reverse the purported steps taken in purported contempt not of this Honourable Court but of the High Court.
7. That there was no application pending in this Honourable Court either for interlocutory injunction or for any other relief at the time the acts purportedly complained of by the Appellants/Applicants were taken.
8. That the Appellants/Applicants filed an action at the High Court through an Originating Summons which was undated and unsigned.
9. That the Appellants/Applicants prayer amongst others was for an order declaring the dissolution of the Ogun State Independent Electoral Commission by the Respondent as wrongful, illegal, unconstitutional, null and void.
10. That the Originating processes and the Motion on Notice for Interlocutory Injunction dated 28th June, 2011 were served directly on the Office of the Respondent (The Governor of Ogun State). A Certified True Copy of the Affidavit of Service is herewith attached and marked as Exhibit HAG. 1.
11. That the Further Affidavit deposed to by the 2nd Appellant/Applicant on 3rd November, 2011 was served directly on the office of the Respondent (The Governor of Ogun State) on 14th November, 2011. A copy of the Further Affidavit is herewith attached and marked Exhibit HAG. 2.
12. That it is true that the judgment was delivered in the case on 23rd December, 2011 wherein the Appellants/Applicants’ case was dismissed.
13. That on 23rd December, 2011, the Appellants/Applicants solicitors wrote to the Attorney General of Ogun State notifying him that a Notice of Appeal and application for injunction have been served on the Respondent (The Governor of Ogun State). A copy of the said letter is herewith attached and marked Exhibit HAG.3.
14. With further reference to paragraph 12 above, it is not true that the Respondent was served with the application through the office of the Attorney General of Ogun State.
15. That the copies of the Motion on Notice and Notice of Appeal purportedly served on the Respondent were only attached to Exhibit HAG.3 written to the Attorney General for ease of reference.
16. That the process acknowledged by Mrs, G.O. Stephens in the office of Attorney General even by the Appellants/Applicants solicitors letter were not for service on the Respondent since according to them, the Respondent had already been served directly with the processes.
17. That by a letter dated 24th January, 2012, with No.C.119/T/174 the Respondent wrote to the Honourable Speaker, Ogun State House of Assembly requesting for the reconstitution of the Statutory commissions including Ogun state Independent Electoral Commission. A Certified True Copy of the letter is herewith attached and marked Exhibit HAG.4.
18. With reference to the paragraph 17 above, the Ogun State House of Assembly had its sitting on 31st January 2012 wherein the appointment of the nominees of the Ogun State Independent Electoral Commission were screened and confirmed. The confirmation was communicated to his Excellency vide letter No,CHA.61/Vol.II/80 dated 1st February, 2012. A Certified True Copy of the votes and proceedings of the House for 31st January 2012 and the letter of the House dated 1st February 2012 are herewith attached and marked Exhibit HAG.5 and HAG.6 respectively.
19. That after Judgment was delivered on the 23rd December, 2011 in the High Court of Ogun State, the Respondent set in motion the process of appointing the Chairman and members of the Ogun State Independent Electoral Commission after which their names were forwarded to the House of Assembly for approval.
20. The Respondent informs me and I verily believe him that he was only served with the Notice of Appeal dated 23/12/11 and Application for injunction on 30th January, 2012. A copy of the hearing notice and other Court processes served on the Respondent is herewith attached and marked Exhibit HAG.7.
21. That by virtue of my profession, I know for a fact that the Respondent and the Ogun State House of Assembly are constitutionally empowered to appoint and approve the appointment of the Chairman and members of the Ogun State Independent Electoral Commission.
22. That it is true that the Chairman and members appointed into the commission were four in number as deposed to by the Appellants/Applicants in paragraph 14 of their affidavit in support.
23. It is not true that the Respondent (The Governor of Ogun State) caused photographs attached as exhibits “F-F3″ to be taken during the swearing in ceremony.
24. It is not true that all the steps for the appointment of the Chairman and members were taken during the pendency of the Appellants/Applicants application for interlocutory injunction.
25. The Respondent states further to paragraph 24 that the process of appointing the Chairman and members of the Ogun State Independent Electoral Commission had been concluded before the Respondent was served with the application for interlocutory injunction on 30th January, 2012.
26. That as at the time the letter marked Exhibit D in Appellants/Applicant affidavit in support was issued to the Attorney General of Ogun State on 30th January, 2012, the steps to be taken by the Respondent for the appointment of the Chairman and members of Ogun State Independent Electoral Commission had already been completed.
27. It is true that the Appellants/Applicants’ application came up on the 29th February, 2012 at the High Court No, 4, Abeokuta and was adjourned till 7th May, 2012 for hearing but before the application could be argued, the Appellants/Applicants withdrew same.
28. That the Appellants/Applicants do not enjoy any tenure whatsoever either as Chairman or members of the Ogun State Independent Electoral Commission as their appointments were never confirmed by the Ogun State House of Assembly as required by the constitution of the Federal Republic of Nigeria.
29. It is not true that the tenure of the Appellants/Applicants expires in 2015 as their appointments were never confirmed by the Ogun State House of Assembly.
30. That the Ogun State Independent Electoral Commission is constitutionally empowered to conduct Local Government Elections.
31. It is not true that if this application is refused, the new members of the commission would have taken over the duties or responsibilities of the Appellants/Applicants as the appointments of the latter were never confirmed by the House of Assembly, thus they were never appointed as members of the commission.
32. That the Respondent has not been served with the second Notice of Appeal filed by the Appellants/Applicants referred to in paragraph 1.03 of Appellants’ Brief of Argument.
33. That in any event, damages will adequately compensate the Appellants/Applicants herein.
34. That without the appointments and constitution of the Ogun State Independent Electoral Commission, the State would not be able to conduct election into the Local Governments.
35. That the Appellants/Applicants cannot adequately compensate the Respondent and People of Ogun State if the people are not allowed to hold elections into the 20 Local Government.
36. That it is in the interest of Justice that this application for interlocutory injunction be dismissed as it is frivolous and amounts to an abuse of Court Process”.
In response to the counter-affidavit applicants filed a 12 paragraph further affidavit and attached the ruling of the lower court as Exhibit H.B.
I find it necessary to first resolve the issue of competency of the application raised by respondent’s counsel in the course of her oral submission. Now the question is whether the application is brought in
contravention of order 7 Rule 4 of the Court of Appeal Rules, 2011. Order 7 Rule 4 provides:
“4. Whenever under these Rules an application may be made either to the court below or to the court it shall not be made in the first instance to the court except where there are special circumstances, which make it impossible or impracticable to apply to the court below.”
The sub-rule is in two Limbs. Under the first limb, the application must, in the first instance, be made to the court below, which is the High court.
This is clear by the mandatory nature of the provision engendered by the word “shall”. By the second limb an applicant can only come to this court where special circumstances exist which makes it impossible or impracticable to apply to the court below. A special circumstance is a particular, peculiar and distinctive circumstance. The special circumstance is tied up with the additional requirement of impossibility or impracticability. If from the facts of the case as averred to in an affidavit, the court comes to the conclusion that it is extremely difficult by the employment of all possible human strength, knowledge and diligence to file the application in the court below; the sub-rule can be invoked in favour of the applicant. In the instant case, the appeal was entered on 29.2.12.
The complaint arose on 23.2.12. While the application, under consideration was filed on 26.3.12. It is evident that applicants had six days within which to file the application before the lower Court but they chose to come before this court directly, I have examined the affidavit in support but same did not disclose exceptional circumstances that could have made it impracticable for them to file the application first before the court below.
Be that as it may, the application at hand deals with mandatory injunction. By the provisions of Order 4 Rule 6 of the court of Appeal Rules, 2011, this Court is empowered to entertain any application for injunction or any other application seeking relief for the protection of property or person pending the determination of an appeal inspite of the provisions of Order 7 Rule 4. For clarity Order 4 Rule 6 reads:
“6. The court shall have power to make orders by ways of injunctions or the appointment of a Receiver or Manager, and such other necessary orders for the protection of property or person, pending the determination of appeal to it even though no application for such an order was made in the court below.”
Consequently the application though may not have been made in the first instance in the court below is still competent and not a violation of Order 7 Rule 4 of the Rules. In U.B.A. Plc v. Mode Nig. Ltd (2000) 1 NWLR (pt. 640) 270 at 279 paras C-D, Ubaezonu J.C.A. had this to say:-
“Where the prayer in the motion is for an injunction an applicant need not apply in the court below, before applying to this court”.
The case of Kalu v. Odili (supra) and Bashorun v. Chief of Army & ors (supra) cited by respondents counsel relates to application for stay of execution and leave to appeal respectively, which are covered by the general provision of Order 7 Rule 4 of the Rules and so inapplicable to the case at hand.
It is to be noted that while Order 7 Rule 4 deals with applications generally, Order 4 Rule 6 deals with specific application for injunction or the appointment of receiver or manager and such necessary Orders for the protection of property or person pending the determination of an appeal.
In view of the saving provisions of Order 4 Rule 6 of the court of Appeal Rules, 2011 reproduced (supra) the argument of Respondent’s counsel cannot be sustained. Consequently, I hold that the application is properly before us and competent.
I now consider the application on merit.
The background facts upon which this application has emerged could be summarized briefly. By an originating summons filed on 28-6-11 the Appellants/Applicants (hereafter referred to as Applicants) as claimants sought among others for an order declaring the purported dissolution of Ogun State Independent Electoral Commission by the respondent as wrongful, illegal null and void and of no effect. After conclusion of hearing the learned trial judge in a considered judgment delivered on 23.12.11 dismissed the action. Not satisfied with the said judgment Applicants filed a notice of appeal to this court and application for injunction which were alleged to have been served on the same day on the respondent through the Attorney General. Despite the service of the notice of appeal and motion seeking for injunction on 23-2-12 the respondent constituted the commission and appointed members who were sworn in on the same date.
The application for injunction was only withdrawn on 17-4-12 because the appeal has been entered before this court on 29-2-12.
The grouse of the applicants is that respondent took steps by constituting and appointing members of the Ogun State Independent Electoral Commission despite their pending application for interlocutory injunction before the lower court. The contention of the learned silk is that the action constitutes self-help. It is improper for any party to take pre emptive step while an application is pending to restrain an intended act, counsel argued.
An injunction is a judicial remedy, of an equitable nature by which a person is ordered to refrain from doing or to do a particular act or thing.
Mandatory injunction or positive injunction is an order of a court requiring a party to do a specific act or action. Mandatory injunction or restorative injunction is granted in most cases to undo what has already been done.
The guiding principles applicable in granting mandatory injunction is well settled as shown in a number of decided cases. In Halsbury’s Laws of England 4th Edition Volume 24 paragraph 948 the test to be applied in the grant of interlocutory mandatory injunction is stated as:-
“A mandatory injunction can be granted on interlocutory application as well as at the hearing, but in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steal a match on the plaintiff such as where on receipt of notice that an injunction is about to applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application.”
In Attorney-General Anambra State v. Okafor (1992) 2 NWLR (pt.224) 396 Nnaemeka-Agu, JSC stated the difference between a mandatory injunction and other interlocutory injunctions. At pages 427- 428 he said:-
“Although a mandatory injunction is sometimes classified as an interlocutory order of injunction, it is different type of injunction, with its own features, and requiring a consideration of its own distinct principles. It is worthy in this respect that it is usually targeted upon a completed act and the order may be made, for an example, to order a building which has been erected to be pulled down if it is established that the defendant erected it stealthily in order to steal a match on the plaintiff on having noticed that an injunction has to be taken out against him… See Daniel v. Ferguson (1891) 2 ch 77 also Vsn Joel v. Hornsey (1895) 2 ch 774 CA.
An order of interlocutory injunction is, on the other hand negative and restrictive in nature and, so is made to preserve the res pending litigation or to prevent a breach. Also there is difference in the quality of evidence necessary to entitle an applicant to relief in the two types of injunctions.
In an application for interlocutory injunction… See Obeya Memorial Hospital v. Attorney General Federation (1987) 3 NWLR (Pt. 60) 3725; Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt.98) 419 but in an application for mandatory injunction, the courts have usually shown more reluctance to make the order: See Blakemore v. The Blamorganshine Navigation (1832) 1 my and VR. 155. Before it is granted; the courts require a higher degree of assurance that at the trial it would still appear that the order of mandatory injunction was rightly made. See Shepherd Homes Ltd. Vs. Sandham (No.1) 1971 Ch. 340.
Furthermore the court must consider the fairness of the order bearing in mind in fact that such an order is usually irreversible. A house pulled down cannot be easily rebuilt for example.”
In a further related case of C.B.N. v. U.T.B. (Nig) (Ltd) (1996) 4 NWLR (Pt 445) 694 this court stated thus:-
“Some of the circumstances in which mandatory injunction will be granted are where the injury done to the plaintiff cannot be estimated and sufficiently compensated for by damages, or is so serious and material that the restoration of things to their former condition is the only method whereby justice can be adequately done, or where the injury complained of is in breach of an express agreement the court will exercise its jurisdiction and grant a mandatory injunction. See Halsburyls Laws of England 4th Edition Volume 24 Paragraph 948.
A mandatory injunction will also be granted where the act done is a simple and summary one which can be easily remedied or if the defendant attempts to steal a match on the Plaintiff.”
From the above authorities it is clear that courts are reluctant to grant mandatory injunction unless an applicant can prove special circumstances to warrant its grant. The courts also require a higher degree of assurance that at the trial it would appear that the mandatory injunction was rightly granted.
It is to be noted that the mandatory injunction is an equitable remedy and the grant of same is discretionary. Being discretionary all that is required of a court is that the discretionary power should be exercised judicially and judiciously. The overriding principle that should guide the court is the interest of justice. If it is found to be in the interest of Justice, it should be granted. It should be refused if it does not serve the interest of Justice.
An interlocutory injunction on the other hand is an injunction that is directed to ensure that a particular act or acts do not take place or continue to take place pending the final determination by the court of the rights of the parties. The purpose therefore is to protect a plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the case were determined in his favour at the trial.
Notwithstanding the right of the plaintiff to be so protected, it has to be weighed against the corresponding need of the defendant to be also protected against injury resulting from him having been prevented from exercising his own legal right if the uncertainty were resolved in his favour at the trial. See Obeya Memorial Specialist Hospital & Anor v. Attorney General of the Federation & Anr (1987) 3 NWLR (part 60) 325; Ojukwa v. Government of Lagos State (1986) 3 NWLR (Pt. 26) 39.
In Kotoye vs. CBN & 7 Ors (1989) 1 NWLR (Pt 98) 419, the Apex court laid down the general principles guiding the grant or refusal of an application for interlocutory injunction.
These guiding principles include the following:
“1. The Applicant must show that there is a serious question to be tried, ie, that the Applicant has a real probability, not a probability of success at the trial, notwithstanding the defendant’s technical defence, if any.
2. The Applicant must show that the balance of convenience is on his side, that is, that more justice will result in granting the application than in refusing it.
3. The Applicant must show that damages cannot be an adequate compensation for his damage or injury, if he succeeds at the end of the day.
4. The Applicant must show that his conduct is not reprehensible for example that he is not guilty of any delay.
5. No order for an interlocutory injunction should be made on notice unless the Applicant gives a satisfactory undertaking as to damages save in recognized exception.”
I wish to add that the purpose of an interlocutory injunction is, apart from protecting the right of the Applicant, it is also meant to preserve the res from being wasted. Both the court from which an appeal lies as well as the court to which an appeal lies have a duty to preserve the res for the purpose of ensuring that the appeal, If successful is not rendered nugatory. See Governor Oyo State v. Akinyemi (2003) 1 NWLR (Pt.800) 1; Onyeson v. Nze Christopher Nnebedum & ors (1992) 3 NWLR (pt.229) 315.
In Obioha v. Military Administrator of Imo State (1998) 10 NWLR (pt.569) 205 at 222,  this court per Katsina-Alu, JCA (as he then was) said:-
“The purpose of an interlocutory injunction is to maintain the status quo and thereby preserve the res the subject matter of litigation from being wasted, damaged, frittered away, with the result that if the appeal succeeds the result would be nugatory in that the successful Appellant would only reap an empty Judgment.”
Although an applicant is not at this stage required to make out a prima facie case, the court has to be satisfied that the Applicant’s case is not frivolous or vexatious and that there is a serious issue or question to be tried. See Falomo v. Bamigbe (1998) 7 NWLR (pt.559) 679.
Furthermore, interlocutory injunction is an equitable remedy which is at the discretion of the court to grant, The Applicant therefore has an unfettered duty to satisfy the court that in the special circumstance of his case, he is entitled on the facts presented by him and the relief. See Ayorinde v. Attorney General of Oyo State (1996) 3 NWLR (pt.494) 20. In Ochido v. Oseni (1998) 13 NWLR (Pt.580) 103. It was held that an interlocutory injunction will be refused if it should appear to be unjust or highly unreasonable to grant having regard to the well known equitable considerations such as hardship or balance of convenience or such other matters.
Having restated the general principles relating to Mandatory and Interlocutory injunctions, the only issue for consideration is whether or not the said application satisfies the conditions warranting the exercise of discretion in favour of the Applicants, The determination of the said issue calls for the consideration of the material facts placed before the court.
As earlier pointed out the grant or refusal of the application is at the discretion of the court. This discretion, of course, has to be exercised judicially and judiciously.
The relevant paragraphs of the main affidavit in support and the counter-affidavit have been reproduced (supra) as such reference will be made to some paragraphs where necessary. As revealed by the affidavit evidence, the main complaint of the applicants is in respect of the steps taken by the Respondent during the pendency of the application for interlocutory injunction. Paragraph 21 in particular states:
“21. That all the steps taken which includes the constitution of the commission, appointment of members thereto and the inauguration of the commission were done during the pendency of the application of interlocutory injunction.”
The learned silk in his oral submission had contended that respondent was aware of the pending interlocutory injunction before the lower court.
Reference was made to exhibit C the letter written by his chambers notifying the Attorney-General of the steps taken by the Applicants.
Another letter marked exhibit ‘D’ was written to the Attorney-General as a reminder regarding the pending application for injunction fixed for 3rd February, 2012.
Respondent on the other hand denied the fact that steps were taken during the pendency of the interlocutory injunction before the lower court.
It was averred in paragraph 24 as follows:-
“24, It is not true that all the steps for the appointment of the chairman and members were taken during the pendency of the Appellants/Applicants application for interlocutory injunction”.
Respondent’s contention is that service of the processes were only effected on him on the 30th of January, 2012. See Exhibit HAG7. The explanation offered by the respondent is that the process of appointing the chairman and members of Ogun State Independent Electoral Commission commenced immediately after the Judgment was delivered on 23/12/11 which was in his favour and same was concluded before the 30th day of January, 2012. Reference was made to the letter written by the respondent to the House of Assembly marked Exhibit HAG4 dated 24/1/12. Reference was also made to Exhibit HAG6 dated 1st February, 2012. Exhibit HAG5 was also attached to show the deliberation of the House of Assembly on the issue of reconstitution of Ogun State Independent Electoral Commission dated 31st January, 2012. The applicants averred in paragraph 12 of the further affidavit that the Electoral Commission was constituted on 23rd February, 2012 whilst the application for injunction was still pending at the trial court. The Ruling of the lower court dated 29/2/12 attached to the further affidavit as Exhibit H.B clearly showed that the Notice of Appeal and Motion for interlocutory injunction were properly served on the Respondent only on 30th day of January, 2012.
Having stated the sequence of events, the question now is can it be said that respondent had knowledge of the pending interlocutory injunction yet he took steps and finally inaugurated the members of the Ogun INEC?
What is clear from the affidavit evidence is that respondent was properly served only on 30th day of January, 2012 with the Notice of Appeal and Motion for interlocutory injunction. The affidavit evidence also disclosed that part of the steps complained of were taken before the service of the processes which includes the injunction, while completion of the steps occurred after the service of processes on the respondent. From the affidavit evidence placed before the court, I do not share the view of the learned silk that the Respondent became aware of the pending interlocutory injunction filed before the lower court on 23/12/11. The respondent was properly served with the court processes on 30/01/12. It is only steps taken after being aware of the pending application for interlocutory injunction that would be considered. The applicants averred in paragraph 12 of the further affidavit that the respondent constituted the Ogun State Electoral Commission on 23rd February, 2012. That inauguration in my view ought not to have taken place having been served with the interlocutory injunction. The application for interlocutory injunction was only withdrawn on 17/4/12. This type of attitude was condemned by this Court in the case of Ojukwu vs. Gov of Lagos State (1985) 2 NWLR (pt 10) 806 at 823 paras B-C. The court pronounced as follows:-
“Once a matter is submitted for adjudication by a court in due exercise of the judicial powers vested on it by the above provision, the executive should not interfere until the judicial decision has been made, particularly where the executive interference will have the effect of pre-empting or anticipating the decision of the court.”
It is my view that the respondent resorted to self-help when he inaugurated members of the Ogun State INEC on 23.2.2012. If the proceedings were for contempt of Court we would not have hesitated in censoring the respondent. Be that as it may and because of the nature of the case we would consider the merit of the application.
The reliefs sought by the Applicants as per paragraph 1(a) and (b) is for restorative order, while reliefs 2 and 3 are for interlocutory injunction.
The circumstances under which both injunctions could be granted have been discussed earlier in this ruling. Before the restorative order could be granted applicants are required to prove special circumstances that would warrant the granting of the order. For the interlocutory injunction one has to consider the competing interests of parties and whether compensation would be sufficient in the circumstances of the case. Paragraphs 24, 25, 30, 31 and 32 of the affidavit in support as well as paragraphs 34, 35 and 36 of the counter-affidavit, all reproduced (supra) are relevant facts that would assist the court in determining whether to make the order or not having regard to the circumstances, The Applicants are asking the court to maintain status quo because if the new members are allowed to continue and in the event they succeed on appeal, their unexpired term will not be utilized though the appointment was for a 5 year term. Applicants also wants the election to be conducted into the 20 Local Government Councils of Ogun State to be stopped pending the determination of the appeal. The appointment of the Applicants as members of Ogun State Independent Electoral Commission which is the res is not perishable. If the Applicants succeed on appeal, an order may be made by the court reinstating them as members of Ogun State INEC so as to complete their unexpired term and award of damages may also be considered. To maintain status quo at this stage would definitely create a vacuum and violate section 7 (1) of the 1999 constitution (as amended).
In Badejo v. Federal Ministry of education (1996) 8 NWLR (pt.464) 15 at 41 Paras C-E the apex court per Kutigi J.S.C. (as he then was) observed as follows:-
“Chief Ajayi ought to have realized that for a court of law to have proceeded in the way he suggested would amount to putting the entire Federal Republic of Nigeria at the mercy of one aggrieved individual.
A case of total “brutalization” of the people’s fundamental right when compared with an infringement of the appellant’s fundamental right?
That to me would again amount to subversion. Again Chief Ajayi’s submission that the Court of Appeal on 8/10/90 should have cancelled the whole exercise of the interviews of 8/10/88 which affected the appellant and ordering fresh interviews is to say the least, preposterous, Admittedly, the interviews were held on 8/10/88, the 1989 Academic Year for secondary-I had ended, and the 1990 Academic Year for Secondary-2 (former Secondary-1) had already commenced when the Court of Appeal delivered its judgment on 8/1/90. In short, Chief Ajayi wanted the Court of Appeal to put the hands of the clock backwards by 2 Academic years! The end result? Chaos! I repeat chaos all over the country! No court should allow itself to be used as an instrument of subversion under the guise of enforcing a fundamental right.”
The above authority is relevant to the case at hand. To stop the election into the 20 Local Government Councils of Ogun State would certainly affect the interest of the entire people of Ogun State. In such circumstance the court has to consider the competing interest of the parties. Where does the balance of convenience lie? The dilemma usually faced by the courts as regards the grant of injunctions was stated in Films Rover International ltd & ors v. Cannon Film Sales Ltd (1986) 3 All E.R. 772 at 780 – 781 that:
“The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory is that there is by definition a risk that the court may make the “Wrong” decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been “wrong” in the sense I have described. The guidelines for the grant of both kinds of interlocutory injunction are derived from this principle.”
The above statement is apt, the overriding principle should be the interest of justice. As discussed earlier injunctions generally are equitable remedies, the grant of which are discretionary. Being discretionary the court is required to exercise it judicially and judiciously. Every case has to be considered according to its given set of facts and circumstances. Having considered the materials placed before the court it is my humble view that in exercising my discretion to grant or refuse the application I will take the course that carries the lower risk. See Films Rover International Ltd & Ors  v. Cannon Film Sales Ltd (supra) 780-781. In other words, I will refuse prayers 1(a) and (b) as well as 2 and 3 which deals with injunctions. As for prayer 4, I have observed that the respondent is already out of time to file the brief of argument as such making an order abridging the time would not save the situation, But an order accelerating the hearing of the appeal would be appropriate in the circumstances of this case considering the length of time appeal take to be disposed off in this court.
Finally, this application succeeds in part. It is ordered that prayers 1, 2 and 3 are hereby refused, It is further ordered that the Appeal No. CA/1/42/12Â Â be given accelerated hearing so that it would be heard and determined within the shortest possible time, Parties to bear their own costs.
MODUPE FASANMI, J.C.A.: I am in agreement with the Ruling prepared by my learned brother Mshelia J, C, A, which I had the privilege of reading in advance.
The application succeeds in part. I abide by the consequential orders contained therein inclusive of costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the well prepared Ruling of my learned brother, Mshelia, J.C.A., which I had the honour of reading in advance.
By way of emphasis, however, I wish to add these few words. Any piece of litigation pending in Court is jealously guarded by the Court. Once parties have turned their dispute to the Court for adjudication they are required to exercise some modicum of patience and self control to await the outcome of the overriding coercive powers of the Court under section 6 (1), (6) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, (1999 Constitution). In substance, that is what the rule of law, the sustenance of societal stability, is all about.
In the instant matter, the indecent haste in constituting a new electoral body by the respondent, a few days after becoming aware of the pending application for temporary injunction to restrain the respondent from constituting such body pending the determination of the dispute between the parties, undermined the integrity of the then pending court process. It was prima-facie contemptuous of the then pending court process for the respondent to have done such a preemptive act. I frown on it See by analogy Garba v. Federal Civil Service Commission (1988) 1 NWLR (pt.71) 449 at 469-470, where the celebrated jurist Eso, J.S.C., (as he was) held –
“what remains now is an examination of the act of the Respondents in dismissing the appellant from office during the pendency of the action. Such action, I think is contemptuous of the Judiciary, which has been seised with determination of civil rights under the constitution…
For the Judiciary, a powerful arm of government to operate under the rule of law, full confidence, and this must be unadulterated, must exist in that institution … In civil days both the Executive and the Legislative must show to the entire nation their demonstrable confidence in the Judiciary…….. once the path of law is chosen the mighty arm of government, the militia which is an embodiment of legislature and executive, must in humility bow to the rule of raw thus permitted to exist.”
For the respondent to have constituted the electoral body in question in disregard of the then pending motion for temporary injunction was good ground to cite the respondent for contempt of court. If the present motion was actually contempt proceedings in the strict sense of it, I would have had no hesitation in agreeing with the applicants that the respondent deserved censure by the court for the disrespect shown to the then pending motion for temporary injunction. Because no court worth its salt would fold its hands to see any process before it degraded or devalued by any of the parties to the litigation.
Be that as it may, the peculiar circumstance of the case which involves public good or interest captured in the skillful lead Ruling of my learned brother, Mshelia, J.C.A., calls for caution and reluctance in applying the procedure for mandatory injunction to the case, when the granting of the application may create a vacuum denying the electorate of Ogun State an electoral body to conduct Local Government election in Ogun State for the sustenance of a democratically run Local Government system within the spirit of section 7 (1) of the 1999 Constitution, as amended. The saving grace is that the posts in contention are not perishable. In the event the appellants/applicants win the substantive appeal they are entitled to be reinstated to the posts for them to exhaust the balance of their fixed term or tenure of office that was interrupted by the respondent: Such a course was taken in Garba (supra).
Since nature abhors a vacuum and, in order not to breach section 7 (1) of the 1999 constitution (supra), I yield to public interest, but with displeasure over the said conduct of the respondent, to grudgingly refuse the application for mandatory injunction. The substantive appeal is, however, placed on the accelerated list for its expeditious determination.
Parties to bear their costs.
Appearances
Afolabi Fashanu (SAN) with O, Oduntan Esq. and N. Abass for Appellants/Applicants. For Appellant
AND
Adesola Shobayo (Mrs) (Director Civil Litigation) Ministry of Justice, Ogun State with Modupe Adelewo (Miss) Principal State Counsel for Respondent. For Respondent
