NATIONAL PENSION COMMISSION V. CHIEF ORLANDO OLAIYA OJO & ORS (2013)

NATIONAL PENSION COMMISSION V. CHIEF ORLANDO OLAIYA OJO & ORS

(2013)LCN/6250(CA)

In The Court of Appeal of Nigeria

On Friday, the 31st day of May, 2013

CA/L/1103/2011

JUSTICES

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

Between

NATIONAL PENSION COMMISSION Appellant(s)

AND

1. CHIEF ORLANDO OLAIYA OJO
2. NZE CHIDI DURU
3. THE ATTORNEY GENERAL OF THE FEDERATION Respondent(s)

RATIO

WHETHER OR NOT THE APPEAL COURT CAN INTERFERE WITH THE EXERCISE OF DISCRETION OF THE TRIAL COURT

In our humble view, considerable caution and circumspection are called for in this sort of appeal. The reason is not far to seek. What is involved in this appeal is not the exercise of the discretion of this court. Thus, we lack the authority to substitute our discretion for that of the lower court. This court could only interfere if the lower court’s discretion was not exercised judicially and judiciously, that is, if its exercise was mala fide, arbitrary, illegal, or that it either considered extraneous matters or did not take material issues into consideration.
Thus, the issue here is limited to the question whether the exercise of that discretion was in accordance with the dictates of justice, The Resident, Ibadan Province v. Lagunju (1954) 14 WACA 549, 552; Aruna Kudoro v. Alaka (1965) 1 FSC 82, 83; [1956] SCNLR 255; University of Lagos and Anor v. Aigoro [1985] 1 NWLR (pt. 1) 143, 148; Oyeyemi v. Irewole Local Government Council (1993) 1 NWLR (pt 270) 462.
In this appeal, we shall proceed on the irrefutable premise that the very hallmark of the proper exercise of a judicial discretion is that it should be exercised in accordance with any relevant rules of law or practice and according to the rules of reason and justice and not in accordance with private or whimsical opinion, humour, or sentiment, Rooke’s Case (1598) 5 Co. Rep. 99b; Sharpe v. Wakefield (1891) AC 173, per Lord Halsbury at 173; cited in Oyeyemi v. Irewole Local Government Council (supra). PER NWEZE, J.C.A.

THE PRINCIPLES OF GRANTING INJUNCTIONS PENDING TRIAL

In the first place, we observe that the discretion exercisable in awarding an injunctive relief pending appeal is not co-extensive; co-eval or conterminous with the jurisdiction exercisable in awarding injunctive reliefs pendent lite, that is, in the course of the proceedings, Olu of Warri v. Hon Philip Nnaemeka-Agu (1994) 1 NWLR (pt 319) 192; Lekwot v. Judicial Tribunal [1993] 2 NWLR (pt 276) 410.The principles for granting injunctions pending trial are well illustrated in case law, Kigo v. Holman (1980) 3-4 SC 60; Kotoye v. CBN; 7-UP Bottling Co. v. Abiola etc, N. Tobi, The Law of Interim of Injunction in Nigeria, (Ibadan: St Paul’s Publishing House, 2006) passim; A. Babalola, Injunctions and Enforcement of Orders (Ile-Ife: OAU Press Ltd, 2000) passim; M. I. Jegede, Principles of Equity (Lagos: MIJ Professional Publishers Ltd, 1981), Spry, Equitable Remedies, passim. PER NWEZE, J.C.A.

THE PRINCIPLE OF THE EXERCISE OF JURISDICTION IN AWARDING AN INJUNCTION PENDING APPEAL

CHIMA CENTUS NWEZE J.C.A. (Delivering the Leading Judgment): This appeal eventuated from a ruling of the Federal High Court, Lagos Judicial Division, delivering on November 28, 2011. In the said ruling, the court (hereinafter referred to as the lower court) awarded an injunctive order pending appeal. The events culminating to the said order may be summed up thus. By their motion ex parte, the first and second respondents in this appeal, [as applicants], moved the lower court for leave to apply for judicial review to entreat for the following reliefs:
(a) A declaration that the purported removal of the first and second applicants, Chief Orlando Olaiya Ojo and Nze Chidi Duru vide latter Ref. Nos. PENCOM/INSP/SURV/FIRST GUARANTEE/11/12 dated 12 August 2011 and signed by one M.K. Ahmed Director General of National Pension Commission is illegal, null and void and of no effect whatsoever;
b. An order of certiorari into this court and quashing the decision removing the first and second applicants as Directors of First Guarantee Pension Limited contained in letters Ref. Nos. PENCOM/INSP/SUSRV/FIRST GUARANTEE/11/12 dated 12th August, 2011;
c. An order setting aside all the steps or actions taken by the first respondent based (sic) or connected with or relating to the letters Ref. Nos. PENCOM/INSP/SURV/FIRST/GUARANTEE/11/12 dated 12th of August, 2011;
d. A perpetual injunction restraining the respondents whether by themselves, their servants, agents, officers and or representatives from taking any further action in any form whatsoever or giving effect to the decision communicated to the Applicants in the letters Ref. Nos. PENCOM/INSP/SURV/FIRST GUARANNTEE/11/12 dated 12th August, 2011 and/or Target Examination Report dated 22nd March
2011;
2. An order that the grant of leave shall operate as a stay of all actions and steps taken by the respondents in respect of or in relation to or in connection with the letters Ref. Nos. PENCOM/INSP/SURV/FIRST GUARANNTEE/11/12 dated 12th August 2011 and Target Examination Report dated 22nd March 2011 pending the determination of the substantive application for judicial review or pending further order by this court;
3. An order granting leave to the plaintiffs/applicants to serve the originating processes in this suit on the respondents who reside outside the jurisdiction of this Honorable court at the Federal Capital Territory, Abuja.
On September 6, 2011, the lower court ordered as prayed. It granted the applicants (now, first and second respondents), leave to apply for judicial review. The appellant, upon being served with the order of the lower court, repaired to the lower court. It filed two applications on December 15, 2011. In the first application, it implored the court to vacate the said ex parte order of September 6, 2011. The second application importuned the court to strike out the entire suit for want of jurisdiction. The court took the two applications together and reserved its ruling. On October 20, 2011, it delivered its ruling in which it dissolved its aforesaid ex parte order and struck out the suit for want of jurisdiction. The first respondent was dissatisfied with the ruling, hence, its appeal evidenced in the Notice of Appeal dated October 20, 2011. It, equally, filed an application praying:
…for an order of injunction restraining the respondents whether by themselves, their servants, agent, officers and/or dealing with the assets of First Guarantee Pensions Limited or taking any steps or further actions in any form whatsoever or giving effect or any directives to the decision communicated to the applicant in the letter Ref. Nos. PENCOM/ANSP/SURV/FIRST GUARANNTEE/11/12 dated 12 August, 2011 and/or Target Examination Report dated 22nd March 2011 in order to preserve the res pending the determination of the Appeal filed in this suit and for such further or others as this Honorable Court may deem fit to make in the circumstances.
The appellant opposed the application. Accordingly, it filed its counter affidavit. The court heard arguments on the application on November 17, 2011 and delivered its ruling eleven days later, precisely, on November 28, 2011. In its ruling, the lower court (coram Abang J) awarded an injunctive order pending appeal against the appellant as prayed for in the said application. Aggrieved by the ruling, the appellant appealed to this court.
The following issues were put forward for the determination of this appeal.
(i) Whether the lower court was right when it held that the issuance or non issuance of a pre-action notice in proceedings involving judicial review is an exceptional or special and recondite issue to warrant the grant of injunction pending appeal?
(ii) Whether, despite the decisions of the Supreme Court in, Amadi v. NNPC [2000] 10 NWLR (pt. 674) 76 and Nigercare Development Co. Ltd v. Adamawa State Water Board and Ors. (2008) 9 NWLR (pt. 1093) 498, the Court of Appeal decision; in Ezenwa v. Bestway Electrical Manufacturing Co. Ltd (1998); 8 NWLR (pt 613) 61 can be said to be an authority to the effect that pre-action notice is not require if judicial review proceedings?
(iii) Whether the lower court evenly weighed the balance of convenience between the appellant and the first and second respondents in granting the injunction pending appeal in favour of the first and second respondent?
The first and second respondents distilled a sole issue for the determination of this appeal. It was framed thus “whether or not the first and second respondents satisfied the requirements for the grant of an injunction pending appeal before the lower court.” This sole issue would be considered together with the appellant’s issues one and three. We shall take the liberty to renumber the appellant’s issues, accordingly. The original issue three is, now, re-numbered issue two. In the same vein, the original issue is now issue three in this judgment.
ARGUMENTS OF COUNSEL
ISSUE 1
Whether the lower court was right when it held that the issuance or non- issuance of a pre-action notice in proceedings involving Judicial review is an exceptional or special and recondite issue to warrant the grant of injunction pending appeal?
When this appeal came up for hearing on May 2, 2013, Emeka Ngige SAN, for the appellant, appearing with O. A. Egwuatu and K. Ojukwu adopted the brief filed on March 21, 2012. In the said brief, he drew attention to the lower court’s ruling delivered on the November 28, 2011. In the ruling, it held as follows:
In my humble view, this issue whether issuance and service of pre-action notice is a pre-condition on application for judicial review is a novel issue which is recondite in nature and this constitutes a special circumstance to warrant the grant of order sought.
Counsel disagreed with the view of the lower court. According to him, the issuance or non-issuance of a pre-action notice as a pre-condition in judicial review proceedings is not an exceptional or special circumstance for the grant of injunction pending appeal. In his view, the issue is neither recondite nor special to warrant the grant of the said injunctive relief. He observed that several decisions of the Supreme Court and even of this Court had, consistently, held that where a pre-action notice is, mandatorily, required to be issued and served before the institution of a suit, any suit so instituted without complying with the statutory provision was incompetent and the court would have no jurisdiction to entertain such a suit.
He maintained that suits commenced by way of judicial review were caught by the provision of section 95 of the Pension Reform Act. Thus, there was nothing recondite in that issue as to warrant the grant of injunction pending appeal. He referred to Amadi v. NNPC [2000] (pt. 674) 76 where the Supreme Court interpreted section 11(2) of the NNPC Act 1977 which is in pari materia with section 95 of the Pension Reform Act 2004. He noted that the apex court applied the decision in Amadi v. NNPC (supra) in Nigercare Dev. Co. Ltd v Adamawa State Water Board [2008] 9 NWLR (pt. 1093) 498. In the latter case, the court reiterated that the phrase “No suit shall be commenced…” prohibits the commencement of all suits whatsoever. The court concluded that the provision of section 11(2) of the NNPC Act 1977 (supra) “… covers all suits and whatever causes of action and is not limited to anything done pursuant to any act or statute,” pages 517 – 518 paragraphs F – B of the report. He, also, drew attention to Ntiero v. NPA (2008) 10 NWLR (pt. 1094) 129 where the apex court re-stated the same principle of law.
In his view, since the apex court had, repeatedly, interpreted the expression or phrase “No suit shall be commenced” as used in section 95 of the Pension Reform Act (supra) to include “all suits and whatever causes of action and is not limited to anything done pursuant to any act or statute”, and “relates to all or any type of action,” then there was nothing special or recondite in the appeal which the first and second respondents filed. He cited the definition of the term “suit” as “any proceeding by a party or parties against another in a court of law. It is also termed law suit, suit at law,” in Bryan A. Garner (ed), Black’s Law Dictionary, (Seventh edition) 1448.
He canvassed the view that what this court would determine in the appeal filed by the first and second respondents is whether section 95 of the Pension Reform Act (supra) admits of any exception to its applicability. He maintained that since the apex court had answered that question in its interpretation of similar provisions in the NNPC Act 1997 and the University of Ife Edit 1977, there was nothing special or recondite in the issue before this court in the said appeal. He pointed out that the only way of getting the apex court to reconsider its above earlier decisions was by way of a formal application to overrule them, Atolagbe v. Awuni [1997] 9 NWLR (pt. 522) 536, 566. He submitted that this court is bound by the decisions of the of the apex court on the interpretation of provisions similar to section 95 of the Pension Reform Act (supra), citing Amadi v. NNPC (supra) and Nigercare Development Co. Ltd v Adamawa State Water Board (supra) etc.
He noted that the lower court had earlier held that it had no jurisdiction to entertain the first and second respondents’ suit and struck same out. He contended that, having so decided, the grant of an injunction pending appeal was tantamount to approbating and reprobating.
He conceded that, by Order 28 Rule (1) of the Federal High Court (Civil Procedure) Rules 2009, and the cases on the point, an applicant, whose case has been dismissed, could apply for an interlocutory injunction pending appeal. He, however, submitted that, in the instant case, the lower court lacked jurisdiction to grant injunction pending appeal because there was a manifest lack jurisdiction.
This was so for a specific statutory provision divested the lower court of jurisdiction to entertain the matter in the absence of issuance and service of a pre-action notice on the appellant by virtue of section 95 of the Pension Reform Act 2004.
He observed that Sodeinde v. Registered Trustees of the Ahmadiya Movement In-Islam [1980] 1-2 SC 163, 185-186 which the lower court relied on in granting the said injunction pending appeal admitted of an exception. He contended that that Section 95 of the Pension Reform Act 2004 (supra) was a statutory provision which made it manifest that the lower court lacked the jurisdiction to grant injunction pending appeal in this case. He submitted that because of section 95 of the pension Reform Act, the lower court should not have granted injunction pending appeal since there was a manifest lack of jurisdiction statutorily provided in the Pension Reform Act. He took the view that a court without jurisdiction cannot make valid orders, Soludo v. Osigbo [2009] 18 NWLR (pt. 1173) 290; [2009] 12 SC (pt. 11) 137.
He further contended that the injunction granted by the lower court went beyond preserving the res in this suit. This was even more so as the first and second respondents had been removed as directors of First Guarantee Pension Ltd even before the suit was filed. He maintained that there was nothing to preserve in the removal of the directors. Above all, an injunction does not lie to restrain a completed act, Soludo v. Osigbo (supra).
He explained that the order of injunction restraining the Respondents “whether by themselves, their servants, agents, officers and or representatives from interfering with and/or dealing with the assets of First Guarantee Pension Ltd …” was not one of the reliefs sought in this court. He noted that the said order was made in vacuo and is left hanging ad infinitum. He contended that injunctions pending appeal were, usually, made pending the outcome of an appeal where one of the reliefs at the appellate court was for perpetual injunction. He observed that the injunction which the lower court granted was not made pending the outcome of any substantive application in this court as the grounds of appeal and the reliefs sought were not related to any order of injunction pending before this court. He referred to the reliefs which the first and second respondents are seeking from this court, namely, “an order setting aside the order of the lower court declining jurisdiction to entertain this matter and striking out the Motion for judicial review.”
He pointed out that the first and second respondents never asked for any injunctive relief, whether perpetual or not, in its appeal pending in this court. He, therefore, maintained that the lower court was wrong to have granted an injunction pending appeal when no such relief was presented to this court. He urged the court to resolve this issue in favour of the appellant and hold that there were no special or exceptional circumstances in the appeal filed by the first and second respondents to warrant the lower court’s grant of the injunction pending appeal.
ISSUE 2
Whether the lower court evenly weighed the balance of convenience between the appellant and the first and second respondents in granting the injunction pending appeal in favour of the first and second respondents?
On this issue, he submitted that the lower court, in granting the said injunction pending appeal failed to evenly weigh the balance of convenience between the appellant and the first and second respondents. He noted that the court only considered the balance of convenience form the angle of the first and second respondents alone without, conversely, considering what would happen in the event that the appeal failed.
He drew attention to pages 326 – 327 of the record where the court reasoned that:
If the injunction sought is granted and the appeal succeeds at the end of the day, the life span of the injunction will be terminated upon judgment of the Court of Appeal having been delivered. The Applicant’s substantive suit will be relisted for hearing on the merits. The order if granted in my view is not to restrain a completed act. Rather the order if granted is to ensure that the Applicant’s substantive suit is preserved in the event that its appeal succeeds, so that the suit then be heard on its merit and also the order of the Court of Appeal will not be rendered nugatory and make the entire efforts of the applicant and the Court of Appeal end in vain”.
In the view of learned senior counsel, the converse of what would happen, if the appeal was dismissed did not play any role in the consideration of the lower court. He pointed out that the appellant had argued before the lower court that the res in this suit would not be rendered nugatory in the event that the first and second respondents succeeded in this court in respect of their appeal. It was, further, argued that the interest, assets and value of the applicants would not, in anyway, be adversely affected. On the other hand, they would be enhanced, the appellant being a statutory body empowered to regulate and supervise the First Guarantee Pension Ltd. He pointed out that the appellant, equally, contended that the directors that were removed, the first and second respondents herein, could be reinstated should this court decide that their appeal was meritorious. The appellant, above all, pointed out that damages could, adequately, compensate the first and second respondents, the removed directors, should they succeed in this court, pages 293, 296 to 294 of the record.
He submitted that the lower court was under obligation to place the issue of balance of convenience in granting the injunction pending appeal on an imaginary scale before deciding on which side the balance tilted. He canvassed the view that the lower court failed to do this. He observed further that, had the lower court evenly weighed where balance of convenience tilted between the appellant and the first and second respondents, it would have arrived at a better decision which would be in favour of not granting injunction pending appeal.
He noted that the appellant is a statutory body established by section 14 of the pension Reform Act 2004. The principal object of the appellant is to “regulate, supervise and ensure the effective administration of Pension matters in Nigeria,” section 15 of the Pension Reform Act (supra). The functions and powers of the Commission are stipulated in Sections 20 and 21 of the Act. These functions include:
(i) To regulate and supervise the scheme established under the Act;
(ii) Promote capacity building and institutional strengthening of Pension fund administration and custodians;
(iii) Receive and investigate complaints of impropriety leveled against any Pension Fund Administrator, custodian or employer or any other staff or agent and
(iv) To perform such other suited which in the opinion of the commission, are necessary or expedient for the discharge of its functions under the Act.
He, further, submitted that, had the lower court considered the fact that the actions of the appellant were in line with its statutory functions, and aimed at protecting the contributors to the contributory Pension Scheme whose funds were being managed by First Guarantee Pension Ltd. where the first and second respondent were directors, it would have refused the application of the first and second respondents. He explained that the appellant’s actions would also protect the shareholders of the company and prevent the first and second respondents who had been found wanting in the performance of their duties by the appellant from dissipating the assets or funds of First Guarantee Pension Ltd. He urged the court to resolve this issue in favour of the appellant.
FIRST AND SECOND RESPONDENTS’ SUBMISSIONS
Learned counsel for the first and second respondents, V. O. Ogude adopted their brief filed on June 6, 2012 and deemed properly on February 12, 2013. In the said brief, he submitted a sole issue for the determination of this appeal. It was framed thus: “whether or not the first and second respondents satisfied the requirements for the grant of an injunction pending appeal before the lower court”.
He submitted that the said respondents fulfilled the requirements for the grant of an order for injunction pending appeal, citing Onuzilike v. Comm. For Special Duties (1990) 7 NWLR (pt. 161) 255, 259 -261.
He took the view that, in the instant case, the first and second respondent’s application at the lower court complied with the above principles, citing paragraphs 3, 4, 6, 7, 9, 11, 13, 14, 15, 16, 17 and 19 of the first and second respondents affidavit in support of their application for an injunction pending appeal, pages 269 – 271 of the record. He contended that the appeal of the first and second respondents, Appeal No CA/L/17/12, pages 243- 247 of the record, raises a novel issue, to wit, whether they ought to issue a pre-action notice to the appellant herein before commencing a prerogative action for judicial review. He drew attention to page 325 of the record.
He contended that Amadi v. NNPC (supra) and Nigercare Dev. Co. Ltd v. Adamawa State Water Board (supra) which the appellant cited to challenge the novelty of the said appeal were, clearly, distinguishable from the proceedings before this Court. He submitted further that the above cases emphasized the general principle of law on pre-action notice in respect of suits commenced by Writ. In his view, the cases do not apply to cases for judicial review. He observed that the issuance of pre-action notice was not water tight, citing the unreported decision of this court in Aku International Nig. Ltd v. Nigerian Ports Plc and Anor. (CA/L/184/98).
He submitted that, because of the nature and urgency involved in commencing a prerogative writ, to insist on the issuance of a pre action notice would amount to allowing the appellant to hide behind the mask of mere technicality to thwart, protract and defeat the consideration of an application for certiorari on the merit, Ezenwa v. Bestway Electrical Manufacturing Co. Ltd. (supra) 78 – 79.
He noted that the lower court had observed in its ruling that the law was not clear cut on the issuance of pre-action notice in respect of a prerogative writ, page 325 of the record. He submitted that an issue which was not clear cut in law was not only novel but, also, recondite in nature and thus constituted a special circumstance to warrant the grant of an order of injunction pending appeal. He referred to Odutola v. F.B.N. Ltd (2000) 4 NWLR (pt. 653) 341 where this court held that “to sustain an injunction pending appeal, there must be valid, substantial and arguable grounds of appeal as the injunction is not granted as a matter of course….” He agreed with the lower court, page 325 of the record, that the first and second respondents’ grounds of appeal raised substantial points of law that required the preservation of the res pending the outcome of appeal.
He canvassed the view that an injunction pending appeal was different from pretrial interlocutory injunctions in the sense that it was made in the exercise of the rare jurisdiction that a trial court was left with when it must have delivered judgment or ruling and had become functus officio in respect of the matter before it. In his view, the jurisdiction which was exercised by the lower court in granting the order of injunction pending appeal was the jurisdiction to preserve the res in dispute pending appeal.
He submitted that Soludo v. Osigbo (supra) which the appellant cited was distinguishable from the instant suit in the sense that the first and second respondents were only granted an injunction pending appeal. On the other hand, in Soludo (supra), this court, whilst an appeal on jurisdiction was pending, made orders on issues in contest in the suit without first determining the question of jurisdiction. He pointed out that the apex court appreciated the need to preserve the res pending appeal, citing page of the record.
He contended that the lower court did not go beyond its jurisdiction to grant the order for injunction pending appeal. He cited Order 28 Rule 1 (1) of the Federal High Court (Civil Procedures) Rules, 2009. According to him, the rules of Court were clear on the point. In his view, the lower court, in accordance with the rules of Court, rightly, exercised its jurisdiction to grant the injunction pending appeal. This is more so where an application for stay of execution or stay of proceedings would be inappropriate as it was in this case.
He took the view that the appellant misconceived the decision in Sodeinde v. Registered Trustees of the Ahamadiya Movement In-Islam (supra). He submitted that section 95 of the Pension Reform Act, 2004 did not constitute a manifest lack of jurisdiction. It was not a specific statutory provision against the lower court’s exercise of jurisdiction in granting an injunction pending appeal. He contended that the Pension Reform Act 2004 only provided for the issuance of pre-action notice before an action is brought against it. There was no provision in the Act which deprived the Federal High Court of its jurisdiction to grant an injunction pending appeal. He took the view that unless there was a specific provision to that effect, the lower court, in accordance with Order 28 Rule 1 (1) of the Federal High Court (Civil Procedures) Rules, 2009, rightly, exercised its jurisdiction to grant the order for injunction pending appeal.
He took the view that it was not necessary for the first and second respondents must to ask for injunctive reliefs from this court before the lower court could exercise its jurisdiction to order for injunction pending appeal. He noted that what that first and second respondent had before this court was an appeal against the decision of the Lower Court. In order not to render that appeal nugatory, the lower court, rightly, exercised its jurisdiction to order for injunction pending appeal. In his view, Order 28 Rule 1 (1) of the Federal High Court (Civil Procedures) Rules 2009 lent support to the above. He, also, referred to Order 7 Rule 4 of the Court of Appeal Rules 2011 and submitted that the first and second respondents did not need to ask for injunctive reliefs from this court, having been granted same by the lower court at first instance.
He submitted that the issue of balance of convenience tilted in favour of the first and second respondents as was held by the lower court, pages 326-327 of the record. He pointed out that the first and second respondents, in their substantive suit, sought declaratory and injunctive reliefs against the appellant. These reliefs were intended to protect their rights and interest in First Guarantee Pensions Limited. By their depositions in their affidavit in support of the application for the injunctive relief, pages 269-271 of the record, they showed that their interest was at stake and there was the need to preserve the “res” in the matter pending the determination of their appeal in Appeal No CA/L/17/12.
He noted that, by their affidavit, they showed that without an injunction in place, the appellant would take far- reaching decisions that would affect the interest, assets and value of First Guarantee Pension Limited and which would also affect their interest as Directors and shareholders in First Guarantee Pension Limited. He submitted that, without the injunction pending appeal, the appellant would, further, take steps in the company that would be even more detrimental to the first and second respondents and for which damages could not compensate them. He submitted that the substantive suit was an action for judicial review of the acts of the appellant in First Guarantee Pension Ltd. The order for injunction pending appeal was to ensure that the first and second respondents’ substantive suit was preserved and the status quo maintained at First Guarantee Pension Ltd pending the outcome of their appeal before this court in Appeal No CA/L/17/12. He urged the court to dismiss the appeal for being unmeritorious.
RESOLUTION OF ISSUES 1 AND 2
As shown above, the lower court, after it had dissolved the injunctive order and struck out the suit, still favoured the first and second respondents with an order of injunction pending appeal. In other words, it exercised its equitable discretion in favour of the application entreating it for an order of injunction pending appeal. This appeal, inter alia, is against that exercise of discretion.
In our humble view, considerable caution and circumspection are called for in this sort of appeal. The reason is not far to seek. What is involved in this appeal is not the exercise of the discretion of this court. Thus, we lack the authority to substitute our discretion for that of the lower court. This court could only interfere if the lower court’s discretion was not exercised judicially and judiciously, that is, if its exercise was mala fide, arbitrary, illegal, or that it either considered extraneous matters or did not take material issues into consideration.
Thus, the issue here is limited to the question whether the exercise of that discretion was in accordance with the dictates of justice, The Resident, Ibadan Province v. Lagunju (1954) 14 WACA 549, 552; Aruna Kudoro v. Alaka (1965) 1 FSC 82, 83; [1956] SCNLR 255; University of Lagos and Anor v. Aigoro [1985] 1 NWLR (pt. 1) 143, 148; Oyeyemi v. Irewole Local Government Council (1993) 1 NWLR (pt 270) 462.
In this appeal, we shall proceed on the irrefutable premise that the very hallmark of the proper exercise of a judicial discretion is that it should be exercised in accordance with any relevant rules of law or practice and according to the rules of reason and justice and not in accordance with private or whimsical opinion, humour, or sentiment, Rooke’s Case (1598) 5 Co. Rep. 99b; Sharpe v. Wakefield (1891) AC 173, per Lord Halsbury at 173; cited in Oyeyemi v. Irewole Local Government Council (supra).
Now, in furtherance of the exercise of its discretion, the lower court proceeded thus at page 365 of the record:
In my humble view, the issue whether issuance and service of pre-action notice is a pre-condition on application for judicial review is a novel issue which is recondite in nature and this constitutes a special circumstance to warrant the grant of order sought.
The question now is whether the exercise of the lower court’s discretion predicated, inter alia, on the above reason was in accordance with the relevant rules of law or practice. In the appellant’s submission, the above would, readily, fly in the face of the rules for the grant of injunctive orders pending appeal. On their part, the first and second respondents contended that the lower court’s reason was in tandem with the settled authorities.
In the first place, we observe that the discretion exercisable in awarding an injunctive relief pending appeal is not co-extensive; co-eval or conterminous with the jurisdiction exercisable in awarding injunctive reliefs pendent lite, that is, in the course of the proceedings, Olu of Warri v. Hon Philip Nnaemeka-Agu (1994) 1 NWLR (pt 319) 192; Lekwot v. Judicial Tribunal [1993] 2 NWLR (pt 276) 410.

The principles for granting injunctions pending trial are well illustrated in case law, Kigo v. Holman (1980) 3-4 SC 60; Kotoye v. CBN; 7-UP Bottling Co. v. Abiola etc, N. Tobi, The Law of Interim of Injunction in Nigeria, (Ibadan: St Paul’s Publishing House, 2006) passim; A. Babalola, Injunctions and Enforcement of Orders (Ile-Ife: OAU Press Ltd, 2000) passim; M. I. Jegede, Principles of Equity (Lagos: MIJ Professional Publishers Ltd, 1981), Spry, Equitable Remedies, passim.

On the other hand, the principles for the exercise of discretion in awarding injunction pending appeal are the same with the principles for stay of execution, Ajomali v. Yaduat (No.2) [1991] 5 NWLR (pt.191) 266; Josien Holdings Ltd v. Lornamead Ltd. [1995] 1 NWLR (pt 371) 254; [1995] 1 SCNJ 133; (1995) LPELR-SC.183/1992; Aboseldehyde Laboratories Plc v. Union Merchant Bank Ltd and Anor (2013) LPELR-SC.276/2003. In exercising its discretion in both species, that is, stay of execution and injunction pending appeal, the court is under obligation to consider the following conditions, already, set out in binding authorities: (1) the grounds of appeal must raise substantial legal issues in an area of Law that is novel or recondite; (2) the application must disclose special circumstances why the application should be stayed or granted; (3) the application must disclose why matters should be put in status quo or preserve the res so as not to render the appeal nugatory, Onuzulike v. Commissioner for special duties Anambra and Anor (1990) 7 NWLR (pt. 161) 252, 259 (approvingly endorsed in SPDC Nig Ltd v. Amadi (infra); Akibu v. Oduntan (1991) 2 NWLR (pt.171) 1; Nwosu v. Nnajimka (1997) 12 NWLR (pt. 531) 100; Nduba (Nigeria) Limited v. UBN Plc (2007) 9 NWLR (pt. 1040) 439, see per Muntaka-Coomasie JSC in SPDC Nig Ltd v. Amadi (2011) LPELR-SC.150/2010, 53-54.
As shown above, the lower court at page 365 of the record held as follows:
In my humble view, the issue whether issuance and service of pre-action notice is a pre-condition on application for judicial review is a novel issue which is recondite in nature and this constitutes a special circumstance to warrant the grant of order sought.
We had noted the divergent submissions on this point. We begin with the first requirement. In NNPC v. Famfa Oil Ltd (2009) LPELR-SC.178/2008, 15-16, Fabiyi JSC noted that the adjective “recondite” is defined as obscure, little known, difficult to understand’. The distinguished jurist cited the Chambers’ Dictionary where the word is defined as “complicated, concealed, dark, deep, difficult, hidden, intricate, involved, mysterious, mystical, obscure, profound, secret, formal abstruse, arcane, esoteric; opposite of simple and straightforward.”
In this con, we, equally, note that “a notorious point of law which has been overburdened with previous decisions cannot be said to be recondite,” Lijadu v. Lijadu (1991) 1 NWLR (pt 169) 627, 646. What the lower court considered a recondite point of law was the question whether under section 95 (supra), applications for judicial review were exempted from the pre-action notice requirement. Learned counsel for the appellant was not enthused with this conclusion. We appreciate his agitation in this regard. The interpretation of the phrase in that section, namely, “No suit shall be commenced…” has been “overburdened with previous decisions” of the apex court, FCA Ltd v. OAU (1993) 5 NWLR 171; Mobil Nig Unltd v. LASEPA (2003) 5 WRN 1; Amadi v NNPC (2000) 5 WRN 47; NNPC v. Farlin (1998) 7 NWLR (pt 559) 598; Umukoro v NPA (1997) 4 NWLR (pt 502) 656; Katina Native Authority v. Makin Dawa (1971) 1 NWLR 100; Atolagbe v Awuni (1997) 7 SCNJ 4; Anambra State Government v Nwankwo (1995) 9 NWLR (pt. 418) 247; NPC – Nig Cement Corporation Ltd. v NRC (1992) NWLR (pt 220) 747. As such, there is nothing recondite in the question.
That is not all. As Fabiyi JSC held in NNPC v. Famfa Oil Ltd (supra), even if the respondent had established that the question constituted a recondite issue, it must co-exist with special circumstances. Just as in application for stay of execution, in an application for injunction pending appeal, it is the subsistence of a recondite point of law coupled with the depiction of a special circumstance that would warrant a grant of an injunction pending the determination of the main appeal, Fabiyi JSC in NNPC v. Famfa Oil Ltd. (supra). Thus, where these are non-existent, the application would be discountenanced. Above all, we even take the view that the lower court would appear to have glossed over one major point.
It has been noted that the requirement that the ground of appeal must raise a point of Law that is recondite does not depend on the importance or seriousness of the ground of appeal taken in isolation. Rather, it relates to what the effect of a refusal of stay of execution on the appellant would be if the appeal succeeds, Ajomali v. Yoduat (No.2) (1991) 5 NWLR (pt.191) 256. As Nnaemeka-Agu JSC (of the Blessed Memory) put it at page 291:
The recondity of a point of Law with reference to an application for a stay of execution [and this includes applications for injunctions pending appeal] is not determined in the abstract by reference to the importance or difficulty of the point raised in the ground of appeal per se. Rather, it is determined in concrete terms by reference to what the effect of a refusal to stay execution may be on the rights of the appellant, if successful in the appeal…
In our view, and applying the above principle, we are not satisfied that the lower court proceeded on the proper principles in considering the effect the grant of this application would occasion on the appellant’s statutory obligations as supervisory agency, as counsel for the appellant argued. What is more, from the authorities cited above, we are not in doubt that the ground of appeal on this point does not orbit around any recondite issue for determination. Turning to the second condition, namely, that the application must disclose special circumstances, we note that case law prescribes that the special circumstances under which an order of injunction pending an appeal may be made are: (a) where the subject matter of the dispute will be destroyed if Injunction is not granted; (b) Where a situation of hopelessness would be foisted on the Court especially an appellate court; (c) Where execution will paralyse right of appeal; (d) Where the order of the Court would be rendered nugatory, and (e) Where execution will prevent a return to status quo if the appeal Succeeds, Ndaba Nigeria Limited v. UBN Plc (supra); SPDC Nig Ltd v. Amadi (supra). As stated earlier, counsel for the appellant observed that the lower court considered the issuance or non-issuance of a pre-action notice as a pre-condition in judicial review proceedings as an exceptional or special circumstance for the grant of injunction pending appeal. The court held as follows “[i]n my humble view, this issue whether issuance and service of pre-action notice is a precondition on application for judicial review is a novel issue which is recondite in nature and this constitutes a special circumstance to warrant the grant of order sought.”
Counsel was not persuaded by that reasoning. We are, equally, not persuaded by that reasoning. In the first place, there is nothing recondite on the issue of issuance of pre-action notices. The apex court decisions the question have construed the phrase “No suit shall be commenced…” to embrace all categories of suits. We had cited the cases on this point. What is more, the said question of pre-action in all suits have been “overburdened with previous decisions” that it “cannot be said to be recondite,” Lijadu v. Lijadu (supra). In our view, therefore, the lower court proceeded on the wrong principle in its exercise of discretion on this point. This court will, therefore, not abdicate its duty. Rather, we find that we have to interfere with that exercise of discretion in order to prevent injustice to the appellant, Ogolo v. Ogolo (supra); Adejumo v. Ayantegbe (1989) 3 NWLR (pt 110) 417, 445. We must pause here for one or two comments on another divergent interpretation of section 95 (supra). According to counsel for the appellant, section 95 (supra) was the statutory provision which made it manifest that the lower court lacked the jurisdiction to grant an order of injunction pending appeal in this case. He submitted that having regard to the said section 95 (supra), the lower court should not have granted the said order of injunction pending appeal since there was a manifest lack of jurisdiction as evident in the said provision of the Pension Reform Act, citing Sodeinde v. Regtd Trustees (supra). He, further, submitted that a court without jurisdiction could not make valid orders, Soludo v. Osigbo (supra).
Expectedly, counsel for the first and second respondents disagreed with this interpretation of the above statutory provision and the two cases cited. We, entirely, agree with the first and second respondents’ counsel. Section 95 (supra) does not oust the jurisdiction of the lower court to grant an order of injunction pending appeal. It merely sets out a pre-condition to the activation of the court’s jurisdiction against the National Pension Commission, Owodunmi v. Registered Trustees of CCC [2000] 2 WRN 39; Madukolu v. Nkemdilim (2001) 46 WRN 1; Klifco v. Holfmann [1996] 3 NWLR (pt 435) 276; Ajayi v. Adebiyi (2013) 3 WRN 1, 36-37. So, if an intending plaintiff issues the requisite pre-action notice in accordance with the tenor of the section, there would be no justifiable impediment to the exercise of the court’s jurisdiction, Mobil v. Lasepa (2003) 1 MJSC 112, 129 paragraphs D-F per Ayoola, JSC.
Thus, once the pre-action notice is, properly, issued and served, the agency would be subject to the lower court’s jurisdiction. With due respect, therefore, the appellant’s counsel’s reliance on Sodeinde v. Regtd Trustees (supra) and Soludo v. Osigbo (supra) was misplaced. The eloquent and compelling reasoning in the said cases is inapposite here, apropos the facts of the case that prompted this appeal and the statute that fell for construction, namely, section 95 of the Pension Reforms Act, 2004.
With regard to the question of balance on convenience [issues two], learned senior counsel for the appellant had submitted that the lower court, in granting the injunction pending appeal in favour of the first respondent, failed to evenly weigh the balance of convenience between the appellant and the first respondent. He observed that the lower court only considered the balance of convenience from the angle of the first respondent alone without conversely considering what would happen in the event that the appeal failed, citing pages 366 – 367 of the record.
The appellant had argued before the lower Court that the res in this suit would not be rendered nugatory in the event that the first respondent succeeded in this Court in respect of their appeal. Counsel had, equally, argued that the interests, assets and value of the applicant would not, in any way, be adversely affected. On the other hand, they would be enhanced, the appellant being a statutory body empowered to regulate and supervise the first respondent. He, equally, contended that the directors, who were removed, could be reinstated should this court decide that there was merit in the first respondent’s appeal. Above all, the appellant had pointed out that damages could, adequately, compensate the first respondent and its removal directors should the first respondent succeed in this court, pages 339, 341 to 342 of the record.
Now, this constitutive requirement for the grant of an injunction pending appeal is closely related to the issue of disclosing special circumstances. It comes to this, in an application for an injunction or stay of execution, the applicant has the burden to show that the balance of convenience he would suffer by the refusal of the application is more than that which the respondent would suffer if it is granted, Ukechukwu v. Iwugo (1989) 2 NWLR (pt. 101) 29; Total (Nig.) Plc v. Efakire (1998) 5 NWLR (pt.549) 307, approvingly, endorsed in SPDC Nig Ltd v. Amadi (supra). The rationale of all binding authorities on this point is that in an application for injunction pending appeal, the balance of convenience is a relevant consideration and would not be granted where compensation would suffice and or where the applicant cannot compensate the respondent in the damages to be suffered, Nwaganga v. Military Governor of Imo State (1987) 3 NWLR (pt 59) 185; Oye v. Governor of Oyo State (1993) 1 NWLR (pt. 303) 437; Agbakobo v. Director SSS (1993) 7 NWLR (pt. 305) 363, approvingly, endorsed in SPDC Nig. Ltd. v. Amadi (supra).
From our perusal of paragraphs 3, 4, 6, 7, 9, 11, 13, 14, 15, 16, 17 and 19 of the first and second respondents’ affidavit in support of their application for an injunction pending appeal, pages 314-316 of the record, we endorse the submissions of the appellant’s counsel on this point. We agree that the lower court, in granting the injunction pending appeal in favour of the first and second respondents, failed to evenly weigh the balance of convenience between them and the appellant.
Indeed, from our reading of the reasoning of the court, we take the view that the court proceeded on the wrong principle. At pages 366 – 367 of the record, the lower court held that:
If the injunction sought is granted and the appeal succeeds at the end of the day, the life span of the injunction will be terminated upon judgment of the Court of Appeal having been delivered. The applicant’s substantive suit will then be relisted for hearing on the merits. The order if granted in my view is not to restrain a completed act. Rather the order if granted is to ensure that the applicant’s substantive suit is preserved in the event that its appeal succeeds, so that the suit then be heard on its merit and also the order of the Court of Appeal will not be rendered nugatory and make the entire efforts of the applicant and the Court of Appeal end in vain.
Now, there are some crucial matters which the lower court would appear to have ignored. As counsel for the appellant pointed out, at the lower court, it was the case of the appellant [as respondent] that it is the statutory body empowered to regulate and supervise pension administration. Counsel for the appellant had, equally, contended that the directors, who were removed, could be reinstated should this court decide that there was merit in the first respondent’s appeal.
Above all, the appellant had pointed out that damages could, adequately, compensate the first and second respondents should the first respondent succeed in this court, pages 339, 341 to 342 of the record.
Against this background, would the lower court be said to have exercised discretion based on the governing considerations? For one, an applicant who like the first respondent, (entreated the lower court for an order of injunction pending appeal), has the burden to show that the balance of convenience he would suffer by the refusal of the application was more than that which the respondent would suffer if it was granted, Ukechukwu v. Iwugo (1989) 2 NWLR (pt. 101) 29; Total (Nig.) Plc v. Efakire (1998) 5 NWLR (pt. 549) 307, approvingly, endorsed in SPDC Nig Ltd v. Amodi (supra).
As, already, noted above, in all such applications, the balance of convenience is a relevant consideration. Thus, the application would not be granted where compensation would suffice and or where the applicant cannot compensate the respondent in the damages to be suffered, Nwaganga v. Military Governor of Imo State (supra); Oye v. Governor of Oyo State (supra); Agbakoba v. Director SSS (supra), approvingly, endorsed in SPDC Nig Ltd v. Amadi (supra).
If the lower court, in the exercise of its discretion, did not take these material facts into consideration, the question would remain whether the said exercise was in accordance with the dictates of justice, The Resident, Ibadan Province v. Lagunju (supra); Aruna Kudoro v. Alaka (supra); University of Lagos and Anor v. Aigoro (supra); Oyeyemi v. Irewole Local Government Council (supra)? With due respect to the counsel for the first and second respondents, his position is unsupportable having regard to the rich jurisprudence on this point, Igwe v. Kalu (1993) 4 NWLR (Pt 285) 1; (1993) 4 SCNJ 21; [1993] 24 NSCC (pt 1) 393; (1993) LPELR-SC.202/1990; Sotuminu v. Ocean Steamship (Nig.) Ltd (1992) LPELR-SC.55/1990; Josien Holdings Ltd v. Lornamead Ltd [1995] 1 NWLR (pt 371) 254; [1995] 1 SCNJ 133; (1995) LPELR-SC.183/1992; Aboseldehyde Laboratories Plc. v. Union Merchant Bank Ltd and Anor (2013) LPELR-SC.276/2003.

As Onnoghen JSC held in Aboseldehyde Laboratories Plc v. Union Merchant Bank Ltd and Anor (2013) LPELR-SC.216/2003:
For a court to declare whether or not to grant an injunction pending appeal, it has, as of legal necessity to go into a consideration of the competing legal rights of the parties to the protection of the injunctive relief. It is a duty placed on an applicant seeking injunction pending appeal to establish by evidence in affidavit(s) the legal right he seeks to protect by the order which of necessity makes it mandatory for the court to go into the facts to determine whether such entitlement has been established.
[Italics supplied]
In all, we are satisfied that the lower court did not exercise its said discretion in accordance with the above well-laid principles. In our view, this is one case in which we have every justification for interfering with a lower court’s exercise of discretion in order to prevent injustice to the appellant, Ogolo v. Ogolo (supra); Adejumo v. Ayantegbe (supra). Accordingly, we resolve issues one and two in favour of the appellant.
ISSUE 3
Whether, despite the decisions of the Supreme Court in Amadi v. NNPC (2000) 10 NWLR (pt. 674) 76 and Nigercare Development Co. Ltd v. Adamawa State Water Board and Ors (2008) 9 NWLR (pt. 1093) 498, the Court of Appeal decision in Ezenwa v. Bestway Electrical Manufacturing Co. Ltd (1999) 8 NWLR (pt. 613) 61 can be said to be an authority to the effect that pre-action notice is not required in judicial review proceedings?
Learned senior counsel explained that, in granting the order of injunction pending appeal, the lower court had anchored its decision on the fact that Ezenwa v. Bestway (supra) decided that a pre-action notice was not required in proceedings involving judicial review and that Amadi v. NNPC (supra) and the Nigercare case did not involve the issue of whether or not a pre-action notice was required to proceedings for judicial review.
He submitted that the decision in Ezenwa v. Bestway Electrical Manufacturing Co. Ltd (supra) was not an authority that a pre-action notice where, statutorily, required to be issued, was not required in judicial review proceedings. He pointed out that the apex court was confronted with the interpretation of section 11(2) NNPC Act, 1977, in pari materia with section 95 of the Pension Reform Act 2004. The court interpreted the above provision, especially, the phrase, “No suit,” as all embracing all suits and whatever cause of action. He cited Nigercare Dev. Co. Ltd. v. Adamawa State Water Board (supra), pages 517 – 518.
He submitted that Ezenwa v. Bestway Electrical ltd (supra) did not decide that a pre-action notice where, statutorily, provided for, was not required in judicial review proceedings. He pointed out that this court was faced with the issue of “whether the appellant who is not a public officers but sued jointly with the third and sixth respondents who are public officers in the service of the State entitled to three months pre-action notice by section 11(1) and (2) of the State Proceedings Law, laws of Anambra State Cap 131, but were not given, can avail himself of the provisions of the above law, when the relief claimed against them are not severable?”
He, further, submit that the decision of the court, page 78 paragraph H; page 79 paragraphs C-D, were reached per in curiam and were obiter dicta. He explained that the decisions did not fall within the issue placed before the Court. He observed that the public officers, the third – sixth respondents, did not challenge the suit on the basis of non-service of pre-action notice on them. Indeed, the said public officers, initially, filed a complaint at the Customary Court against the appellant. He noted that Ezenwa (supra), a decision of this court, was handed down on April 29, 1999, while Amadi v. NNPC (supra) and Nigercare (supra) were later decisions of the Supreme Court. While Amadi’s case was decided in the year 2000, Nigercare’s case was decided in 2008. He maintained that these decisions of the Supreme Court superseded that of this court.
He canvassed the view that in Amadi v. NNPC (supra) and Nigercare Dev. Co. Ltd v Adamawa State Water Board (supra), the Supreme Court had held that the provision covered all or any type covered by the provisions of section 95 of pension Reforms Act, 2004. He, equally, referred to the definition of “suit” in the Black’s Law Dictionary (supra). He submitted that where a Court was faced with the construction of a statutory provision in pari materia with one that had previously been construed, it had a duty to follow the principle laid down in the earlier case, Bakare v. NRC (2007) (pt. 1064) 606, 640. He urged the court to resolve the issue in favour of the appellant and hold that Ezenwa v. Best way Electrical Co. Ltd (supra) was not an authority that a pre-action notice was not required in proceedings in prerogative writs. Even if this court decided that a pre-action notice was not required in judicial review proceedings, the later Supreme Court decisions in Amadi v. NNPC (supra) and Nigercare Dev. Co. Ltd (supra) overruled the decision in Ezenwa’s case.
RESOLUTION OF THE ISSUE
It is, we believe, an elementary proposition that the Supreme Court is at the apex of the judicial hierarchy in Nigeria. Thus, no lower court is permitted the indulgence of contradicting the position the apex court has taken on a principle of law, Odi v. Osofile (1985) 1 NSCC 14; Abdulkarim v. Incar Nig Ltd. (1992) 7 NWLR (pt. 251); First Bank of Nig Plc. v. Alhaji Salman Maiwada (2012) LPELR-SC.204/2002; Bucknor-Macleen v. Inlaks Ltd. (1980) 8-11 SC 1; Bamgboye v. Olusogo [1996] 4 SCNJ 154; Okulate v. Awosanya [2002] 2 NWLR (pt 246) 530; Rossek v. ACB Ltd. (1993) 8 NWLR (pt 312) 382; Ewete v. Gyang (2003) 6 NWLR (pt 816) 345; Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (pt 109) 250.
The said decision in Ezenwa v. Bestway (supra) was reported in 1999. Before then, a host of Supreme Court decisions had settled this question in favour of the view that the phrase “no suit shall be commenced.” covers all suits and whatever causes of action, Umukoro v. NPA (1997); Barclays Bank v. CCB (1996); Owena Bank of Nig Plc. (1997); Atolagbe v. Awuni (1997); Osagie 11 v Ofor (1998); FCO v. OAU (1998) etc.
In our view, therefore, that remains the interpretation of the said phrase until whenever the apex court decides otherwise. Indeed, no lower court has the authority to nibble at the said reasoning of the final court in the land, Emerah and Sons Ltd v Attorney General Plateau State and Ors (supra); Global Trans Oceanic S.A. v. Free Ent. (Nig) Ltd. (supra). It is only a lower court that wants to incur the wrath of the highest court in the land that could embark on such a course of action, Atolagbe and Anor v. Awuni and Ors (1997) 8 NWLR (pt 522) 536, 567; Dalhatu v. Tafida [2003] 15 NWLR (pt 843) 310, 336.
The simple answer to this issue, therefore, is that the decision in Ezenwo (supra) must kowtow to the unmistakable posture of the apex court on the interpretation of the phrase “no suit shall be commenced…” as embracing all causes of action, FCA Ltd. v. OAU (1993) 5 NWLR 171; Mobil Nig. Unltd v. LASEPA (2003) 5 WRN 1; Amadi v. NNPC (2000) 5 WRN 47; NNPC v. Farlin (1998) 7 NWLR (pt 559) 598; Umukoro v. NPA (1997) 4 NWLR (pt 502) 656; Katina Native Authority v. Makin Dawa (1971) 1 NWLR 100 Atolagbe v. Awuni (1997) 7 SCNJ 4; Anambra State Government v. Nwankwo (1995) 9 NWLR (pt.418) 247; NPC Nig Cement Corporation Ltd v. NRC (1992) NWLR (pt 220) 747. We, therefore, resolve this issue in favour of the appellant.
Having resolved the three issues in favour of the appellant, we have no hesitation in allowing this appeal. Appeal allowed. We hereby enter an order setting aside the said injunctive order of Abang J which His Lordship made on November 28, 2011. Costs assessed and fixed at N30, 000 in favour of the appellant against the first and second respondents.

CHINWE EUGENIA IYIZOBA J.C.A.: I had the privilege of reading before now the lead judgment prepared by my learned brother C. C. NWEZE JCA. I agree entirely with his reasoning and conclusions. There are well recognized conditions for grant of injunction pending appeal just as in grant of stay of execution some of which are:
1. The grounds of appeal must raise substantial legal issues in an area of law that is novel or recondite.
2. The application must disclose special circumstances why the judgment should be stayed,
3. The application must disclose why matters should be put in status quo or preserve the res so as not to render the appeal nugatory.
See Shell Pretroleum Development Company of Nigeria Ltd. v. Amadi & Ors and the numerous authorities cited in the lead judgment. None of these conditions was satisfied in this case. I agree with learned brother that the exercise of discretion by the learned trial judge in granting the injunction was neither judicial nor judicious. The appeal consequently has merit and should be allowed. I too hereby allow the appeal. I abide by the consequential orders in the lead judgment.

FATIMA OMORO AKINBAMI, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother, NWEZE, JCA, and I agree with his reasoning and conclusion. He has dealt with all the issues, and issues, and I have nothing useful to add except to say that for a court to declare whether or not to grant an injunction pending appeal, it has, as of legal necessity to go into a consideration of the compelling legal right of the parties to the protection of the injunctive relief. It is a duty placed on an applicant seeking injunction pending appeal to establish by evidence in affidavits the right he seeks to protect by the order which of necessity makes it mandatory for the court to go into the facts to determine whether such entitlement has been established.
I also allow this appeal, and set aside the injunctive order of Abang J. made on the 28th of November, 2011. I abide by the consequential order in the lead judgment including the order as to costs.

Appearances

Emeka Ngige, SAN, with Obiora Atuegwu Egwuatu and K. OjukwuFor Appellant

AND

V. O. OgudeFor Respondent