AKADAMAZIA SCIENTIFIC COMPANY LIMITED v. NIGERIAN POSTAL SERVICE & ANOR
(2018)LCN/12009(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 24th day of July, 2018
CA/L/1357/2016
RATIO
DAMAGES: WHETHER DAMAGES CAN BE USED TO COMPENSATE
“Another area of dispute is with respect to whether damages will be adequate to compensate the Appellant for injury or damages occasioned by the alleged wrongful conduct of the Respondents. It is appropriate to state that the Appellant stated at paragraphs 77 to78 of its Affidavit in Support that damages will not be adequate to compensate it for the loss that will occasion from the purported wrongful termination of the lease by the Respondents. This deposition was challenged by the Respondents in the 1st Respondent Further Counter Affidavit at paragraph 5 (xii) wherein it was stated that damages shall be enough compensation where the substantive suit is decided against them. Let us hear what the learned trial Judge said on this issue at pages 527 to 528 of the record of appeal, he said as follows: ‘I am also of the view that damages will be adequate compensation for the Plaintiff/Applicant if at the end of the trial, the Court finds that it ought to have granted the injunction and the Applicant has suffered inconvenience and damages. The law is that if upon deep consideration of the facts damages will be adequate remedy for the Plaintiff and the Defendant would be in a financial position to pay, the Court should not decree an interlocutory injunction, even if the Plaintiff’s claim is shown to be strong at that stage. See AYORINDE Vs. A.G. OYO (supra); ARABA Vs. ELEGBA (1986) 1 NWLR (Pt.16) 33; and OGBONNAYA Vs. ADAPALM (NIG.) LTD (1993) 5 NWLR (Pt.292) 147. Plaintiff/Applicant in its Statement of Claim, particularly Reliefs 15(i) – (vii) and 16 thereat had quantified the amount of money due to them. Again the law is that if the Applicant for an interlocutory injunction has quantified in his main claim all monies due to him, he is tacitly admitting that damages will adequately compensate him should he succeed at the trial, thereby disqualifying himself from the remedy of interlocutory injunction. See ADESINA Vs. AROWOLO (2005) ALL FLWR (pt.245) 1123.'” PER TIJJANI ABUBAKAR, J.C.A.
JURISDICTION: WHETHER THE QUESTION OF JURISDICTION IS FUNDAMENTAL
“The question of jurisdiction is so fundamental in every form of adjudication, since without it, any proceedings no matter how well conducted, becomes a nullity. See A-G, KWARA STATE & ANOR Vs. ADEYEMO & ORS (2016) LPELR 41147 (SC) and DINGYADI & ANOR Vs. INEC (2011) LPELR – 950 (SC). In OZURUMBA NSIRIM Vs. DR. SAMUEL AMADI (2016) LPELR – 26053 (SC), the Supreme Court, per NGWUTA, JSC held inter alia that Jurisdiction in its strict sense is the limits which is imposed upon the power of a validly constituted Court to hear and determine issues properly brought before it by due process by reference to: (1) the subject matter in issue; (2) persons between whom the issue is joined, and (3) the kind of relief sought.” PER TIJJANI ABUBAKAR, J.C.A.
JUSTICES
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
AKADAMAZIA SCIENTIFIC
COMPANY LTD Appellant(s)
AND
1. NIGERIAN POSTAL SERVICE
2. THE MINISTER OF COMMUNICATION TECHNOLOGY Respondent(s)
TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment):
This appeal is against the Ruling of the Federal High Court, Lagos delivered by Dagat, J., on the 22nd day of November, 2016, wherein the learned trial Judge dismissed the Respondents’ Preliminary Objection challenging the jurisdiction of the Court and as well refused the Appellant’s application for interlocutory Injunction.
The Appellant in this appeal commenced action against the Respondents at the Court below, seeking inter alia a declaration that the Final demand notice of termination, of the sub-Lease Agreement dated 30th April, 1993 (“the sub-Lease Agreement?) and the supplementary Agreement dated 1st November, 2006 (?Supplementary Agreement”), dated 6th November, 2013, in respect of the property lying and situate at Bourdillon Road, Ikoyi Lagos State (“the demised premises”), issued by the 1st Defendant in furtherance of its statutory, executive and administrative powers, is invalid, premature, lacks legal basis, null and void and of no effect and that Respondents are not entitled to re-enter or take any executive or administrative action to re-enter and/or eject the plaintiff from the demised premises without recourse to due process of law. Consequently, the Appellant filed an application for interlocutory injunction on 13th August, 2014 (at pages 228 to 317 of the records of Appeal) to restrain the Respondent from re-entering or carrying out threatened act of imminent breach of the Appellant’s rights pending the determination of the suit. While opposing the Application for injunction, the Respondents also filed a preliminary objection found at pages 449 to 463 of the records of appeal challenging the competence of the suit; consequent upon which the learned trial judge directed that the Preliminary objection be entertained and determined along with the Motion for Interlocutory Injunction in line with the settled position of the law.
In his Ruling, the learned trial judge dismissed the Respondents, Preliminary objection as lacking in merit and refused the Appellant’s application for interlocutory injunction on grounds inter alia that damages would be adequate remedy. Being dissatisfied with part of the decision of the Lower Court, the Appellant filed a Notice of Appeal found at pages 529 to 534 of the records of appeal contending that the trial judge erred in refusing its application for injunctive reliefs, having considered and relied on incompetent procession. On the other hand, the Respondents also sought and obtained leave of this Court to file a Cross-Appeal against the decision of the Lower Court to assume jurisdiction to hear and determine the suit. Leave of this Court to file the Notice of Cross-Appeal was heard and granted on 12th July, 2017.
Briefs were filed and exchanged by the parties herein as it affects both the appeal as well as the cross appeal. For emphasis, Appellant through learned counsel Oshobi filed a Brief of Argument dated 24th December, 2016 as well as a Reply/Cross Respondent?s Brief of Argument dated and filed 20th November, 2017 but deemed 24th May, 2018. On the other hand, the Respondents through learned senior counsel Akeredolu SAN filed a Respondents/cross-Appellant? Brief of Argument dated 27th September, 2017 but deemed filed on 23rd October, 2017 coupled with a cross Appellants? Reply Brief dated 8th May, 2018 but filed 9th May, 2018 and deemed 24th May, 2018.
I have carefully gone through the grounds contained in the Notice of Appeal as well as the Notice of cross Appeal; the issues formulated by the respective counsel in respect thereof, and the arguments canvassed thereon; it is evident that while the Appellant in its Brief formulated two issues in respect of the appeal and made submissions on same, the learned counsel for the Respondent also formulated two issues in their Brief of Argument, with the first issue predicated on the cross Appeal while the second issue contains submissions made in response to arguments canvassed by the Appellant in respect of the main appeal. It is useful to mention that the first issue formulated by the Respondents in their brief touches on the decision of the trial Court to assume jurisdiction in the instant suit, the Appellant’s response is contained in its Reply Brief. I am of the view that the situation necessitates that both the Appeal as well as the cross Appeal be considered and determined particularly together, as the sole issue in respect of the cross Appeal relates to the adjudicatory and jurisdictional competence of the lower Court to determine the substantive suit.
A determination of the issue is fundamental to the competence of the Court to entertain and/or pronounce on the other issue(s) raised by the Appellant as per the decision of the Lower Court refusing its application for injunctive relief.
I will first consider the argument canvassed by the respective counsel on the issue as to whether the Lower Court was right to have held that it has the requisite jurisdictional competence to hear and determine the suit.
The submissions of the Respondents/Cross-Appellants on this issue, citing OBIUWEUBI VS. CBN (2011) 7 NWLR (Pt.1247) 465 at 494, paras C – D; NWOSU Vs. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (Pt. 135) 726; OKOROMA VS. UBA (1999) 1 NWLR (Pt.587) 375, paras D – E and DAGAZAU Vs. Bokir INT?L CO. LTD (2011) 14 NWLR (Pt.1267) 261 at 314, paras A, is that jurisdiction, which is given by the Constitution or statute, is the power of a Court to adjudicate in the subject matter and in order to determine whether it has jurisdiction to entertain a suit or not, the Court must have recourse to the plaintiff’s claim. Arguing that the jurisdiction of the Lower Court, the Federal High Court, is derived from Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 7 of the Federal High Court Act, Cap F12, LFN, 2004, and relying on the decisions in IKENNE LOCAL GOVT Vs. W.A.P.C. Plc (2011) 12 NWLR (Pt.1261) 223,paras A – C and TANKO vs. ECHENDU [2011] 18 NWLR (Pt.1224) 253 at 272, paras G, learned counsel submitted that the Lower Court has no jurisdiction to determine issues relating to land or use of land, which the gravamen of the Appellant’s case herein arising from a purported breach of a sub-lease Agreement. Citing N.I.M.R. vs. N.U.R.T.W. (2010) 12 NWLR (Pt.1208) 328 and ONUORAH Vs. KADUNA REFINING & PETROCHEMICAL CO. (2005) 6 NWLR (Pt. 921) 393, he stressed that the Federal High Court has no jurisdiction in matters of simple contract, and the fact that the Respondent is an agency of the Federal Government is irrelevant.
Learned counsel referred to part of the Ruling of the lower Court, before urging the Court to consider paragraphs 4 to 8, 10 to 14 as well as the reliefs sought by the Appellant in its statement of claim’ which he argued shows that the matter presented before the Lower Court for adjudication relates to contract for the sublease of land and the use to which the land should be put, as well as alleged violations of the sublease agreement including but not limited to securing approval from the Lagos state Government for the proper use of the said land. He referred to NLEWEDIM Vs. UDUMA (1995) 6 NWLR (pt. 402) 383 at 401, para’s C – F on the meaning of an agreement for a lease. He also relied on the decisions in ADISA vs. OYINWOLA (2000) 10 NWLR (Pt. 674) 116 and ADETAYO vs. ADEMOLA (2010) 15 NWLR (pt.1215) 169 at 192, para’s C – F to submit that the lower Court has no jurisdiction to entertain the subject matter of the instant suit.
Submitting further, learned counsel referred to Section 251(1)(r) of the Constitution to submit that the contract in issue was signed by and between the Appellant and the 1st Respondent alone; and by Section (1)(1) of the Nigerian Postal Service Act, Cap N127, LFN 2004, the 1st Respondent being a statutory body with its own self regulatory mechanisms cannot be labeled an agency of the Federal Government. He urged that this issue be resolved in favor of the Respondents against the Appellant.
In the Appellant’s/Cross Respondent’s Brief, it was submitted on its behalf that the primary document to be examined to determine the nature of the action and whether the Lower Court has jurisdiction or not is the writ of summons and the statement of Claim, citing Section 251(1) of the Constitution; ONUORAH Vs. KADUNA REFINING & PETROCHEMICAL CO. LTD (Supra); NATIONAL UNION OF ELECTRICITY EMPLOYEES VS. BUREAU OF PUBLIC ENTERPRISES (2010) 7 NWLR (pt. 1194) 538 at 573 and ONWUDIWE vs. FRN (2006) 10 NWLR (Pt. 988) 382 at 428. Referring to the 2nd & 3rd Reliefs sought in the Appellant?s statement of claim, learned counsel submitted that from the totality of the reliefs claimed, it is clear that the Appellant’s claim against the Respondents is an action for declaration and injunction affecting the validity of an executive action or decision by an agency of the Federal Government of Nigeria, thus falling within the purview of Section 251(1) of the Constitution.
Responding to the Cross Appellant’s contention that it is not an agency of the Federal Government, learned counsel contended that the 1st Respondent does not suddenly become independent organization simply because it was established by statute and given distinct corporate personality. Relying on ABSIEC vs. KANU (2013) 13 NWLR (Pt.1370) 69 at 83, para’s F – G and GBILEVE vs. ADDINGI (2014) 16 NWLR (Pt.1433) 394 at 419, paras G – H to further contend that this case comes within the jurisdiction of the lower Court. It was further contended that the case of ONUORAH vs. KADUNA REFINING & PETROCHEMICAL CO. LTD. (supra) does not apply because the action that was challenged in that case unlike this case did not involve the administration or management or control of the Federal Government or its agencies.
In the Cross-Appellant’s Reply, learned counsel cited DANGARA Vs. USMAN (2013) 6 NWLR (Pt. 1349) 87, paras A – B, to submit that courts are creations of statutes. He contended that Sections 39 and 41, of the 1978 Land Use Act expressly vest jurisdiction in the (i) High Court (ii) Area Court or; (iii) Customary Court, as the case may be in land matter. That the reliefs sought by the Appellant are within the purview of Section 39 of the Land Use Act, and consequently within the jurisdiction of the State High Court, relying on SADIKWU Vs. DABIRI (1995) 5 NWLR (Pt. 447) 151; THE GOVT OF KWARA STATE & ORS Vs. IREPODUN BLOCK MANUFACTURING CO. & ORS (2012) LPELR – 8532 (CA) and ADETAYO Vs. ADEMOLA (Supra).
It was further contended by learned counsel that the fact that one of the Respondents/Cross-Appellants is a federal government agency cannot extend the jurisdiction of the Federal High Court to entertain and grant the reliefs of the Appellant/Cross Respondent. Also that it is the Plaintiff’s claim as stated in its Statement of Claim, and not the nature of the parties, that determines the jurisdiction of the Court, citing DAGAZAU Vs. BOKIR INT’L CO LTD (2011) 14 NWLR (Pt. 1267) 261 at 337; MUSACONI LTD Vs. ASPINALL (2013) 14 NWLR (Pt.1375) 455 at 460; ELDER SUNDAY OMOTESHO (REGENT) & 9 ORS Vs. ALHAJI ABUBAKAR ABDULLAHI & ORS (2008) 2 NWLR (Pt.1072) 526 and GOLDMARK (NIG.) LTD Vs. IBAFON CO. LIMITED (2012) 10 NWLR (Pt.1308) 291 335.
RESOLUTION OF CROSS-APPEAL ON JURISDICTION
It is generally accepted that jurisdiction is the legal authority or power given to a judge or a Court to adjudicate over the matter before him.
It is important to observe that the limits of the authority are, by practice, imposed by Statute or Law under which the said Court is constituted. See SARAKI Vs. FRN (2016) LPELR – 40013 (SC) where it was held as follows:
“The meaning of the word jurisdiction has been accepted as the authority which a Court or Tribunal has to decide matters presented in a formal way for its decision. Where a Court does not have jurisdiction, there is nothing before it to adjudicate. The limits of its authority as in the present case may be prescribed, as it has been prescribed by Statute under which the Court or Tribunal was credited. Concisely stated, jurisdiction means the authority which a Court or Tribunal has to decide matters contested before it or to take cognizance of matters presented in a formal way for its decision as stated by this Court in NATIONAL BANK v. SHOYOYE (1975) 2 SC. 187. To put in another way, a Court or Tribunal can only adjudicate on a controversy between litigants before it when it has jurisdiction to do so.”
See also OBASANJO & ORS Vs. YUSUF & ANOR [2004] LPELR – 2151 (SC) and MUSACONI LIMITED Vs. ASPINALL (2013) LPELR – 20745 (SC).
The question of jurisdiction is so fundamental in every form of adjudication, since without it, any proceedings no matter how well conducted, becomes a nullity. See A-G, KWARA STATE & ANOR Vs. ADEYEMO & ORS (2016) LPELR 41147 (SC) and DINGYADI & ANOR Vs. INEC (2011) LPELR – 950 (SC). In OZURUMBA NSIRIM Vs. DR. SAMUEL AMADI (2016) LPELR – 26053 (SC), the Supreme Court, per NGWUTA, JSC held inter alia that Jurisdiction in its strict sense is the limits which is imposed upon the power of a validly constituted Court to hear and determine issues properly brought before it by due process by reference to: (1) the subject matter in issue; (2) persons between whom the issue is joined, and (3) the kind of relief sought.
Here, it is contention of the Respondents/Cross-Appellants, which was vehemently opposed by the Appellant/Cross-Respondent, that since the Appellant’s claim relates to contract for the sublease of land, the Federal High Court is bereft of jurisdiction. On the other hand, the Appellant argues that in the case which is the subject matter of this appeal, the Appellant seeks to challenge the executive or administrative action of a Federal Government agency, referring to Section 251(1)(p) & (r) of the 1999 Constitution, which reads:
“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters:
(a)…
(p) the administration or the management and control of the Federal Government and any of its agencies.
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”
It is the interpretation of the above provision of the Constitution, that calls for decision in the action filed by the Appellant at the Court below. The authorities are clear on the scope and extent of the jurisdiction of the Federal High Court, particularly as it relates to the matter before the Court. Without any doubt, the provisions of Section 251(1)(p) & (r) seem to me plain, clear and admit of no ambiguity whatsoever.
In the circumstance therefore, the plain, manifest and expressed meaning of the provisions of Section 251(1)(p) & (r) of the Constitution is that the Federal High Court has exclusive jurisdiction over any action or proceeding for declaration or injunction affecting the validity of any executive or administrative action or decision as it relates to administration or the management and control of the Federal Government and any of its agencies. It must be beyond dispute that before the Federal High Court can exercise jurisdiction over any cause or matter under the above-referenced provision the declaratory or injunctive reliefs must be sought in relation to the validity of any administrative or executive action and/or where the administration or control of the Federal Government or any of its agencies are in question.
It appears plain to me that the provisions of Section 251(1)(P)&(r) are applicable to situations where declaration or injunction is sought in relation to executive or administrative acts carried out by the Federal Government or any of its agencies. In OLORUNTOBA-OJU & ORS Vs. ABDUL-RAHEEM & ORS (2009) 13 NWLR (Pt.1157) 83 at 126 to 127, para’s F – C, the Supreme Court, per ADEKEYE, JSC expounded the view on this point in the following words:
“The community reading of the foregoing provisions reproduced above is that the Federal High Court is vested with the power to enter into adjudication of any action or proceeding seeking declaratory or injunctive reliefs which is the fulcrum of the cause of action of the appellants,
Section 251(1) creates a situation whereupon by party jurisdiction – one of the parties must be a Federal Government Agency and by subject-matter jurisdiction it must be an action or proceedings for a declaration or injunction affecting the validity of any administrative action or decision by the Federal government or any of its agencies….”
The pertinent question to ask is: does the Appellant’s suit come within the purview of matters exclusively reserved for the Federal High Court in Section 251(1) (p) & (r) as claimed by the Appellant/Cross-Respondent’s counsel? As I have already stated, the jurisdiction of a Court is determined by the Plaintiff’s writ of Summons and Statement of Claim. For ease of reference, and from the reliefs sought by the Appellant in its statement of claim, the Appellant is challenging the executive or administrative action taken by the Respondent towards voiding, undermining, compromising and/or invalidating the obligations it owed to the Appellant.
The totality of the averments contained in the statement of claim shows that the gist of the Appellant’s complaint against the Respondents is that the Respondents’ conduct through its administrative and executive actions are inconsistent with the exercise and enjoyment of the Appellant’s right, amounting to a breach of the lease, sub-Lease and Supplementary Agreements by the Respondents. The conduct of the Respondents and incessant threats towards frustrating the terms of the agreement and the eventual threat to take administrative and executive actions to determine the agreements prompted the claim for a declaration and injunction against the Respondents by the Appellant.
I think I ought to mention that even though the learned trial judge considered the relevant provisions of the Constitution as well as the decisions of the Supreme Court and this court in OLORUNTOBA-OJU and OLADIPO (Supra), the learned trial judge rightly in my opinion held the view that “irrespective of the fact that the Sub-Lease agreement is a contract and relates to land, what is being challenged is the executive and administrative action of the Defendants/Applicants in issuing a Final Demand Notice in a bid to terminate the Sub-Lease Agreement.” See page 515 of the records of appeal. I agree with the learned trial judge that the Federal High Court is vested with jurisdictional competence to hear and determine the claim as presently constituted filed at the Court below by the Appellant/Cross Respondent in this appeal. I am also of the view that the Lower Court has jurisdiction as rightly held by the learned trial Judge. This issue is resolved in favor of the Cross/Respondent against the Cross/Appellants.
THE SUBSTANTIVE APPEAL
The next issue to be considered is as rightly summed up by the Respondents, to wit, whether the Lower Court was right to have dismissed the Appellant’s application for interlocutory injunction?
Submitting on this issue, the learned Senior Counsel for the Appellant submitted that though the grant of injunction is a judicial act at the discretion of the Court, the Lower Court while refusing the application on non-existent ground that damages were adequate remedies and that the Appellant’s legal rights were less than those of the 1st Respondent, also relied on a process that had been withdrawn and struck out. Noting that the Respondents withdrew their Counter-Affidavit and written Address dated 20th November, 2015, hence struck out, counsel submitted that the Court cannot consider such process in arriving at its decision, citing YAHAYA Vs. CHUKWURA (2002) 3 NWLR (Pt.753) 20 at 35, para D; OHAKIM Vs. AGBASO (2010) 19 NWLR (Pt.1226) 172 at 266 and SIJUADE Vs. OYEWOLE (2012) 11 NWLR (Pt.1311) 280 at 311, paras F – G.
Learned Counsel referred to several pages of the Ruling where the Lower Court purportedly made reference to arguments which he alleged are contained in the Written Address filed on 20th November, 2015, which had already been withdrawn. Counsel said though the Respondents made similar contentions in their Further Written Address filed on 10th March, 2016 (at pages 438 to 448 of the record of appeal) this process was also declared incompetent by the Lower Court and therefore discountenanced.
Learned Counsel argued that the consequence of the withdrawal and striking out of the Respondents’ Counter Affidavit and Written Address dated 20th November, 2015 and the Further Written Address dated 10th March, 2016 is that the Respondents did not join issues with the Appellant on the existence of a legal right and the facts of damages not being adequate remedy for the Appellant. It was further contended by learned counsel that the counter-affidavit and written address deposed to on 30th September, 2014 were filed outside the seven days period under the rules of the Court below, since they were filed without the requisite leave of Court they are incompetent and therefore liable to be struck out, relying on the decision in AVIGENT LTD Vs. BALSTRAVS INVESTMENT LTD (1996) 1 ALL ER 450; AHAM Vs. OKOLI (1977) 3 SC 112; ADELEKAN Vs. ECULINE NV (2005) 5 SC (PT 11) 48 and AUTO IMPORT EXPORT Vs. ADEBAYO [2002] 18 NWLR (Pt. 799) 554 at 585, paras E – F.
It was further submitted by learned counsel that even if this Court is magnanimous to allow the Respondents rely on the process filed out of time, the Respondents already conceded that the Appellant possesses a legal right, in which case the Court below ought to have granted the injunctive reliefs, citing AJOMALE Vs. YADUAT (No.2) (2003) FWLR (Pt. 182) 1913 at 1925 and OGAR Vs. JAMES (2001) 10 NWLR (Pt. 722) 621 at 639 to argue that uncontroverted facts in its affidavit are deemed admitted and need no further proof.
Learned Counsel referred to the decision in KOTOYE Vs. CBN (1989) 1 NWLR (Pt. 98) 419 at 440, para’s C – D and AZUH Vs. UBN PLC (2014) LPELR -22913 (SC) on the power and discretion of a Court to grant an application for interlocutory injunction, which he said, must be exercised judicially and judiciously. Relying on the decisions in OBEYA MEMORIAL HOSPITAL LTD Vs. A-G., FEDERATION (1987) 3 NWLR (Pt. 60) 325 at 345, para G (SC); KOTOYE Vs. CBN (Supra) and BUHARI Vs. OBASANJO (2003) 17 NWLR (Pt. 850) 587 at 652, paras A – D, counsel enumerated the materials that an Applicant must place before the Court to be granted interlocutory injunction. He noted that the central reason behind the grant of an injunction is to keep the parties in status quo and preserve the res in an action pending the determination of the substantive suit, citing AZUH Vs. UBN PLC (Supra).
It was further submitted by learned counsel that despite satisfying the relevant conditions, the Lower Court disregarded the Appellant’s contentions and uncontroverted depositions in its affidavit and refused to grant the injunctive reliefs sought. Relying on A-G., LAGOS STATE Vs. A-G., FEDERATION (2004) 18 NWLR (Pt. 904) 97 to 98, para’s G – B, counsel noted that the Appellant was able to show that it had a substantial legal right in the res of the matter, and that the question is not whether the Appellant has a lesser right compared to the Respondents’ as erroneously held by the trial Court. Referring to several declaratory reliefs sought by its Statement of Claim, Appellant submitted that pecuniary damages cannot compensate it for the injury or damage that will be occasioned if the Respondent proceeds to terminate the Sub-Lease Agreements and no amount of damages would assuage the loss that will ultimately be suffered by the Appellant. Learned counsel concluded by submitting that having regards to the fact that the trial Court did not consider the relevant facts before it, it cannot be said that the Court determined the issue of damages being adequate remedy, judicially and judiciously. Citing OBEYA MEMORIAL HOSPITAL LIMITED Vs. AG., FEDERATION (Supra) and ABDULLAH Vs. GOVERNOR OF LAGOS STATE (1989) 1 NWLR (Pt. 97) 356 at 359, paras A – B, Counsel urged this Court to hold that the Lower Court erred in law in refusing the Appellant’s motion for interlocutory injunction, and urged that the issue be resolved in favor of the Appellant.
On the part of the Respondents/cross Appellants, it was submitted that it cannot be the law that injunctive reliefs are to be granted to every applicant who establishes a legal right without more; but that an Applicant who establishes a legal right but who can be compensated in damages will not be granted such relief. It was the submission of Learned Counsel that the important consideration is whether damages will be adequate compensation for the claims of the applicant if he eventually succeeds on his claim, relying on AMERICAN CYANAMID Vs. ETHICON LIMITED (1975) AC 396. Referring to reliefs 15 and 16 in the Appellant’s Statement of Claim, learned Counsel for the Respondents submitted that the Appellant had been able to calculate with mathematical precision, the amount of money that is allegedly due to it, and by law, injunction will not be granted in this case as it is only granted to protect incalculable or irreparable damage. It was argued by counsel that the Appellant’s assertion in its brief of Argument that damages cannot compensate it for the injury it would suffer are facts that should be contained in the Appellant’s supporting Affidavit and not for counsel to make in the pages of Brief of Argument; learned Counsel therefore urged this Court to discountenance the submissions of learned Counsel for the Appellant.
Counsel emphasized that though the Respondent withdrew the processes (Counter Affidavit and Written Address) dated 20th November, 2015, and that the Lower Court declared the Written Address dated 10th March, 2016 to be incompetent and would be discountenanced for failure to obtain leave to file the additional address, the record shows that the Lower Court recognized that Order 26 Rule 27 of the Federal High Court Rules allows an additional affidavit to be used; so the Lower Court rightly took cognizance of the Further Counter Affidavit dated 10th March, 2016 filed by the Respondents.
Learned Counsel therefore argued that it cannot be correct to say that the Court relied on the Respondent’s processes, which had been withdrawn and struck out in coming to its decision. Counsel urged that the Appellant’s appeal be dismissed.
In the Appellant’s Reply Brief, I observed that the arguments canvassed therein are substantially a repetition of the submissions made in the Appellant’s Brief of Argument, save for additional authorities referred to therein. I think I ought to stress that a Reply Brief is not meant to be a repetition of the arguments in the Appellant’s Brief. Its function is to deal with new point raised in the Respondent’s Brief and not to re-argue the appeal or re-emphasize the arguments earlier made by the Appellant in his Brief of Argument. See ABDULLAHI Vs. MILITARY ADMINISTRATOR & ORS (2009) LPELR – 27 (SC); BASINCO MOTORS Vs. WOERMANN-LINE & ANOR (2009) LPELR – 756 (SC) and YANATY PETROCHEMICAL LTD Vs. EFCC (2017) LPELR – 43473 (SC). It is therefore needless in the instant appeal. Same also applies to the arguments canvassed by the Respondents/Cross-Appellant’s Brief in response to submissions made in the Appellant’s Reply, particularly as touching the present issue regarding the substantive appeal. It is strange and unusual for a Cross Appellant in its Cross-Appellant’s Reply Brief to make submissions in response to those made by the Appellant in its Reply Brief. This was done by the Respondents/Cross Appellants in this appeal, this practice is incongruous, it is therefore discountenanced.
RESOLUTION
It is important to observe that in response to the Appellant’s motion for Interlocutory Injunction, the Respondents filed a 19-paragraph Counter Affidavit & Written Address dated 24th September, 2014 but filed on 30th September, 2014 (at pages 318 to 326 of the records of appeal). Thereafter, the Respondents also filed another 5-paragraph Counter-Affidavit & Written Address dated 20th November, 2015 found at pages 376 to 393 of the records of appeal. Another Further Counter Affidavit and Further Written Address was filed on the 10th day of March, 2016 found at pages 421 to 449 of the records of appeal).
By the undisputed facts on record, the Counter Affidavit of 20th November, 2015 was withdrawn by Learned Counsel for the Respondents, Abimbola Akeredolu, SAN, during the proceedings of 13th April, 2016 and same was accordingly struck out by the Lower Court, See page 487 of the record of appeal. It is however the contention of learned Counsel for the Appellant that the Court relied on incompetent process in arriving at its decision. At pages 520 and 522 of the records of appeal, the learned trial Judge observed as follows:
“In opposition, the Defendants/Respondents filed a 5 paragraph Counter affidavit and written address all filed on 20th September, 2014. Respondent also filed a further counter affidavit dated 10th March, 2016 with some exhibits…
On the preliminary point raised by the Applicant that the further written address filed by the Respondent should be struck out, the Rules of this Court Particularly Order 26 Rule 5 gives the Respondent who has been served with a Motion the right to file written address in reply and a counter affidavit if he so wishes. Even though by Rule 27 of the same Order 26, the Court may allow an additional affidavit to be used, there is no corresponding provision allowing for additional written address by the Respondent.
There is nothing before the Court to show that leave was obtained to file the additional address. Even though the further written address of 10th March, 2016 is substantially the same as the Respondents address earlier field, the said address of 10th March, 2016 is incompetent and will be discountenanced.”
It is clear from the above extract from the Ruling which was delivered by the learned trial judge that the Further Written Address filed out of time and without leave of the court were declared incompetent and struck out. However, it will appear that the learned trial judge had by his reference to Order 26 Rule 27 of the Lower Court’s Rule countenanced the Counter Affidavit filed alongside the Written Address of 10th March, 2016, which was declared incompetent. Apparently, from the arguments canvassed by the Learned counsel for the Appellant particularly at paragraphs 4.11 to 4.19, there seems to be no objection to the competence or otherwise of the Further Counter Affidavit filed by the Respondents on 10th March, 2016. The Appellant contended at paragraph 4.18 that the Counter Affidavit and Written Address deposed to on 30th September, 2014 were filed outside the seven days period under the Rules of Court.
I must say that there is nothing on record showing that the counter affidavit referred to was filed out of time, because there are no facts on record showing when the particular processes were served on the Respondents to justify reaching firm conclusion that same was filed out of time. Although the Appellant had argued that the Respondents filed a motion to regularize these processes but same was never taken, this allegation is unsubstantiated as it is not on record that the motion was filed neither was it indicated in the proceedings of the Court wherein the Appellant’s Application was moved. See the proceedings of the Lower Court of 13th April, 2016 at pages 486 to 496 of the records of appeal.
Learned Counsel for the Appellant also complained on the reference by the Learned trial Judge to ?a 5 paragraph Counter affidavit and written address all filed on 20th September, 2014? purportedly filed by the Respondents even though from the records before us, there was no affidavit or process filed on that date. I have the benefit of reading through the relevant processes in the records as well as the Ruling of the trial Court, and I have no hesitation in accepting the contention of learned Counsel for the Appellant that the learned trial judge relied on incompetent processes filed by the Respondents. The learned trial judge in his Ruling had patently placed heavy reliance on Respondents’ counter Affidavit and written Address dated 20th November, 2015 (stated incorrectly by the trial judge to be dated 20th September, 2014) which were withdrawn by the Respondents and struck out by the learned trial judge on the 13th day of April, 2016.
It is important to mention that the only competent Written Address filed by the Respondents and properly before the Court is the one dated 24th September, 2014. See pages 321 to 326 of the records of appeal. The trial Court without doubt relied on an incompetent Written Address; thus begging the question as to whether the decision of the Court refusing to grant the Appellant the injunctive relief(s) sought should be set aside as a result of the foregoing? I think I must mention that, there are two competent Counter Affidavits properly before the Court; the first is the Counter Affidavit deposed to by one Peter Iyobhebhe, dated and filed 30th September, 2014 at pages 318 to 320 of the records of appeal; and the second being the Further Counter Affidavit deposed to by one Douglas Atagana dated 10th March, 2016 at pages to 427 of the records of appeal.
Both Learned Counsel for the respective parties in this appeal are in agreement that the power to grant an order of interim or interlocutory injunction is an inherent power, which is exercisable in favour of an Applicant at the discretion of the Court, even though the authorities are settled that the discretion must be exercised judicially and judiciously. Learned Counsel for the Appellant in the instant appeal has done well by enumerating the conditions that must be satisfied by an Applicant in application for interlocutory injunction. As stated by learned Counsel for the Appellant guided by settled judicial authorities, an Applicant seeking for an order of interlocutory injunction must show: (1) that he has a legal right to be protected; (2) that the legal right is being threatened or is in danger of being infringed by the Respondent; (3) that there is a substantial issue to be tried; (4) that damages cannot be an adequate compensation for his injury if he succeeds at the end of the day; (5) that the balance of convenience is on his side; (6) that his conduct is not reprehensible; (7) that he undertakes to pay damages. See KOTOYE Vs. CBN (Supra) and OBEYA MEMORIAL HOSPITAL LTD Vs. AG., FEDERATION (Supra).
I have carefully gone through the Affidavit in Support of the Applicant’s Application deposed to by one Ndudi Okpaleke dated 13th August, 2014 found at pages 232 to 249 of the records of appeal coupled with the Further Affidavit at pages 407 to 411 of the records of appeal as well as the Respondents’ Counter Affidavit of 30th September, 2014 and Further Counter-Affidavit dated 10th March 2016; it seems clear to me that the fact that the Appellant has legal right is not in dispute. As a matter of fact, the 1st Respondent by paragraph 7 of its Counter Affidavit specifically admitted that the Appellant had a legal right, even though it was stated therein that same was not under any threat. The law is that facts admitted require no further proof. See DIN Vs. AFRICAN NEWSPAPERS OF NIG. LTD (1990) LPELR – 947 SC; APC Vs. INEC & ORS (2014) LPELR – 24036 (SC) and ALAHASSAN & ANOR Vs. ISHAKU & ORS (2016) LPELR – 40083 (SC). It is also important to observe that the relevant question herein is not whether the Respondents’ legal right in this case ranks higher than that of the Appellant, rather, it is enough that the Appellant as Applicant is able to show that he has a legal right.
The learned trial Judge was therefore in error when he appears to reason at pages 526 to 527 of the records that since the Appellant’s right on the property cannot be stronger than that of the 1st Respondent, the pendulum should tilt towards the 1st Respondent.
Another area of dispute is with respect to whether damages will be adequate to compensate the Appellant for injury or damages occasioned by the alleged wrongful conduct of the Respondents. It is appropriate to state that the Appellant stated at paragraphs 77 to78 of its Affidavit in Support that damages will not be adequate to compensate it for the loss that will occasion from the purported wrongful termination of the lease by the Respondents. This deposition was challenged by the Respondents in the 1st Respondent Further Counter Affidavit at paragraph 5 (xii) wherein it was stated that damages shall be enough compensation where the substantive suit is decided against them. Let us hear what the learned trial Judge said on this issue at pages 527 to 528 of the record of appeal, he said as follows:
”I am also of the view that damages will be adequate compensation for the Plaintiff/Applicant if at the end of the trial, the Court finds that it ought to have granted the injunction and the Applicant has suffered inconvenience and damages. The law is that if upon deep consideration of the facts damages will be adequate remedy for the Plaintiff and the Defendant would be in a financial position to pay, the Court should not decree an interlocutory injunction, even if the Plaintiff’s claim is shown to be strong at that stage. See AYORINDE Vs. A.G. OYO (supra); ARABA Vs. ELEGBA (1986) 1 NWLR (Pt.16) 33; and OGBONNAYA Vs. ADAPALM (NIG.) LTD (1993) 5 NWLR (Pt.292) 147.
Plaintiff/Applicant in its Statement of Claim, particularly Reliefs 15(i) – (vii) and 16 thereat had quantified the amount of money due to them. Again the law is that if the Applicant for an interlocutory injunction has quantified in his main claim all monies due to him, he is tacitly admitting that damages will adequately compensate him should he succeed at the trial, thereby disqualifying himself from the remedy of interlocutory injunction. See ADESINA Vs. AROWOLO (2005) ALL FLWR (pt.245) 1123.”
I must say that the learned trial Judge stated correctly the settled position of law that even if it appears that an Applicant has a strong case before the Court, an order of interlocutory injunction will not be made in his favor where it is shown that damages will be adequate remedy for him. See the decision of the Supreme Court in HON. JUSTICE T. A. A. AYORINDE VS. A.G., COMMISSIONER FOR JUSTICE, OYO STATE (1996) LPELR – (SC), where UWAIS, JSC (as he then was) held that:
“Where damages will be adequate remedy and the defendant would be in a financial position to pay the damages, interlocutory injunction will not be granted even if the plaintiff’s case is shown to be strong at the stage of making the application for the grant of the interlocutory injunction. On the other hand, where damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the Court should then consider whether should the defendant succeed at the trial he would be sufficiently compensated under an undertaking to be given by the plaintiff as to damages for the loss the defendant would have sustained by reason of granting of the application for interlocutory injunction.”
Learned Counsel for the Respondents ardently believes the learned trial judge was perfectly right to have towed the line that damages will be adequate compensation for the Appellant, in the event of success.
The law is trite that once a trial Court, as in the instant case, is shown to have exercised its discretion judicially and judiciously, such exercise of discretion must not be disturbed by an Appellate Court for the reason that it would have exercised that discretion differently. See UNILAG & ANOR Vs. AIGORO (1985) LPELR – 3418 (SC); OBASI Vs. MIKSON ESTABLISHMENT INDUSTRIES LTD (2016) LPELR 40704 (SC) and PLANWELL WATERSHED LTD & ANOR Vs. OGALA (2003) LPELR – 2920 (SC).
In matters of this nature, the Court is under a duty to consider the interest of both parties and weigh them before reaching a decision as to whether to grant an order of interlocutory injunction or not.
This is so because the Respondent herein vigorously, vehemently and intensely opposed the Appellant’s application, but one thing clearly stands out, and it is that, from a careful perusal of the conflicting facts deposed by the parties in their respective affidavits, there is no way a Court can reach a valid and justifiable conclusion as to whether the application should be granted or refused, without touching on matters which are at best left for substantive hearing. The authorities are clear on the position of law that Courts must not, at an interlocutory stage, delve into issues that may come up for hearing at the substantive trial. See FSB INTERNATIONAL BANK LTD VS. IMANO NIG. LTD (2000) 11 NWLR (Pt.679) 620 ay 639 and FASHEUN VS. A-G. FEDERATION (2006) 43 WRN 99.
Considering the peculiar facts on record, particularly the depositions contained in the Affidavits filed by the respective parties disclosing the history of the events leading to the commencement of the suit pending at the Lower Court, the length of time taken, the emergence of several frustrating events, flagrant display of executive powers, and the brazen display of lawlessness by hoodlums, all contained in the materials before the trial Court, I must say that the learned trial judge did not correctly advert his mind to relevant facts in the instant case.
Now, in reaching the conclusion that damages will be adequate compensation, it is noteworthy that the learned trial judge merely limited his mind to the 15th and 16th Reliefs sought by the Appellant as per its Statement of Claim; these reliefs, the learned trial judge noted are the main claims of the Appellant. I do not with all due respect agree with the learned trial judge on this point. In the first place, principles of law are not transposed to every case without consideration of the peculiar facts on record before the Court, and if what I can deduct from the facts on record is anything deserving of positive consideration, it is evident that, the Reliefs 15 and 16 are neither the only claims nor the principal or main claims sought by the Appellant, and as rightly pointed out by the Learned Counsel for the Appellant, there are other reliefs out of the 17 reliefs sought by the Appellant which will not be adequately covered by compensation in damages, from the sundry reliefs sought by the Appellant, it is obvious that the Appellant is interested in safeguarding its interest due to it under the Principal Lease as well as the Sub-Lease Agreements, which in my view, may not be adequately quantified and therefore compensated in damages.
The right of the Appellant to insist on the performance by the Respondents of their contractual obligation is one which I believe cannot be assuaged by any amount of damages. Damages in the instant case cannot be mitigated in monetary terms.
To this extent therefore and having regard to the fact that the dispute is already before the Court, it is within the inherent powers of the Court to ensure that the dignity of the Court is preserved, by ensuring that parties do not take any action that has the potentials of promoting inexcusable judicial disrespect, or portend danger by erecting very strong likelihood of foisting a state of helplessness, and rendering the judgment of the Court an empty shell. I am inclined to agree with the learned Counsel for the Appellant that it will be just and appropriate considering the general circumstances of the case to grant an order of injunction restraining the Respondents from taking any step towards interfering with the subject matter until the suit is heard and determined, parties are hereby ordered to maintain status quo ante pending the determination of the substantive suit before the trial Court.
On the whole therefore, Appellant’s Appeal has merit and is hereby allowed by me. For the reasons earlier given in this judgment that the Lower Court has jurisdiction to hear and determine the Appellant’s claim, the Respondents/Cross-Appellants Appeal is unmeritorious and is hereby accordingly dismissed. The Ruling of the Federal High Court, per DAGAT, J., delivered on the 22nd day of November, 2016 whereby the Court assumed jurisdiction in the instant case is hereby affirmed, while the order dismissing the Appellants application for injunction is hereby set aside. Parties are directed to maintain status quo ante until the substantive suit at the Court below is heard and determined.
Considering the length of time taken towards executing the terms of the agreement, it is hereby ordered that the Hon. Chief Judge of the Federal High Court shall ensure that the suit is accorded expedited hearing, so that the rights and obligations of the parties shall be determined expeditiously.
Parties to bear their respective costs.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother TIJJANI ABUBAKAR, J.C.A., just delivered with which I agree and adopt as mine. I have nothing more to add.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the privilege of reading before now, the judgment just delivered by my learned brother, TIJJANI ABUBAKAR, JCA. I agree with the limpid reasons advanced therein to arrive at the inevitable conclusion that not only does the Lower Court, pursuant to Section 251 (1) (p) & (r) of the 1999 Constitution (as amended), possesses the jurisdiction to entertain the present suit bothering on the administrative and/or executive action of the Respondent; the peculiar circumstances and facts of this case shows that it is deserving that status quo ante be maintained by the parties pending the consideration and determination of the substantive suit at the Lower Court.
Thus, having also considered the facts contained in the records of appeal as well as the arguments canvassed in the briefs of argument filed by the learned counsel to the respective parties, I agree with the conclusion reached in the leading judgment that there is merit in the instant appeal. I abide by the consequential order(s) made in the leading judgment.
Appearances:
B. O. Babalakin SAN with him, O. A. Uka, B. Ajayi and I. IbikunleFor Appellant(s)
A. Akeredolu SAN, with him, C. AkunanyaFor Respondent(s)
