AL-HAFS INVESTMENT LIMITED v. RAILWAY PROPERTY COMPANY LIMITED & ANOR
(2015)LCN/7957(CA)
In The Court of Appeal of Nigeria
On Monday, the 13th day of July, 2015
CA/L/358/2001
RATIO
COURT: COURT’S DISCRETION; WHETHER THE GRANT OR REFUSAL OF AN INTERLOCUTORY APPLICATION IS A DISCRETIONARY POWER OF THE COURT AND THE MEANING OF JUDICIAL DISCRETION
The grant or refusal of an interlocutory application is a discretionary power of the Court, which right the Court has to exercise judicially and judiciously. Judicial discretion is a term applied to the discretionary action of a Judge or Court and means discretion bounded by the rules and principles of Law and not arbitrary, capricious or unrestrained. It is a legal discretion to be exercised in discerning the course prescribed by Law and is not to give way to the will of the Judge, but to that of Law. See Mohammed vs. C.O.P (1999) 12 NWLR pt 630 pg.331.
A judicial discretion means that Courts are to act according to the rules of reason and justice, not according to private opinion; and according to Law not humour. In Re Alase (2002) 16 NWLR pt. 776 pg. 553, Union Bank of Nigeria Plc. vs. Adjarho (1997) 6 NWLR Pt.507 pg.112. per. UZO I. NDUKWE-ANYANWU, J.C.A.
COURT: COURT’S DISCRETION; THE EFFECT OF THE FAILURE OF THE COURT TO EXERCISE ITS DISCRETION JUDICIALLY AND JUDICIOUSLY
A Court’s exercise of its discretion without averting to all the peculiar facts and circumstance of the particular case before it, is as bad as its exercise upon a wrong principle. Also, if there is any miscarriage of justice in the exercise of a judicial discretion, it is within the competence of an Appellate Court to have it reviewed. See Oduba vs. Houtmangracht (1997) 6 NWLR pt.508 pg.185. Where a Court has exercised its discretion judicially and judiciously, the Appellate Court will not interfere. However, where the exercise of discretion tends to do injustice to one of the parties, the Appeal Court must employ its judicial sledge hammer to salvage the situation. See Guda vs. Kitta (1999) 12 NWLR Pt.629 pg.21, Imani and Sons Ltd. vs. Bil Construction Co. Ltd. (1999) 12 NWLR Pt.630 pg.254, Mohammed vs. C.O.P (1999) 12 NWLR Pt.630 pg 331, Ehidimhen vs. Musa (2000) 4 SC Pt.II Pg, 166, Oyekanmi vs. NEPA (2000) 12 SC Pt.1 Pg.70, Biocon Agro Chemicals vs. Kudu Holding (2000) 12 SC Pt.1 pg.139, Likita vs. C.O.P. (2002) 11 NWLR Pt.777 Pg.145. per. UZO I. NDUKWE-ANYANWU, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
AL-HAFS INVESTMENT LIMITED Appellant(s)
AND
1. RAILWAY PROPERTY COMPANY LIMITED
2. AREWA LINE TRANSPORT COMPANY Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Lagos State delivered on 4th of July, 2001 by Hon. Justice Jinadu.
The facts briefly stated are as follows:
The Plaintiff, now Appellant, was granted a lease of part of the premises in respect of Nigerian Railway Corporation at Iddo Terminus, Lagos. Sometime in 1998, the 1st Respondent to whom the Management of the said property was transferred took steps to terminate the Appellant’s lease. The Appellant later discovered that the said premises had been transferred to the 2nd Respondent. Hence the Appellant commenced this suit by a Writ of Summons claiming the following reliefs:
“1. A declaration that the purported termination by the 2nd Defendant of the Tenancy Agreement dated 7th of February, 1992 by letter Ref: E/1578 Vol. 1/54 dated 9th of February, 1998 is invalid and ineffectual for that purpose.
2. A declaration that on the true construction of the said Agreement and in the events which have happened, the plaintiff holds a tenancy of the said premises.
3. An injunction to restrain the Defendants by themselves, their servants, agents and otherwise howsoever from entering upon the said premises other than as stipulated by agreement dated 7th of February, 1992 between the Plaintiff and the 1st Defendant. Or in the alternative to (3) above.
4. An order directing an inquiry into the damages suffered by the Plaintiff as a result of the unlawful termination of the said Agreement of 7th of February, 1992 and
5. An order directing the 1st and 2nd Defendants to pay to the Plaintiff such sum as may be found due to them as a result of the said inquiry.”
The Appellant equally applied for injunctive reliefs by a motion ex-parte along with a motion on notice. The trial Court upon hearing of the motion ex-parte made the following order:
“Pending the hearing of that application (i.e. Motion on Notice) the parties should maintain the status quo on it bellum (sic) and the plaintiff should not be dispossessed of the property until this court otherwise orders.”
It is the contention of the Respondent’s Counsel that the motion for interlocutory injunction was withdrawn by the Appellant and same accordingly struck out by the Court and that the ex-parte order also lapsed. On the other hand, it is the Appellant counsel’s contention that the motion was still pending when the 2nd Respondent moved into the premises. This led to the Appellant filing a motion dated 8th of July, 2000 praying that the said premises/property be sealed up. The said application was granted on 15th of June, 2001. Being dissatisfied with the said ruling, the 2nd Respondent filed a Notice of Appeal together with an application for stay of execution of the order sealing up the premises. The application for stay was granted by the trial judge on 4th of July 2001. Dissatisfied, the Appellant lodged this appeal against the Ruling of the trial Court dated 4th of July, 2001, whereupon the 1st Respondent also cross appealed.
The Appellant’s Notice of Appeal was filed on 17th of July, 2001. 1st Respondent’s Notice of Cross Appeal was filed on 30th of December, 2002.
In accordance with the rules of this Court, parties filed their brief of arguments. The Appellant’s brief dated and filed on 21st of December, 2001, while the 1st Respondent/cross appellant’s brief dated 19th of September, 2006 was filed on 18th of March, 2008.
No brief was filed by the 2nd Respondent nor did the Appellant file a reply brief.
The Appellant in its brief formulated a sole issue for determination by the Court, viz:
“Whether under that (sic) facts and circumstances of this case the trial court ought to have granted the 2nd Respondents application for stay of execution dated 18th of June, 2001.”
While the 1st Respondent in its brief formulated, in respect of the Notice of Appeal, a sole issue for determination and 2 issues in respect of the cross appeal. They are as follows:-
From the Appeal:
“Whether under the circumstances of this case the trial court was in error when it granted application for stay of execution filed by the 2nd Respondent”
From the Cross-Appeal:
1. Whether it was in order for the court after granting accelerated hearing of the matter, to proceed to grant an order sealing the premises, which in effect resulted as a quasi-judgment on the merits.
2. Whether it was not an error on the part of the trial judge to make reference to substantive issues at the interlocutory stage. These are references to the lease and the party with the right to pass title to another.
The Appellant’s sole issue is the same as the 1st Respondent’s sole issue in respect of the Notice of appeal and shall be resolved as such.
SOLE ISSUE
Learned counsel for the Appellant acknowledged the fact that the grant of stay of execution is discretionary and that the appellate Court cannot ordinarily interfere with the exercise of discretion by a trial Court except where the exercise of discretion was based on extraneous matter or where the trial Court has failed to take into account relevant consideration. He cited the case of Anatogu vs. Anatogu (1998) 6 NWLR (Pt.552) 42 @ 56-57 H-A; Jammal Engineering Co. Ltd vs. Misr (Nig) Ltd (1972) 1 ALL NLR (Pt 1) 322.
It is his contention that the Court did not take all relevant facts especially those supplied by the Appellant. According to him, the learned trial judge erred when it held that the balance of convenience tilted towards the 2nd Respondent. This was so on the basis that the facts supplied by the 2nd Respondent in their affidavit were not specifically denied by the Appellant. It is his submission that it was wrong for the trial judge to refer only to paragraph 3 of the Appellant’s counter affidavit thereby ignoring other paragraphs in the Affidavit. He submitted that in addition to paragraph 3, other paragraphs in the counter-affidavit deposed to facts not only denying the affidavit of the 2nd Respondent but also provided facts showing that the balance of convenience should tilt in favour of the Appellant. For instance, the facts deposed to by 2nd Respondent that he had been in possession since 1996 was denied in paragraph 4 of the Appellant’s counter affidavit. As to hardship to be suffered, the Appellant also deposed to facts that he was locked out of the premises and his properties and equipment were taken over by the 2nd Respondent who continued to use same for his own business. Thus the claim by the 2nd Respondent that it has properties in the premises is false as the property belonged to the Appellant. Also the claim by the 2nd Respondent that it has goods at the warehouse is also false because the 2nd Respondent being a transport company does not deal in goods and there is no warehouse in the property.
It is the contention of the Appellant that the failure of the trial judge to consider the facts placed before the Court by the Appellant led the trial judge into failing to balance the hardship suffered by the Appellant against that of the 2nd Respondent thereby occasioning miscarriage of justice.
On the other hand, learned counsel for the Respondent/cross appellant also insisted that stay is a matter of discretion and that the appellate Court will not intervene unless the trial Court acted under a mistake of law or in disregard of principle, or under misapprehension of the facts, or that the discretion was wrongly exercised in that due weight was not given to relevant consideration or that the order thereby made will result in injustice. He cited the case of Vincent vs. Xtodeus (1933) 6 S.C.W.J. 299 para 40.
It is the submission of counsel that there is nothing in this instant case to warrant the Court of Appeal interfering with the exercise of discretion by the trial Court. According to the Respondent’s Counsel, the trial judge’s holding that the balance of convenience weighed in favour of the Respondent was based on due consideration of the affidavit evidence placed before the Court by the parties and their submissions. He contended that the Respondent’s affidavit deposed to facts that the Respondent/Applicant have various machinery and equipment on the land, they have a warehouse which they use for their business and they will suffer hardship if the order was not granted. He further contends that the Appellant’s counter affidavit did not specify what the Appellant would lose if the Respondent’s application was granted. He relied on the Supreme Court case of Buhari vs. Obasanjo (2003) 17 NWLR (Pt 850), 587 on the need of balance of convenience to be determined based on the affidavit of the parties.
On the failure of the Appellant to deny the affidavit of the Respondent, it is the contention of Respondent’s counsel that even if paragraph 3 of the Appellant’s Counter affidavit is read along with other paragraphs in the said counter affidavit, they do not constitute sufficient denial of the Respondent’s affidavit. According to him, all that can be deduced from the counter affidavit was that the Appellant was ejected from the premises. It is the submission of Respondent’s counsel, that the Appellant having been lawfully ejected by the 1st Respondent in accordance with due process, the Appellant and its staff no longer have a right of access to the premises. He submitted that the discretion of the trial judge was duly exercised in favour of the Respondent and the Appellant cannot claim to have suffered a miscarriage of justice as both parties have been duly heard by the trial judge before the exercise of its discretion.
The grant or refusal of an interlocutory application is a discretionary power of the Court, which right the Court has to exercise judicially and judiciously.
Judicial discretion is a term applied to the discretionary action of a Judge or Court and means discretion bounded by the rules and principles of Law and not arbitrary, capricious or unrestrained. It is a legal discretion to be exercised in discerning the course prescribed by Law and is not to give way to the will of the Judge, but to that of Law. See Mohammed vs. C.O.P (1999) 12 NWLR pt 630 pg.331.
A judicial discretion means that Courts are to act according to the rules of reason and justice, not according to private opinion; and according to Law not humour. In Re Alase (2002) 16 NWLR pt. 776 pg. 553, Union Bank of Nigeria Plc. vs. Adjarho (1997) 6 NWLR Pt.507 pg.112.
The learned trial Judge reviewed the affidavit evidence of both parties. He reached a conclusion that the balance of convenience at this stage especially as the hardship to be suffered by the Applicant weighed heavily on the Applicant for the order of stay. The premises being sealed, and with the Appeal pending, the goods warehoused therein will not be accessible either to the Applicant or its customers. To avoid this unnecessary damage, the Court held that the balance of convenience was in favour of the Applicant. See Momoh vs. Van Petroleum Corp (1996) NWLR Pt.458 pg. 100.
A Court’s exercise of its discretion without averting to all the peculiar facts and circumstance of the particular case before it, is as bad as its exercise upon a wrong principle.
Also, if there is any miscarriage of justice in the exercise of a judicial discretion, it is within the competence of an Appellate Court to have it reviewed. See Oduba vs. Houtmangracht (1997) 6 NWLR pt.508 pg.185.
Where a Court has exercised its discretion judicially and judiciously, the Appellate Court will not interfere. However, where the exercise of discretion tends to do injustice to one of the parties, the Appeal Court must employ its judicial sledge hammer to salvage the situation. See Guda vs. Kitta (1999) 12 NWLR Pt.629 pg.21, Imani and Sons Ltd. vs. Bil Construction Co. Ltd. (1999) 12 NWLR Pt.630 pg.254, Mohammed vs. C.O.P (1999) 12 NWLR Pt.630 pg 331, Ehidimhen vs. Musa (2000) 4 SC Pt.II Pg, 166, Oyekanmi vs. NEPA (2000) 12 SC Pt.1 Pg.70, Biocon Agro Chemicals vs. Kudu Holding (2000) 12 SC Pt.1 pg.139, Likita vs. C.O.P. (2002) 11 NWLR Pt.777 Pg.145.
In the instant case, the trial Judge had exercised its discretion judicially and judiciously. Therefore, the Appellate Court will not interfere with the discretion exercised by the trial Judge.
This issue is, therefore, resolved against the Appellant. This Appeal is unmeritorious and, therefore, dismissed. I make no orders as to costs.
CROSS APPEAL
ISSUE 1
Counsel submitted that the trial judge was in error in granting an order sealing the premises having granted an order of accelerated hearing. He refers to the cases of Onyesoh vs. Nnebudun (1992) 3 NWLR (Pt 229) 315; John Holt Nigeria Ltd vs. Holts African Workers Union of Nigeria and Cameroon (1963) 2 SCNLR 383; Nigerian Civil Service Union vs. Essien (1985) 3 NWLR (Pt 12) 306.
ISSUE 2
He submits that the learned trial judge was in error in going into the issue of the validity/subsistence or otherwise of the lease thereby going into the merit of the substantive suit. According to counsel, the learned trial judge is not allowed in law to deal with the substantive issue at the interlocutory stage. He relies on SGB Ltd vs. Buraimoh (1991) 1 NWLR (Pt 168) 428; Ojukwu vs. Governor of Lagos State (1986) 3 NWLR (Pt 26) 39; Mortunie vs. Gambo (1979) 3-4 SC.
I will deal with these two issues together for ease of reference.
The trial Court had in his ruling granted the parties accelerated hearing. It would have been in the best interest of the parties to have gone ahead and hear the case to the end.
There is really no need to make injunctive orders at this stage. The best way would have been to hear this matter expeditiously and make final orders that will bind the parties.
The injunctive orders to seal the premises was given in error as evidence has not been fully heard to assess the evidence properly and, therefore, know what orders to make. A Court ought not to make orders affecting the interest of a party without hearing from the parties to the action. See Adeleke vs. Raji (2002) 13 NWLR Pt.783 pg.142.
The injunctive order to seal the premises without hearing the evidence to the end was given in error.
This error was, therefore, remedied by granting a stay of execution. The trial Judge saw the error and the hardship that would have been suffered by the 2nd Respondents.
The Courts have been warned that in dealing with interlocutory issues they should not delve into the substantive matters.
Those substantive issues are to be left for the main trial. See John Holt Nig. Ltd. vs. Holts African Workers Union of Nigeria and Cameroon (supra), Nigerian Civil Service Union vs. Essien (supra).
Courts are enjoined not to resolve issues meant for the substantive suit at interlocutory stage. The Supreme Court in a myriad of decisions followed by this Court has consistently held that issues to be determined in a substantive Appeal should not unwittingly be decided at interlocutory stage. See NDIC vs. SBN Plc. (2003) 1 NWLR Pt.801 Pg.371, Iweka vs. SCOA (Nig.) Ltd (2000) 7 NWLR Pt.664 Pg. 325, Ola vs. Williams (2003) 5 NWLR Pg.812 pg. 48, JUC Professional Products (UK) Ltd vs. Mr. Michael Famuyide (2010) LPELR 4383.
The Courts have held that the Law is similarly now common knowledge that a Court is required to avoid making pronouncement or deciding issues at the preliminary stage which would touch or decide on the issues to be decided in the substantive suit. See L.M. Ericsson (Nig.) Ltd vs. Aqua Oil Nig. Ltd. (2011) LPELR 8807, NNPC vs. Famfa Oil Ltd (2009) 6 MJSC Pt.II Pg. 30, Okafor vs. Bendel Newspapers Corp. (1991) 7 NWLR pg. 206 pg. 651.
The learned trial Judge was, therefore, in error when it dealt with some of the substantive issues at the interlocutory stage.
This issue is resolved in favour of the Cross Appellant.
The Cross Appeal is meritorious and, therefore, allowed. This suit is, therefore, remitted to the Chief Judge, Lagos State to be assigned to another Judge for trial of the Substantive suit.
TIJJANI ABUBAKAR, J.C.A.: My learned brother UZO I. NDUKWE-ANYANWU, JCA made available to me in draft the lead Judgment just delivered. I am in complete agreement with the entire judgment and adopt it as my own with nothing extra to add.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the benefit of reading in advance, the draft of the lead judgment of my Learned Brother, UZO I. NDUKWE-ANYANWU, JCA and I agree with the reasoning and conclusion made therein.
It is indeed important that trial Courts should be wary of delving into the substantive matters when dealing with interlocutory applications. This is why an accelerated hearing is always preferable so that the matter in controversy can be decided once and for all. This position was aptly stated by the Apex Court PER NNAEMEKA-AGU, JSC in ONYESOH V NNEBEDUN (1992) 3 NWLR (PART 229) 315 as follows:
“The better view is, therefore, that whenever it is possible to accelerate the hearing instead of wading through massive affidavits and hearing lengthy arguments on interlocutory injunction, the Court should accelerate the hearing and decide finally on the rights of the parties.”
In this instant case, after granting an accelerated hearing of the case, the trial Court ought not to have granted the injunctive orders sealing up the property and not only that, delve into some of the substantive issues of the case at the interlocutory stage.
On the whole, in view of the considerations above and the better reasons contained in the lead judgment of my learned brother, ANYANWU, JCA, I too affirm the decision in the lead judgment of this court and abide by the consequential orders made therein.
Appearances
Appellants (Absent)For Appellant
AND
Chief C.J. Aremu (SAN), Rotimi Folayan, OlaniyiFor Respondent
