ALHAJI ALIKO DANGOTE v. AFRICAN PETROLEUM PLC & ORS. (2012)

ALHAJI ALIKO DANGOTE v. AFRICAN PETROLEUM PLC & ORS.

(2012)LCN/5782(CA)

In The Court of Appeal of Nigeria

On Friday, the 15th day of June, 2012

CA/L/13/2010

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

MUHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

Between

ALHAJI ALIKO DANGOTE Appellant(s)

AND

1. AFRICAN PETROLEUM PLC
(SUING THROUGH AND BY THE 2ND ? 15TH PLAINTIFFS)
2. NWOSU SUNDAY NNAMDI
3. ADELEKE ADEBAYO ADETUNJI
4. SHOFOLAHAN MARY JOKE
5. OBARINDE ISAAC OBATOSHO
6. SOARES AKINOLA
7. AJANI WAHAB ABIDOYE
8. IGBRUDE OKEOGHENE MOSES
9. KUDAISI AYODELE SARAT
10. NWOSU KENNETH NNABIKE
11. OMOJOLA ANTHONY OMONIYI
12. OSADINIZU CHUKS NWOSA
13. ODUKALE ABIMBOLA ADEBOYE
14. AMIOLEMEH OMODIALE ANGUS
15. ADEFUYE MICHAEL OLORUNTELE
16. MR. FEMI OTEDOLA
17. MR. TUNDE FALASINNU
18. MR. OSA OSUNDE
19. REV. LAYI BOLODEOKU
20. MRS. GRACE C. EKPENYONG
21. MR. SEBASTIN ADIGWE
22. MR. SEGUN SEBANJO
23. MR. STANLEY LAWSON
24. MR. CLEMENT AVIONWH
25. MR. CHRISTOPHER ADEYEMI
26. NOVA FINANCE & SECURITIES LTD
27. THE NIGERIAN STOCK EXCHANGE LTD/GTE
28. SECURITIES & EXCHANGE COMMISSION Respondent(s)

RATIO

DEFINITION OF ABUSE OF COURT PROCESS

Abuse of court process can be defined as the improper use of the judicial process by a party in litigation to interfere with the effective and efficient administration of justice. See Saraki v. Kotoye (1992) 5 NWLR Pt. 242 Pg. 428. Most of the arguments advanced by the 1st-15th Respondents’ counsel are actually challenging the merit of the appeal.
A preliminary objection can be brought only to challenge the competence of the appeal. The 1st-15th Respondents have not advanced any argument to challenge the validity of the appeal on a procedural or substantive point, which can prevent the court from hearing the appeal. The preliminary objection is misconceived and hereby overruled.
Having said this, it is trite that a Respondent in an appeal against a decision of a court, cannot argue against the Judgement of that court unless he cross-appeals. This is settled law. See Smithkline Beecham Plc v. Farmex Ltd (2010) 1 NWLR Pt. 1175 Pg. 285; Christlieb Plc v. Majekodunmi (2008) 16 NWLR Pt. 1113 Pg. 324. PER OGUNWUMIJU, J.C.A.

DEFINITION OF THE TERM “STATUS QUO”

Status quo is defined by the 9th Edition of Black’s Law Dictionary as latin for “state in which”; that is the situation that currently exists. The phrase status quo ante bellum was defined by the Supreme Court in Chief S.A. Falowo v. Oba Omoniyi Bamigbe & Ors (1998) 7 NWLR Pt. 559 Pg. 679 at 698-699, adopting the definition of Ogundare JSC in Akapo v. Hakeem-Habeeb (1992) 6 NWLR Pt. 247 Pg. 266 at 311 as follows:
“…the situation or position prevailing before the defendants’ conduct complained of by the plaintiff.”
I am of the view that there is no doubt that a court is entitled, indeed enjoined to preserve the ‘res’ in litigation to prevent its destruction or undue advantage to a party. However, even that inherent jurisdiction of the court must be exercised judiciously and judicially depending on the circumstances of each case.
I agree with learned Appellant’s counsel that since an order for maintenance of status quo is a specie of injunction, a court of law cannot make the order without being guided by the principles of granting injunction which are as follows:
1. It can be made when there is a real urgency but not a self induced or self imposed urgency
2. It can be granted where the court considers on a prima facie view that an otherwise irreparable damage may be done to the applicant
3. It can be granted where it is necessary to preserve the res which is in danger or imminent danger of being destroyed
4. It can be made until a certain day
See Itama vs. Osaro-Lai (2000) 6 NWLR Pt. 661 Pg. 515 at 521-522; Kotoye vs. CBN supra. PER OGUNWUMIJU, J.C.A.

THE MEANING OF AN OBJECTION TO JURISDICTION

An objection to jurisdiction simply means that the court has no jurisdiction and whatever it does the entire proceedings is invalid.
In GALADIMA VS. TAMBAI (2000) 79 LRCN 2107 at 2123 (C) OGWUEGBU, JSC refers to such objection as, “quarrel to get rid of an invalid proceedings.” That is to say, the proceedings conducted without jurisdiction is invalid.

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This an interlocutory appeal against the ruling of Honourable Justice A.M. Liman sitting at the Federal High Court, Lagos Division delivered on the 4th of August, 2009. The facts that led to the appeal are as follows:
The 1st- 15th Respondents as the Plaintiffs at the trial court, commenced this action by an Originating Summons dated 29th of July, 2009 against the Appellant and the 16th-28th Respondents claiming several declaratory reliefs. Along with the originating summons, the 1st-15th Respondents filed an affidavit of urgency, a motion ex parte for interim injunction and a motion on notice for interlocutory injunction. The 1st-15th Respondents’ claim at the trial court are set out below:
a) A DECLARATION that the Council of the Nigerian Stock Exchange Ltd/Gte, the 13th Defendant herein (hereinafter referred to as “the NSE”) cannot competently entertain, hear and/or purport to determine the complaint of the 1st Plaintiff Company herein (hereinafter referred to as “the Company”) on the manipulation of the Company’s share prices against the 11th Defendant herein, Alhaji Aliko Dangote and the 12th Defendant herein, Nova Finance & Securities Ltd whilst the 11th Defendant, Alhaji Aliko Dangote continued to remain in office as the 1st Vice President and the 2nd most ranking official of the Council of the NSE.
b) A DECLARATION that the 14th Defendant herein, the Securities & Exchange Commission (hereinafter referred to as “the SEC”) cannot competently whether as a regulatory authority or otherwise proceed to entertain and/or rely on the purported decision of the Council of the NSE in its decision and/or findings sated 15th April, 2009 on the said complaint of the manipulation of the Company’s share prices against the 11th Defendant herein, Alhaji Aliko Dangote and the 12th Defendant herein, Nova Finance & Securities Ltd whilst the 11th Defendant, Aliko Dangote remained at all material time relevant thereof the Vice President and 2nd most ranking official of the Council of the NSE.
c) A DECLARATION that to the extent that the said decisions and/or findings whether of the Council of the NSE or that of the SEC as respectively conveyed through the Council of the NSE’s Press Release of the 26th March, 2009 and the SEC’s “Findings and Decisions” dated the 15th April, 2009 purports to find in favour of the 11th Defendant, Alhaji Aliko Dangote and against the Company on the latter’s said complaints whilst the said Alhaji Aliko Dangote remained at all material time relevant thereof the Vice-President and 2nd most ranking official of the Council of the NSE the same constitute grievous violation of the Company’s Constitutional right to fair hearing; and, are thereby wrongful, null and void and of no effect whatsoever.
d) AN ORDER setting aside and/or quashing the said purported decisions and findings of the Council of the NSE and the SEC Defendant, respectively in favour of the 11th Defendant herein, Alhaji Aliko Dangote and against the Company on the said complaints on the manipulation of the Company’s share prices as conveyed vide the Press Release aforesaid dated the 26th March, 2009 and the said “Findings and Decisions” dated the 15th April, 2009, respectively.
e) AN ORDER restraining the 11th Defendant herein, Alhaji Aliko Dangote from occupying and/or further occupying the Office if the Vice President and/or member of the Council of the NSE and/or further remaining in the said Office or continuing to retain the said membership pending the fair, impartial and due hearing and determination of the Company’s said complaints by the Council of the NSE and/or the SEC, as the case may be.
f) AN ORDER that the NSE and/or the SEC jointly and/or severally forthwith remove the 11th Defendant herein, Alhaji Aliko Dangote from the Office of 1st Vice President and member of the Council of the NSE pending the fair, impartial and due hearing and/or determination of the Company’s said complaint by the Council of the NSE as duly constituted as to secure its impartiality and independence.
g) AN ORDER that the Council of the NSE duly constituted as aforesaid and the SEC forthwith severally and within their areas of respective competence proceed through their appropriate organs and/or bodies with the hearing and determination of the Company’s said complaints and that no member, servant or official of the said respective organs and/or bodies of the NSE and the SEC, as the case may be who shall have taken part in the respective proceedings of the Council of the NSE and the SEC leading to the said decisions being complained of shall participate in the said hearing and determination of the Company’s said complaints. AND/OR
h) AN ORDER that the NSE and/or the SEC jointly and/or severally pay to the Company and/or its members as at the 20th March, 2009 the sum of =N=161.95 per each unit if the Company’s issued share as that date being the loss suffered by the Company and/or its members on the market price of each unit of the Company’s said shares between opening price of the said Shares in the sum =N=216.13 on the 11th February, 2009 and the sum of =N=54.18 on the said March, 2009 by reason of the 11th and 12th Defendants said manipulations of the Company’s market share price at the material time and that the said sum be recovered by the NSE and/or the SEC as aforesaid from the 11th and 12th Defendants respectively. AND
i) AN ORDER that the Council of the NSE and the SEC jointly and/or severally make good and refund all such monies, fines and/or penalties imposed, levied on and/or collected from the Company by reason of their aforesaid purported decisions together with all costs and expenditures incurred in the proceedings leading to the said decisions complained of.
j) AN ORDER that the 1st-19th Defendants forthwith take all reasonable and expedient steps on the prosecution of the 1st Plaintiff’s said complaints on the manipulation of its share prices and the recovery of every and all losses suffered by the 1st Plaintiff by reason of the said wrongful conduct by the 11th and 12th Defendants herein. AND/OR that the same be prosecuted in the name and on behalf of the 1st Plaintiff by the 2nd-15th Plaintiffs herein.
k) Costs of this action
They also sought the following interim orders:
1. AN ORDER granting leave to the Applicants to sue in the name and on behalf of African Petroleum PLC (hereinafter referred to as “the Company”) for the Reliefs as are endorsed on the body of the Originating Summons filed in this Suit.
2. AN ORDER for the substituted service of the Originating Summons and other processes filed in this Suit on the 1st-1oth Defendants herein by service thereof on the Company Secretary of the Company or any other officer of the Company at the Company’s Head Office, AP House, 54/56, Broad Street, Lagos; the 11th and 13th Defendants herein by service thereof on the Secretary to the Council, the Nigeria Stock Exchange or any other officer of Nigeria Stock Exchange at Stock Exchange House, 2/4, Custom Street, Lagos; and on the 14th Defendant on its Officers at its Lagos Offices, 3, Idejo Street, Lagos.
3. AN ORDER of interim injunction restraining the 13th Defendant (hereinafter referred to as “the NSE”) and the 14th Defendants (hereinafter referred to as “the SEC”) or any one of them by themselves, their agents, servants and/or privies from taking any steps and/or further steps under and/or in furtherance of their respective decisions on the Company’s said complaints on the manipulation of its share prices against the 11th and 12th Defendants herein in favour of the 11th Defendant and against the Company as conveyed in the Council of the NSE’s Press Release dated the 26th March, 2009 and the SEC’s “Findings and Decisions” dated the 15th April, 2009 and/or placing reliance on those Findings in so far as they concern the 11th Defendant herein or the Company pending the hearing and final determination on the Motion on Notice for, inter alia, Orders of interlocutory Injunction filed in this Suit.
4. AN ORDER of interim injunction restraining the NSE and the SEC or any one of them by themselves, their servant, agents and/or privies from continuing to retain and/or permit the 11th Defendant herein, Alhaji Aliko Dangote to continue to remain and/or occupy the office of the 1st Vice President and member of the Council of the NSE and/or to relate, deal and/or associate with the said 11th Defendant herein in such or any like capacity pending the hearing and final determination of the Motion on Notice for Orders, inter alia, of interlocutory injunction filed in this Suit.
5. AN ORDER of interim injunction restraining the 11th Defendant herein, Alhaji Aliko Dangote from continuing to remain and/or occupy the office of 1st Vice President and member of the Council of the NSE and/or continuing to hold himself out and/or parade himself as continuing in the Office as 1st Vice President and member if the Council of the NSE pending the hearing and final determination of the Motion on Notice for inter alia, Orders of Interlocutory injunction filed in this Suit.
AND FOR SUCH FURTHER and other Orders as this Honourable Court may deem fit to make in the circumstances.
On the 31st of July, 2009, the trial court granted the first two reliefs sought in the motion ex parte for interim injunction and refused to grant reliefs 3-5. The Appellant, as the 11th Defendant at the trial court filed a conditional memorandum of appearance on the 4th of August, 2009 and a notice of preliminary objection challenging the competence of the suit and the jurisdiction of the trial court to hear and determine the suit. The 1st-15th Respondents filed a written address in opposition to the Appellant’s notice of preliminary objection on the 6th of August, 2009. The 16th to 28th Respondents also filed a written address in opposition to the Appellant’s notice of preliminary objection.
The matter came up for hearing on the 4th of August, 2009 before Honourable Justice A.M. Liman  who adjourned the matter for hearing on both the Appellant’s preliminary objection and the 1st-15th Respondents’ motion for interlocutory injunction. The court also ordered that the parties should maintain the status quo pending the hearing and determination of the applications.  The Appellant being dissatisfied with this order has brought this appeal. The notice of appeal is dated the 10th of August, 2009.
The Appellant’s brief of argument was dated 23rd of December, 2010 and filed the same day. The Appellant’s reply brief to the 1st-15th Respondents’ brief was dated 18th of February, 2011 and also filed the same day. The Appellant’s reply brief to the 16th-25th Respondents’ brief was dated the 27th day of September, 2011 and filed the same day. The 1st-15th Respondent filed a notice of preliminary objection dated 7th day of February, 2011 and filed on the 8th of February, 2011. The 1st-15th Respondents’ brief of argument dated 7th day of February, 2011 was filed on the 8th of February 2011. The 16th-25th Respondents’ brief was dated and filed on the 3rd of March, 2011. The 28th Respondent’s brief dated 1st day of September, 2011 was filed the 2nd day of September, 2011.
The Appellant’s counsel, Rickey M. Tarfa, SAN, Fola Sowemimo (Mrs.) and Andrew M. Malgwi, Esq in the brief settled by them identified a sole issue for determination as follows:
“Whether the trial court was right to have made the order for maintaining status quo in the circumstances of the case?”
The 1st-15th Respondents’ counsel, I.O. Aniakor Esq. also distilled one issue for determination as follows:
“Whether, given the particular circumstances of this suit, this is not a proper case for the grant of interim preservative Orders, as Ordered by the learned trial Judge, that parties maintain status quo pending the hearing of the Plaintiffs’ motion on Notice for Orders, inter alia, of interlocutory injunction filed in the suit?”
Counsel to the 16th-25th Respondents, P.O. Jimoh Lasisi SAN and Chimezie Victor C. Ihekweazu Esq. also identified a similar issue for determination as follows:
“Whether considering the proceedings of the Lower Court on the 4th August, 2009 and the circumstances of the case before the Lower Court the learned trial judge was justified in law when he ordered that status quo be maintained by the parties pending the hearing of the applications challenging the jurisdiction of the Lower Court and the application for interlocutory injunction after having adjourned the Suit to the 11th August 2009 for hearing of the said applications.”
Lastly, counsel to the 28th Respondent, V. Uche Obi and Anthony C. Uwakwe in a similar vein, identified a sole issue for determination as follows:
“Whether the lower Court whose jurisdiction and competence to hear the substantive suit is being validly challenged was right to have made the order that status quo be maintained in the suit without defining what the status quo was?”
Before the resolution of the single issue arising from this appeal, it is pertinent to resolve the preliminary objection brought by the 1st-15th Respondents. Counsel to the 1st-15th Respondents contended in their argument in support of the notice of preliminary objection, that the Grounds of the Appellant’s appeal as contained in the Notice of Appeal dated 10th of August, 2009 and filed on the 11th of August, 2009 are frivolous, disclose no reasonable ground of appeal and constitute grievous abuse of process and as such ought to be struck out and dismissed in their entirety.
Counsel submitted that the concept of abuse of judicial process is imprecise. Counsel cited Ogoejeofor v. Ogoejeofor (2006) 22 WRN 186 at 199. Counsel submitted that rather than comply with the simple Order of the trial court that parties maintain status quo, the Appellant, Nigerian Stock Exchange and Securities & Exchange Commission had proceeded to defy the same on the 6th of August, 2009 and thereafter brought an appeal on the 11th of August against the said order on the ground that the trial court lacked jurisdiction to entertain the suit at all. Counsel argued that it is not the business of the Appellant to make a determination on whether or not the trial court possess the jurisdiction to entertain the suit and that such decision remains solely and exclusively that of the Court. Counsel further argued that it is the duty of every person against or in respect of whom an order is made to obey that order unless it is discharged even where the person believed the order is invalid. A party who knows of an order whether null or void, regular or irregular cannot be permitted to disobey it. Counsel cited Shugaba v. UBN (2000) 24 WRN 109 at 122; Mobil Oil Nig. Ltd v. Assan (1995) 8 NWLR Pt. 412 Pg. 129 at 143
Counsel argued further that it would be inequitable for this Court to give a consideration to the Appellant’s appeal when he had clearly disobeyed the order of the trial court, a superior court of record. Counsel pointed out the case of Military Governor, Lagos State v. Ojukwu (2001) 39 WRN 155 at 171. He submitted that the Supreme Court, faced with a similar situation had concluded that it cannot consider the application before it because the Applicant had not purged itself of the contempt committed against the Court of Appeal. Counsel further cited Odogwu v. Odogwu (1992) 2 NWLR Pt. 225 Pg. 539 at 555; Ayorinde v. Kuye (2002) 24 WRN 37 at 68
Counsel conceded that the only exceptions to the rule that orders of the court must be obeyed are:
1. Where the Order was made without jurisdiction or
2. Where the party in disobedience is challenging, genuinely the validity of the Order.
Counsel submitted that none of the exceptions is applicable in this case. Counsel averred that the Appellant’s appeal and the grounds thereof are not only manifestly unarguable, but also constitute a deliberate attempt at delaying and frustrating the just and efficient disposal of the matters in these proceedings before the trial court. Counsel urged this court to dismiss the appeal.
In response, counsel to the Appellant in the reply brief to the 1st-15th Respondents’ brief submitted that the Preliminary objection is incompetent, unmeritorious and ought to be dismissed. Counsel pointed out that the grounds of the preliminary objection contained in the notice of preliminary objection are not competent grounds but statement of facts. Counsel pointed out that all the 1st-15th Respondents did was to state that the Appellant’s grounds of appeal were unarguable and meaningless, but failed to state the particulars of their being meaningless. Counsel cited Nepe vs. Isle Veore (1997) 7 NWLR Pt. 511 Pg. 135 at 145
Counsel contended that if there is, in this appeal, anything that is frivolous, discloses no reasonable ground of objection and constitute grievous abuse of process, it is the preliminary objection itself and counsel urged the court to dismiss same as such.
I have to agree with the learned Appellant’s counsel that the issue arising from this preliminary objection amounts to no issue at all. Learned counsel to the 1st-15th Respondents had argued that the grounds of appeal are frivolous, disclose no reasonable ground of appeal and are abuse of court process, but he failed to give satisfactory reasons why this is so. Instead, counsel went to town on what he considers was a violation of the Order made by the trial court on the 4th of August, 2009. This is however not the proper platform for this complaint to be made. The Appeal was brought by the Appellant to challenge both the correctness and authority of the trial court to make the Order to maintain status quo. Thus, the appeal as constituted cannot be an abuse of court process.
Abuse of court process can be defined as the improper use of the judicial process by a party in litigation to interfere with the effective and efficient administration of justice. See Saraki v. Kotoye (1992) 5 NWLR Pt. 242 Pg. 428. Most of the arguments advanced by the 1st-15th Respondents’ counsel are actually challenging the merit of the appeal.
A preliminary objection can be brought only to challenge the competence of the appeal. The 1st-15th Respondents have not advanced any argument to challenge the validity of the appeal on a procedural or substantive point, which can prevent the court from hearing the appeal. The preliminary objection is misconceived and hereby overruled.
Having said this, it is trite that a Respondent in an appeal against a decision of a court, cannot argue against the Judgement of that court unless he cross-appeals. This is settled law. See Smithkline Beecham Plc v. Farmex Ltd (2010) 1 NWLR Pt. 1175 Pg. 285; Christlieb Plc v. Majekodunmi (2008) 16 NWLR Pt. 1113 Pg. 324. Despite the vast array of cases in this regard, Counsel to the 28th Respondent still filed his brief of argument opposing the decision of the trial court in clear violation of this settled procedure. A(sic) such, I will discountenance the 28th Respondent’s brief dated on the 1st of September, 2011 and filed on the 2nd of September, 2011.
I will now delve into the appeal itself. All the parties identified similar issues, but I will adopt the Appellant’s own for the sake of clarity and better understanding. Therefore, the sole issue for determination before this court is whether the trial court was right to have made the order for maintaining status quo in the circumstances of the case.
Learned counsel to the Appellant pointed out from the definition of “status quo” in the 6th Edition of Black’s Law Dictionary and by the Supreme Court in Soludo vs. Osigbo (2009) 18 NWLR Pt. 1173 Pg. 290 at 296, that the sole purpose of making an order for maintenance of status quo is to preserve the ‘res’ in dispute so as not to render any judgment that may be later obtained nugatory or foist on the court a situation of complete helplessness should the Applicant succeed on his claim. Counsel cited Soludo vs. Osigbo (supra); Ita vs. Nyong (1994) 1 NWLR Pt. 318 Pg. 56 at 66-67; Kotoye vs. CBN (1989) 1 NWLR Pt. 98 Pg. 419. Counsel then argued that this being the case, an order for maintenance of status quo can only be made where there is a res capable of being destroyed.
Counsel pointed out that a careful perusal of the 1st-15th Respondents’ claim at the trial court contained in their originating summons at pages 1 -45 of the Record reveals that their complaint is that the Appellant, being the 1st Vice President of the 27th Respondent’s council might have influenced the decision of the council when it was considering the complaint of manipulation of the 1st Respondent’s shares made against the Appellant; a situation which violates the principles of fair hearing. Counsel concluded that the res in this case is the membership of the Appellant in the council of the 27th Respondent as at when the latter determined the allegation of manipulation of share price against the Appellant. Counsel argued that the res in this case is abstract and incapable of being destroyed. Counsel further argued that since the res in this case is a complaint against a completed act, the order for maintenance of status quo was erroneously made. Counsel cited John Holt Nigeria Limited vs. Holts African Worker Union of Nigeria and Cameroon (1963) All NLR 385; CBN vs. Industrial Bank Ltd (1997) NWLR Pt. 522 Pg. 712 at 723
Learned counsel to the Appellant also argued that a Court cannot make any order of maintenance of status quo where it lacks jurisdiction to entertain the substantive suit or the issue of jurisdiction remains unsolved. Counsel cited Uzondu v. Uzondu (1997) 9 NWLR Pt. 521 Pg. 466 at 480; NDIC vs. CBN (2002) 7 NWLR Pt. 766 Pg. 272 at 292; Soludo vs. Osigbo supra. Counsel then submitted that the 1st-15th Defendant did not make out a case of real urgency before the trial court and that the trial court in making the Order of 4th August, 2009 did not guide itself with the principles established regarding when an order can be made.  The court also did not give any reason for its decision.
Counsel further submitted that the Order made is also vague, ambiguous and unnecessarily generic in terms. Counsel referred to G.S. Gupta’s book ‘Law of Injunctions’ 7th Edition at page 286-287 where it was stated that a court needs to be clear in making the order to maintain status quo and that the conditions in the con of which or subject to which such direction is issued should be clarified. Counsel pointed out that the Order made by the court could be interpreted in many ways and would inadvertently lead to a miscarriage of justice.
Counsel to the 1st-15th Respondents in reply, contended that since the issue of jurisdiction as contained in the Appellant’s preliminary objection at the trial court was still pending, it constitutes a grievous abuse of process for the Appellant to bring the same issue before the court as this could be said to mean pursuing two processes simultaneously against the same parties in two different courts and for the same or similar relief.
Counsel argued that it is settled law that a court’s jurisdiction to grant injunctive reliefs in appropriate cases is not ousted by the mere fact that there is a challenge to its jurisdiction. Counsel further argued that a court has the power and remains under the duty to preserve the res in the case before it because until the court in any suit has determined that it has no jurisdiction to hear a suit, the court has preservative jurisdiction. Counsel cited Military Governor, Lagos State v. Ojukwu supra at 179. Counsel then submitted that since the trial court as at 4th of August, 2009 had preservative jurisdiction, it could validly make and did validly make the Order that the parties maintain status quo.
Counsel also contended that parties to proceedings pending in Court ought not to do anything which may have the effect of rendering nugatory the decision of the Court. Counsel cited Amaechi v. INEC (Citation needed) at pg. 201-202. Counsel further stated that the doctrine of lis pendens is applicable in this case. Counsel then urged this Court to resolve the issue in favour of the 1st-15th Respondents.
On his own part, counsel to the 16th-25th Respondents submitted that the order of the trial judge dated 4th of August, 2009 for parties to maintain the status quo pending the hearing of the Motion for interlocutory injunction and the objection challenging the jurisdiction of the Court was properly made. Counsel submitted that most of the authorities cited by the Appellant are completely inapplicable under the circumstances. Counsel argued that the case of Soludo vs. Osigbo (2009) 18 NWLR Pt. 1173 Pg. 290 at 296 was cited out of con and can not apply to the present circumstances while the case of John Holt Nigeria Ltd vs. Holt African Workers Union of Nigeria and Cameroon (1963) All NLR 385 had facts which are completely different from the present situation. Counsel attempted to distinguish all the authorities cited by the Appellant as not helping the Appellant’s case.
Counsel submitted that the status quo as at the date of the Order was not in doubt and as such the attempt by the Appellant to create ambiguity where there is none is misconceived and indicates an attempt to win at all cost. Counsel urged the court to dismiss the appeal.
Having considered all the above arguments, at this point, it would be apt to consider the sequence of events that led to the grant of the Order of maintenance of status quo. Mr. Sowemimo SAN had insisted that there was nothing urgent about the matter at hand and that any urgency being touted was self induced. He urged the court to take the issue of jurisdiction first. Mr. Aniakor had argued that the court should grant injunctive reliefs pending the hearing of the motion on notice for injunction. It should be noted that the court on the 31st of July, 2009 when the Plaintiffs’ ex parte application came up for hearing, had already refused to grant the injunctive reliefs in the interim being sought by the Applicants for the reason that the 1st-15th Respondents had not proven urgency. Set forth below is the ruling of the court on that day, it is on pg.157-158 of vol. 1 of the records:
” I have given due consideration to the motion ex-parte and the facts deposed in support thereof and the written addresses by Counsel. I am satisfied that the applicants have satisfied the requirement for the derivative action under Section 303 (1) of the Companies And Allied Matters Act. Accordingly prayer NOS 1 is granted as prayed. Equally, the application for substituted service is hereby granted as prayed.
However prayer NOS 3, 4 and 5 which relate to interim injunction against the 11, 13 and 14th Respondents cannot be granted in view of the fact that no extreme urgency has been shown. Secondly, the prayer to restraint 11th Respondent from remaining or retaining or continuing to occupy the office of the Vice President of the council of the NSE etc is to me at this stage not appropriate without giving the 11th Defendant, the opportunity to be heard. Accordingly, the prayers Nos 3, 4 and 5 are hereby refused. The Plaintiffs are hereby ordered to put the Respondents on notice and the hearing of the motion of interlocutory injunction is fixed for the 4/8/09.”
So, on the 4th of August, when the matter again came up for hearing, the trial court after much pressure from all counsel because some of them had just been served processes, adjourned the matter for the hearing of the 1st-15th Respondents’ application for interlocutory injunction and the Appellant’s preliminary objection to the 11th of August, 2009. I will now set out the last portion of the proceedings on the 4th of August, 2009 at the trial court where the trial concluded as follows:
“Court: The Preliminary Objection and the Motion for Interlocutory Injunction, I will take the two arguments together and I am going to give my Ruling after taking the argument on the 11th because I hope to travel on the 13th. So counsel should as much as possible be as brief as precise.
Case adjourned to the 11th day of August 2009 for hearing of both the preliminary objections and the interlocutory injunction meanwhile parties are required to maintain the status quo pending the hearing of the applications.”
It is clear from the above, that the order made was not tied to the 1st-15th Respondents’ motion ex parte for interim injunction as the court had earlier refused to grant reliefs 3-5 of the 1st-15th Respondents’ ex-parte application. None of the Counsel in court gave any exceptional circumstance to warrant the court to vary its order made on 31/7/09. At that point, the motion for interlocutory injunction had not been taken.  The court then ordered that the parties maintain status quo pending the determination of the Appellant’s preliminary objection and the 1st-15th Respondents’ motion on notice for interlocutory injunction. Let us examine the nature of an Order for maintenance of status quo: when and how it should be made.
Status quo is defined by the 9th Edition of Black’s Law Dictionary as latin for “state in which”; that is the situation that currently exists. The phrase status quo ante bellum was defined by the Supreme Court in Chief S.A. Falowo v. Oba Omoniyi Bamigbe & Ors (1998) 7 NWLR Pt. 559 Pg. 679 at 698-699, adopting the definition of Ogundare JSC in Akapo v. Hakeem-Habeeb (1992) 6 NWLR Pt. 247 Pg. 266 at 311 as follows:
“…the situation or position prevailing before the defendants’ conduct complained of by the plaintiff.”
I am of the view that there is no doubt that a court is entitled, indeed enjoined to preserve the ‘res’ in litigation to prevent its destruction or undue advantage to a party. However, even that inherent jurisdiction of the court must be exercised judiciously and judicially depending on the circumstances of each case.
I agree with learned Appellant’s counsel that since an order for maintenance of status quo is a specie of injunction, a court of law cannot make the order without being guided by the principles of granting injunction which are as follows:
1. It can be made when there is a real urgency but not a self induced or self imposed urgency
2. It can be granted where the court considers on a prima facie view that an otherwise irreparable damage may be done to the applicant
3. It can be granted where it is necessary to preserve the res which is in danger or imminent danger of being destroyed
4. It can be made until a certain day
See Itama vs. Osaro-Lai (2000) 6 NWLR Pt. 661 Pg. 515 at 521-522; Kotoye vs. CBN supra
Part of the claim in the originating summons of the 1st-15th Respondents at the trial court was that the Appellant be restrained from further occupying the office of Vice President of the Council of the Nigerian Stock Exchange which he was holding when the cause of action arose. The 5th prayer in the interim injunction filed on 29/7/09 was for an order restraining the Appellant from further continuing to occupy the post of Vice President of the Council of the Nigerian Stock Exchange. The reliefs sought by the originating summons which would be the cause of action is the re-opening of investigations into allegations made by the 1st-15th Respondents against the Appellant and some others and an Order that the Appellant should step down during the pendency of such an investigation.
The status quo ante bellum (before hostilities began) was that the Appellant was Vice President of the Council of the NSE. That status quo was still to be maintained by the order to maintain status quo. While this order would ordinarily mean that the state of affairs as at the time of the order should not be tampered with and that parties maintain and preserve the state of affairs at the time the order was made, in the special and unique circumstances of this case, it is not exactly clear what state of affairs the Order is meant to preserve. Since the raison d’etre for imposing preservative orders is to ensure that no drastic changes are imposed on the subject matter of litigation during trial, I think the trial judge should not have been stampeded into making the order. We must remember that to date the trial court has not yet taken the pending applications before it which include the application for interlocutory injunction and the preliminary objection on jurisdiction. The substantive issues in controversy are still pending.  The resolution of this appeal is without prejudice to all the pending applications and substantive issues.
Suffice it to say on the issue submitted to us for determination, whether the Appellant was Vice President or President of the NSE did not have any impact on the ‘res’ as constituted. It would have been a different thing if the injunctive reliefs sought were to prevent the Appellant’s election as a member of the NSE or as the President of NSE. Since Appellant was already Vice President, he could still be removed whether as President or Vice President if the trial court deems it fit after the trial.  There was to my mind no material change in the status quo.  In making these orders, a trial judge must be circumspect and look closely at the cause of action. The ‘res’ in this case was not capable of being destroyed by any of the parties. The order to maintain status quo had no basis. The pleadings as stated in the originating summons shows that there was nothing done at that point in the proceedings that could worsen the position of the Plaintiffs. After hearing the case on the merit, the court if it has jurisdiction could grant all the reliefs sought if they are meritorious and proved. There was no impending administrative act adverse to the Respondents interest to be stopped by the fact that the Appellant became President instead of Vice President of NSE.  Nothing would have been destroyed. The Court denied the application in one breath and granted it on the second breath.
There is no doubt that the court in deserving cases is entitled to make order to preserve the Res.
The exercise of discretion is a judicial act and is expected to be exercised judicially, namely in accordance with established principles.  It is an essential requirement of the administration of justice that the exercise by a judge of his judicial discretion should not only be respected but invariably upheld. There can only be interference where the discretion has been exercised in bad faith, frivolously or vexatiously.  The overriding principle in the exercise of discretion by a court is to maintain a balance of justice between the claimant and the Defendant. I have considered gravely whether to interfere with the trial court’s exercise if its discretion.  I have come to the reluctant conclusion that I am constrained to do so.
My strong, but humble view is that there was nothing to stay. All the complaints that the originating summons sought to set aside were all completed acts. I am of the firm view that I cannot endorse the ruling of the trial court at that point in time to the effect that parties should maintain status quo. There was no reason why the court should not have taken the interlocutory application first in order to hear both parties as the court initially indicated it would. I agree with learned Appellant’s counsel that in the circumstances of this case, there was no need for the exercise of the court’s discretion in that regard. The res sought to be protected was not properly identified and identifiable. It is important that judges must identify the ‘res’ before making orders to protect it. This was not done in this case. It was an unnecessary exercise of the court’s discretion as the Order had no basis. I have to allow this appeal.
The ruling of Liman J. of 4th August, 2009 in suit FHC/L/CS/798/09 is hereby set aside. The Order to maintain status quo is vacated.  Appeal allowed.  No Order as to costs.

SIDI DAUDA BAGE, J.C.A.: I had the privilege of reading in draft the judgment delivered by my learned brother OGUNWUMIJU, JCA. I am in complete agreement with the lead judgment that there is nothing to stay and that all the complaint that the originating summons sought to set aside were all completed act. Therefore the ruling of the trial court to the effect that parties should maintain status quo.
I also allow the appeal.

M. A. DANJUMA, J.C.A.: I have been privileged to read a while ago, the draft copy of the leading judgment of my Lord Helen Moronkeji Ogunwumiju, JCA, just delivered. I agree that the appeal has merit and should be allowed as the order to maintain the status quo ante bellum has no basis in Law as the facts do not support same.
It was wrongly made. I adopt wholely the reasoning and the conclusion reached in the lead judgment that the appeal be allowed and the trial judgment be set aside.
I shall however add a few words in contribution to the said judgment to add some fibre to an already fortified judgment.
In the matter leading to this appeal, there is no gainsaying or any doubt whatsoever that the 1st – 15th Respondents as plaintiffs had raised very weighty grievances against the Appellant’s occupation of the office of the Vice President of the Nigerian Stock Exchange (NSE) and the need to prevent its continued occupation thereof pending the determination of the substantive suit. Indeed a far reaching order of removal from the office already in occupation was sought and a sundry other reliefs, against the SECURITIES AND EXCHANGE COMMISSION (SEC) were sought, so that the status quo antebellum could be maintained pending investigations into allegations of impropriety such as unfair dealing in shares and share price fraudulent fixing be investigated. The jurisdiction of the SEC to do or take certain steps or further steps without first granting the interim reliefs sought against the Appellant was raised by the Respondents. The Appellant, who entered a conditional appearance or appearance in protest, challenged the jurisdiction of the trial Federal High Court by a Notice of Preliminary Objection.
An objection to jurisdiction simply means that the court has no jurisdiction and whatever it does the entire proceedings is invalid.
In GALADIMA VS. TAMBAI (2000) 79 LRCN 2107 at 2123 (C) OGWUEGBU, JSC refers to such objection as, “quarrel to get rid of an invalid proceedings.” That is to say, the proceedings conducted without jurisdiction is invalid.

It is well settled that a court is competent when the subject matter of the case is within jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction. See MADUKOLU & ORS V. NKEMDILIM (1962) 2 SCNLR 341; (1962) 1 ALL NLR (Pt.4) 587
The point of jurisdiction can be raised at any stage of the proceedings, including on appeal.
In the instant case it was raised timeously and at the inception of the suit at the trial court when the Appellant entered a conditional Appearance and filed a Notice of preliminary objection.
From that point hence, the trial court had no power to do anything or order anything or make an order to whatever effect that will have the effect of adversely touching on the merit of the claims in dispute without first resolving the jurisdictional question.
To do otherwise will amount to a decision in nullity as held in MACFOY vs. UAC. Ltd (1961) 3 ALL ER 1172.
In this Appeal as in Galadima v. Tamba, (supra), the crux of the preliminary objection on jurisdiction is that the trial court was the wrong venue for commencing the suit in the 1st place. It is clearly a jurisdictional issue. ACHIKE, JSC of blessed memory in GALADIMA VS. TAMBAI (Supra) at page 2121 paragraph E stated thus:-
“The crux of the complaint in this appeal is that the trial Area court No.1 in Zaria City was the wrong venue for commencing the land suit, clearly it is a jurisdiction issue.”
I have read of a counsel’s submission elsewhere, that once an objection to jurisdiction is taken, no interim order can be made. That no “Ts’ can be crossed nor even “I” can be dotted. I have always, subscribed to this view, and the reasoning that time can never run against the raising of a jurisdictional challenge and it’s determination, which must therefore be taken first before any other thing else. In my view, I think the only exception may be an order for an adjournment to hear and determine the jurisdictional issue if it can’t be heard and determined immediately.
It was ACHIKE, JSC who stated in TAMBIA’S case supra thus:-
“issue on the court’s jurisdiction is very pivotal and fundamental. Because it fundamental nature, on the authorities, it can be raised at any stage of the trial or even on appeal, and even before the apex court. The reason for this latitude to jurisdiction issue is obvious. A court that lacked jurisdiction to entertain a suit, either as a trial or Appellate court is incompetent to pronounce a judgment in respect of any aspect of the matter in controversy before it.”
See par. E – F of page 2127. It is without doubt that the order to maintain the status quo made by the trial court is a judgment as it is an order or decision of the trial court in an aspect of the matter in controversy i.e the election of the Appellant as the President of the Stock Exchange or the erstwhile position of the Vice President thereof. This, on the authorities, cannot be done yet upon a timeous challenge to jurisdiction raised earlier.
In spite of the existence of that judgment time never runs, against a court to decide on the issue of jurisdiction. To quote ACHIKE, JSC once more in the TAMBAI’s case SUPRA—“The consequence of a court continuing a case where it lacks jurisdiction is, as it were like the court embarking on a frolic which would undisputedly result in a nullity for which an appellate court, so invited, would have no compunction whatever to declare null and void. Jurisdictional question, be it criminal or civil matter has the same divesting consequence.
An attack or question to jurisdiction cannot be properly glossed over by any court once it is raised by the Defendant or the Respondent….
It is necessary to caution that whenever there is a challenge to jurisdiction the court should expeditiously attend to it in lamine particularly if the case is at the trial stage…”
KALGO, JSC in his own contribution in the TAMBAI’S case made it plain that “whenever the jurisdiction of a court is challenged or objected to in any proceeding and at any stage, it is the duty of that court to deal tiemously with the challenge or objection before deciding on the next course of action. See OKAFOR v. A. G. ANAMBRA STATE (1991) 5 LRCN 1497; (1991) 6 NWLR (Pt.200) 659. ONANIYI VS. AROYEHUM (1991) 4 LRCN 1271; OBIKOYA V. REGISTRAR OF COMPANIES (1975) 4 SC 31 STATE VS. ONAGORUWA (1992) 7 LRCN 194;
Granting an order for maintenance of status quo was like saying that the objection to jurisdiction was premature or too early to determine. This was a similar situation in STATE V. ONAGORUWA Supra, wherein the appeal was allowed by the Supreme Court on that ground. The learned trial judge would have saved itself the burden of toiling in futility as stated by KALGO JSC in TAMBAI’S case supra and ONAGORUWA case supra, if it had heard and determined the Appellant’s objection on jurisdiction first. Not having done so, it must be appreciated that justice is not a one way traffic and the fair hearing of a case does not depend on the fancy of the parties or judge.
See AJAOKUTA STEEL CO. (NIG) LTD VS. BIOSAH & CO. NIG. LTD 1997 11 NWLR (Pt.529) 145 page 605 paragraph BD of ANPP VS. INEC 2010 12 NWLR (Pt.1212) page 549.
The order of status quo ante made without the hearing and determination of the objection to jurisdiction been first done was wrong. The appeal against same is proper.
The said order is set aside and the appeal is accordingly allowed.
I subscribe to the lead judgment as entered and the order relating to costs inclusive.