ALHAJI GIDADO BAA v. ADAMAWA EMIRATE COUNCIL & ORS (2013)

ALHAJI GIDADO BAA v. ADAMAWA EMIRATE COUNCIL & ORS

(2013)LCN/6438(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 23rd day of July, 2013

CA/YL/45/2012

JUSTICES

SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

Between

ALHAJI GIDADO BAA Appellant(s)

AND

1. ADAMAWA EMIRATE COUNCIL
2. ALFA HAMMAN
(DAN IYAN GIREI)
3. ALHAJI MUSDAFA A. BABA YOLA Respondent(s)

RATIO

YARDSTICK FOR THE CLASSIFICATION OF A GROUND OF APPEAL

The important yardstick for the classification of a ground of appeal is not the form of the question it raises but:
(a) Where the ground of appeal shows that the trial court misunderstood the law or misapplied the law to the fact, it is certainly a ground of law;
(b) Where the ground suggests an invitation to the court where an appeal is lodged to investigate the existence or otherwise of certain facts made by the trial court or where the evaluation of the evidence tendered is exclusively challenged, it is a ground of fact or at best a ground of mixed law and fact;
(c) Where the questions which the court is bound to answer in accordance with a rule of law arises out of statutory provisions and interpretation of documents, it is a ground of law.
(d) Where the question is one that will require questioning the evaluation of the facts by the trial court before application of the law, it is a question of mixed law and fact;
(e) Where the ground of appeal questions the exercise of the discretion by a trial court, it is undoubtedly not a ground of law but at best a ground of mixed law and facts because the manner in which a court ought to exercise its discretion in a particular case is a question of fact depending on the facts and circumstances of each case;
(f) Whether or not discretion is exercised judicially and judiciously or arbitrarily in any particular case is a question of mixed law and fact;
(g) A ground of appeal complaining of failure of the court to discharge its duty considering and pronouncing on the issues raised before it is a question of law;
(h) A ground of appeal which is a complaint of the misapplication of correctly stated principles of law to the facts of a case is a ground of law alone.
See First Bank of Nigeria Plc V T.S.A. Ind. Ltd (2010) 7 SCNJ 384; Agbamu V Ofili (2004) 5 NWLR (Pt. 867) 540; Ezeobi v Abang (2000) 9 NWLR (pt. 672) 516; Coker V U.S.A. Plc (1997) 2 NWLR (Pt. 490) 641; Comex Ltd V Nigeria Arab Bank Ltd (1997) 4 SCNJ 38; Metal Construction (W.A.) Ltd V. Migliore (1990) 2 SCNJ 20; Nwadike v. Ibekwe & ors (1987) 11-12 SCNJ 72. PER SANKEY, J.C.A.

WHETHER OR NOT THE ABANDONMENT OF A GROUND OF APPEALS AMOUNTS TO AMENDING THE ENTIRE GROUNDS OF APPEAL

On the issue of whether the abandonment of a ground of appeal amounts to amending the entire Grounds of Appeal or whether same requires the leave of Court, it is my view that an appellant is certainly at liberty to withdraw or abandon any of his grounds of appeal. He may withdraw a ground of appeal by expressly applying to the court to do so. In that case, the Court may proceed to strike out the said ground. Alternatively, where an appellant does not formulate an issue in his brief of argument to cover a ground of appeal, that ground would be deemed abandoned, even where arguments have been proffered on it. See Araka V Ejeagwu (2000) 12 SCNJ 206; Bakare V Lagos State CSC (1992) 8 NWLR (Pt. 2620 641; Labiyi v Anretiola (1992) 8 NWLR (pt. 258) 139; Aja V Okoro (1991) 7 NWLR (Pt. 203) 260; Modupe V. State (1988) 4 NWLR (Pt. 87) 130. It is therefore a fallacy to contend that the Appellant cannot abandon or withdraw his ground of appeal unless he applies to amend the entire the grounds of appeal. That certainly is not the law. I therefore find that Order 6 Rule 15 of the Court of Appeal Rules, 2011 on the issue of amendment of grounds of appeal is wrongly invoked in this case. PER SANKEY, J.C.A.

CONDITIONS FOR THE GRANT OF INJUNCTIONS

On whether the 1st Respondent met all the conditions for the grant of an interlocutory injunction, the courts of our land, starting from the apex Court, have serially and repeatedly stated and re-stated the conditions for the grant of injunctions, whether interim or interlocutory, depending on the facts and circumstances of each case. Kotoye V CBN (supra) is indeed one of the foremost authorities, the locus classicus on the subject of the grant of interlocutory injunctions. Nonetheless, since 1989 when it was decided, there have been other landmark decisions in recent times which are no less prominent and outstanding, and which, when used as a guide, inevitably lead to judicious outcomes in such nature of applications. For instance, the decisions in Akinpelu V Adegbore (2008) 4 SCNJ 220; & Sotuminu V Ocean Steamship (Nig) Ltd (1992) 5 SCNJ 1, where the Supreme Court, yet again, reiterated the parameters it had set down in the Kotoye V CBN (supra) case, when considering whether or not to grant the injunctions sought. The considerations for the grant of an interlocutory injunction therefore are as follows:
(a) That the applicant must show that there is a serious question to be tried, i.e. that the applicant has a real possibility, not a probability, of success at the trial, notwithstanding the defendant’s technical defence, (if any). (Obeya Memorial Specialist Hospital V AG Federation (1987) 3 NWLR (Pt. 60) 325 followed);
(b) That the applicant must show that the balance of convenience is on his side; that is, that more justice will result in granting the application than in refusing it. Missini V Balogun (1958) 1 ALL NLR 318 referred to;
(c) That the applicant must show that damages cannot be an adequate compensation for his damage or injury, if he succeeds at the end of the dry;
(d) That the applicant must show that his conduct is not reprehensible, for example that he is not guilty of any delay;
(e) No order for an interlocutory injunction should be made unless the applicant gives a satisfactory undertaking as to damages save in recognised exceptions;
(f) Where a court of first instance fails to extract an undertaking as to damages, an appellate court ought normally to discharge the order of injunction on appeal.
See also Globe Fishing Ind. Ltd V Coker (1990) 7 NWLR (Pt. 162) 265; Akibu V. Oduntan (1991) 2 NWLR (Pt. 171) 1; Sotuminu V Ocean Steamship (Nig.) Ltd (1992) 5 NWLR (Pt. 239) 1; Oebonnaye V Adapalm (Nig.) Ltd (1993) 5 NWLR (Pt. 292) 147; & 7-Up Bottling Co. Ltd V Abiola & Sons (Nig.) (1995) 3 NWLR (Pt. 383) 257. PER SANKEY, J.C.A.

WHETHER OR NOT THE TRIAL COURT CAN PERMIT THE USE OF A DEFECTIVE AFFIDAVIT

Nevertheless, a trial court may permit the use of an affidavit even though it is defective in form, if the court is satisfied that it has been, sworn before a person duly authorized.
Furthermore, the court may allow an affidavit which is defective or erroneous to be amended and re-sworn by leave of the court.
See section 113 of the Evidence Act, 2011 (as amended).
See also F.G.N. V. A.I.C Ltd (2005) 4 NWLR (Pt. 970), Yusuf V. Obasanjo (2003) 16 NWLR (Pt. 847) 554 at 109. PER WEST, J.C.A.

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): The 1st Respondent, Adamawa Emirate Council, filed a Writ of Summons before the Adamawa State High Court on 3rd March, 2011 against the Appellant and the 2nd and 3rd Respondents seeking the following reliefs:
1. A declaration that the plaintiff as the traditional landowner is the lawful owner of a farmland located at Mallam Madugu Girei Local Government measuring 1461 x 854m, 1461 x 854m 1124.7694 Hectares) entrusted to the 3rd defendant by the plaintiff in his former position as the former District Head of Girei.
2. A declaration that the title, interest, right and privileges in and over the farmland in paragraph 1 above vests in the plaintiff as the traditional owner of same to the exclusion of any other person.
3. A declaration that the purported gift of the farmland in paragraph 1 above located at Mallam Madugu (subject matter of the dispute) purportedly made by the 3rd defendant (trustee of the farmland) to the 2nd defendant on 20/7/2008 as null and void and without effect since same was purportedly made without the consent and approval of the plaintiff.
4. A declaration that the purported sale of the farmland referred to in paragraph 1 above made by the 2nd Defendant to the 1st defendant on 3/10/2009 but signed and stamped by the 3rd defendant on 5/9/2009 as null and void and without legal effect in any manner whatsoever.
5. Order of court revoking the purported gift of the farmland in paragraph 1 by the 3rd defendant (trustee of the farmland) to the 2nd defendant and subsequent purported sale of the farmland by the 2nd defendant to the 1st defendant.
6. A declaration that the entry of the farmland by the 1st defendant and carrying out some developments therein as amounting to trespass.
7. A perpetual injunction restraining the defendants whether by themselves, their agents, servants or privies from entering into the farmland and utilizing same either for farming, grazing of animals, planting of trees, fencing, demarcating or plotting of same or dealing in the farmland in any adverse way that will jeopardise the interest of the plaintiff.
8. Order on the 1st defendant to remove any structure or development made on the farmland in paragraph 1 above.
9. N1, 000, 000,00 general damages for trespass.
10. Cost of the action.
11. Any other order the court may deem fit to make in the circumstance.

On the 31st March, 2011, the 1st Respondent/Plaintiff filed a motion ex parte and, simultaneously on the same date, filed a motion on notice seeking interim and interlocutory orders of injunction respectively against the Defendants. Both motions essentially sought injunctive orders restraining the Defendants from entering the farmland in dispute and from dealing with it in any way whatsoever. On the 5th April, 2011, the motion ex parte was heard and granted as prayed, while the motion on notice was argued on 13th May, 2011, and subsequently granted on 16th May, 2011. In his ruling, the learned trial Judge, Bansi CJ, (as he then was), granted the application as prayed and ordered an accelerated hearing of the substantive suit.

Dissatisfied with this decision, the Appellant filed his Notice and Grounds of Appeal on the 27th May, 2011 wherein he complains on three (3) grounds. The Grounds of Appeal bereft of their particulars, state as follows:
“Ground 1
The learned trial Judge erred in law when he granted the interlocutory application of the Applicant/1st Respondent which should have been refused based on the authority of the Supreme Court’s case of Kotoye vs. C.B.N. (1989) 1 NSCC 238; (1939) 1 NWLR (pt. 98) 419; (2006) 16 WRN 71; (2001) FWLR (Pt.49) 1567; and the authority of the Court of Appeal case of Leasing Co. Nig. Ltd V. Tiger Ind. Ltd (2007) 14 NWLR (Pt. 1054) 346 @ 374 paragraph C-H.

Ground 2
The learned trial Chief Judge erred in law when he consider (sic) the monetary value involved in the transaction in granting the Applicant/1st Respondent’s application.

Ground 3
The learned trial Chief Judge erred in law when he granted the application of the Applicant/1st Respondent without due compliance with the rules guiding affidavit evidence as provided in Section 89 of the Evidence Act.

On the 8th May, 2013, when the Appeal was called up for hearing, learned Counsel for the Appellant, Mr. Adikwu, adopted and placed reliance on the Appellant’s Brief of argument filed on 27-05-11 as his arguments in this Appeal. In response to the preliminary objection raised and argued in the 1st Respondent’s Brief, he filed an Appellant’s Reply on points of law on 17-05-13. He also filed an Appellant’s Reply to the 1st Respondent’s Brief of argument in respect of the substantive Appeal on the same date, which he similarly both adopted. He urged the Court to allow the Appeal and set aside the Ruling of the lower Court.

Mr. Igwe, learned Counsel for the 1st Respondent, filed a notice of preliminary objection vide a motion on notice on the 13th March, 2012. He argued the said objection at pages 2-3 of the 1st Respondent’s Brief of argument dated 07-05-13 and filed on 08-05-13. He consequently adopted and relied on the said pages of the Brief as his arguments in respect of the preliminary objection. He also adopted and relied on the arguments in the rest of the Brief as his arguments in this Appeal. He thus urged the Court to dismiss the Appeal.

Mr. Okorie, learned Counsel for the 3rd Respondent, stated that the 3rd Respondent filed a Notice of intention to contend for a variation of the Ruling of the lower Court dated 15-03-13. However, on noticing that he had not filed the said notice as contended, and had only argued same in his Brief, Counsel withdrew the 3rd Respondent’s Brief of argument filed on 26-06-12 entirely, as well as all other processes filed in the Appeal. He, instead, conceded to the Appeal.

It is noted that the 2nd Respondent, even though duly served with all the processes of the Appeal, neither filed a Respondent’s Brief in response to the Appellant’s Brief nor did he appear before the Court, either in person or through Counsel, to contest or concede to the Appeal.

By a motion on notice dated 12-03-12 and filed on 13-03-12, the 1st Respondent prayed this Court to strike out the Notice of Appeal for being incompetent. The Grounds of objection are:
1. That the Appellant/Respondent Notice of appeal and the Additional Grounds of Appeal filed before the Honourable Court contain facts and mixed law and facts.
2. That no leave was obtained from the High Court of Justice, Yola of this Honourable Court before the Appellant/Respondent’s Appeal against the Ruling of the High Court of Justice Yola dated 16th May, 2011 was filed.
3. That the Appellant/Respondent’s Appeal against the Ruling of the High Court of Justice Yola dated 16th May, 2011 is not of right.
In arguing the objection, learned Counsel for the Respondents formulated one ground for determination by this Court, viz:
“Whether this Honourable Court has the jurisdiction to hear and determine the Appellant/Respondents’ interlocutory Appeal of 26-5-11 containing mixed law and facts without obtaining the leave of the High Court of Justice Yola or this Honourable Court.”

Counsel relies on the decision in Chief of Air Staff V Iyen (2005) MJSC 97-99 for the guiding principles on whether a ground of Appeal is a ground of law, mixed law or facts. He submits that Grounds 2 and 3 are issues of facts and mixed law and facts requiring the leave of Court. Relying again on the decision of this Court in Adejuwon V Executive Governor, Ekiti State (2011) ALL FWLR (pt. 595) 360, where it was held that by virtue of Section 241 (1) of the 1999 Constitution, an Appeal against an interlocutory decision of the High Court is as of right where the Appeal raises a question of law alone or the interpretation of the provisions of the Constitution, Counsel refers to page 48 of the Record of Appeal to submit that Grounds 2 and 3 of the Grounds of Appeal did not raise a question of law alone or the interpretation of the provisions of the Constitution. Therefore the leave of this Court must be obtained before this interlocutory Appeal can be proper before the Court. On the consequences of failure to obtain leave, Counsel relies on Ikweki V Ebele (2005) 7 MJSC 125 @ 128.

With regard to the abandonment of Ground 2 of the Grounds of Appeal by the Appellant, learned Counsel submits that such requires the leave of Court by virtue of Order 6 Rule 15 of the Court of Appeal Rules, 201 since it would amount to an amendment of the Grounds of Appeal filed. It is therefore his contention that Ground 2 subsists. He asked the Court to so hold and to dismiss the interlocutory Appeal for being incompetent.

In responding on points of law having not filed a counter affidavit, Mr. Adikwu, learned Counsel for the Appellant, argues that the Grounds of Appeal are not of mixed law and fact and that this Court has jurisdiction to hear the Appeal, same not being incompetent. Counsel relies on Orakosin V Menkiti (1999) 2 SCNJ (page not cited), to submit that, where a ground of appeal challenges the misapplication of any law or any principles of law to grant an application that ought to have been refused, that ground of appeal has been held to be of law. He argues that Ground 3 is challenging the failure of the trial Court to comply with the provisions of Section 89 of the Evidence Act.

Counsel submits that the contention of the Appellant is that the law was misapplied by the lower Court. That an affidavit, which should have been rejected for failing to meet the requirement of the Evidence Act regarding affidavits that should be used in courts, was relied upon and used in obtaining the injunctive order, the subject matter of this Appeal. He thus urged the Court to hold that Ground 3, which challenges the failure of the trial Court to comply with Section 89 of the Evidence Act, is not fact at all, and that no leave is required.

In the alternative, learned Counsel submits that, since the Respondent/Applicant restricted his argument to Ground 3 alone, it means he has admitted that Ground 1 is a ground of law which requires no leave. That being the case, and Ground 2 having been abandoned, the law is that the Court should proceed to take the Appeal and pronounce on those grounds it considers to be of law, and then discountenance the grounds considered to be of facts, the required leave having not been obtained. Counsel thus urged the Court to so hold and to overrule the objection.

In respect of whether the abandonment of a ground of appeal amounts to amending the entire Grounds of Appeal or whether same requires the leave of Court, Mr. Adikwu relies on Araka V Ejoegwu (2000) 12 SCNJ 206 to submit that the Appellant is at liberty to withdraw or abandon any of the Grounds of his Appeal by neglecting to formulate issues based on them, and it will not amount to an amendment in any form. Counsel therefore urged the Court to discountenance the objection for lacking in merit.

The starting point for the consideration of this preliminary objection must necessarily take off from the substantive law on the point where such provides for it. In the instant case, Section 241 (1) of the Constitution of the Federal Republic of Nigeria provides as follows:
“241. – (1) An appeal shall lie from decisions of the Federal High Court High Court to the Court of Appeal as of right in the following cases –
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.”
The contention of the 1st Respondent is that Grounds 2 and 3 are grounds of facts and mixed law and facts for which no leave has been obtained. It is the law that when a party objects to a ground of appeal on the ground that it raises a question of fact or mixed law and fact, and that requisite leave has not been obtained, the court will determine the question on a reasonable understanding of the nature of the ground of appeal and not on what the party raising the objection may have misconceived to be the question involved in the ground of appeal filed by the appellant.

Where however the ground or grounds of appeal are not of law alone but of mixed law and fact or fact simpliciter, the right of appeal from the High Court to the Court of Appeal can only be exercised where the aggrieved party has first sought and obtained the leave of either the trial High Court or the Court of Appeal.

Gleaning through Ground 3 raised in the Notice of Appeal, (Ground 2 having been abandoned), it is apparent to me that this ground complains of the use of a defective affidavit which defect arises from its non-compliance with Section 89 of the Evidence Act by the lower Court. This therefore is certainly a ground of law and the Appellant is not required to obtain any leave of Court in order to rely on the said Ground. I therefore, without much ado, agree with the Appellant that Ground 3, being a ground of law, does not require the leave of court as prescribed by Section 241 (1) of the 1999 Constitution. It follows that the Notice of Appeal dated 26th May, 2011 and filed on 17th May, 2011, is valid and competent as well as extant. See Akinloye V Adelakun (2000) 5 NWLR (Pt. 657) 530 @ 535; General Electric Co. V Harry Akande (2010) 12 SCNJ 457.

Thus, the preliminary objection is of no moment and without basis, and I do so hold. It is accordingly overruled and dismissed.

Thus, the submission thereon is discountenanced. In the result, I find the preliminary objection completely misconceived. It is accordingly overruled and dismissed.

Now to the substantive Appeal: The Appellant, in his Brief of argument, abandoned Ground 2 of his Grounds of Appeal. Thus, in the resolution of the Appeal, he distilled two issues for determination from the remaining two grounds of appeal, i.e. Grounds 1 and 3, as follows:
1. Whether the learned trial Judge was right in granting the order without strict compliance with the provision of the law regulating the grant or refusal of such application.
2. Whether the learned trial Chief Judge was right in relying on the defective affidavit in support of the applicants’ motion on notice.
The 1st Respondent adopted these issues as the issues by which the Appeal will be determined. They are therefore considered ad seriatim.

Issue One: Whether the learned trial Judge was right in granting the order without strict compliance with the provision of the law regulating the grant or refusal of such application.
In arguing issue one, learned Counsel submits that the learned trial Judge erred in law when he granted the 1st Respondent’s application for an interlocutory order without his complying with the strict provisions of the law regarding such applications. He relies on Kotoye V CBN (1989) 1 NWLR (Pt. 98) & Leasing Co. V Tiger Ind. Ltd (2007) 14 NWLR (Pt. 1054) 346 @ 347. Counsel submits that the 1st Respondent failed to establish the existence of a legal right, which resulted in his inability to show with mathematical accuracy where the balance of convenience lies. He argues that the 1st Respondent also failed to prove that he will not be adequately compensated should the order be denied. In addition, Counsel argues that the 1st Respondent failed to make an undertaking as to damages.

Counsel further contends that by failing to exhibit his title deeds, the 1st Respondent failed to prove the existence of a legal right, whereas the Appellant, in proving his case, exhibited all his title deeds in respect of the land the subject matter of this suit. Counsel therefore urged the Court to set aside the order of the trial Court and to allow the Appeal.

On his part, Mr. Igwe, learned Counsel for the 1st Respondent submits that this issue is incompetent as the issue is not related to the Ground 1 of the Grounds of Appeal. Counsel submits that while Ground 1 complains of the grant of the interlocutory injunction, which should have been refused based on the authority of Kotoye V CBN (supra) & Leasing Co. Nig. Ltd V Tiger Ind. Ltd (supra), the issue for determination formulated is based on the grant of the order without strict compliance with the provision of law regulating the grant of such application. Counsel therefore submits that Ground one and the first issue for determination are not related and thus incompetent. Relying on Falola V UBN (2005) MJSC 64, he urged the Court to strike out this issue.

As an alternative submission, Counsel submits that the interlocutory injunction granted by the lower Court was proper in law and same complied with the provision of law, thereby meeting with the requirements enumerated in the case of John Holt Nigeria Ltd V John Holt & Co. (Liverpool Ltd) (1963) 1 ALL NLR 379. Counsel argues that the case of Kotoye V CBN (supra) cited by the Appellant, is not applicable as the subject matter and issue considered in that case was a Bank calling its Annual General Meeting and an interlocutory injunction was granted based on an ex parte application filed. Whereas in this case, the subject matter was a farmland and the interlocutory injunction was granted based on a motion on notice. Thus, the case is not on all fours with the instant suit. It is Counsel’s submission that the 1st Respondent successfully established the existence of a legal right as required by law vide an affidavit in support of the motion.

Furthermore, Counsel submits that the 1st Respondent does not need to prove with mathematical accuracy but only needs to show that he has a legal right which needs to be protected, which he argues he did by paragraphs 3, 4 & 5 of the supporting affidavit. He therefore urged the Court to hold that the most important pre-condition for the grant of an interlocutory injunction is to show that the applicant has a legal right which is threatened and ought to be protected and that the 1st Respondent established, and the lower Court was right to have granted the order.

In a brief reply on points of law, Mr. Adikwu, learned Counsel for the Appellant submits that contrary to the submissions of the 1st Respondent, there is no disparity between Ground 1 and issue 1. He clarifies that the “provisions of law” referred to in Ground 1 refers to the construal of the law in the said decisions of the Supreme Court and the Court of Appeal which has taken the form of law based on the principle of stare decisis, and same now regulates the grant and/or refusal of injunctions. Counsel submits that in doing substantial justice, the court should not allow itself to be misled through arguments that are academic or based on technicalities. He contends that the 1st Respondent’s arguments are merely technical and should not be used to defeat justice. He therefore urged the court to discountenance same.

In the alternative, Counsel submits that assuming without conceding that there is no relationship between Ground 1 and issue 1, the attitude of the court when issues for determination are not tied to grounds of appeal is not to strike it out but to look at the issues and the grounds very closely and see whether the issues can validly be distilled from any of the grounds. Reliance is placed on Enechukwu V Nnamani (2009) ALL FWL (Pt. 492) 1087, However, Counsel insists that issue 1 was distilled from Ground 1. Thus, he urged the Court to hold that the issue is competent and to discountenance the submissions of the 1st Respondent.

I have examined this issue closely vis-a-vis Ground 1 of the Grounds of Appeal, and I’m really hard put to see the merit in the 1st Respondent’s assertion of incompetence thereto. Clearly, what the Appellant complains of in this issue is: that the learned trial Judge failed to apply the principles of law enunciated in Kotoye V CBN (supra) to guide him in granting the restraining order sought. I find the submission of learned Counsel a mere resort to semantics and an effort to obscure the issues, instead of addressing the substantive issue behind the Ground. The issue may have been inelegantly couched but the gist of the issue is obvious. It is well to remind counsel that the days of technicalities are long since gone and courts have welcomed “substantial justice” with open arms, such that she is no longer a stranger to our hallowed temples of justice.

I therefore find that issue 1 is properly related to Ground 1 of the Grounds of Appeal and the submission on this is discountenanced and overruled as baseless.

One important factor for granting an interlocutory injunction is the preservation of the res. It is the province of the law that the res should not be destroyed or annihilated before the judgment of the court. The res in this matter is the farmland located at Mallam Madugu Road, Girei Local Government. It is noted that the sole reason advanced by the lower Court for granting the motion for interlocutory injunction is that it would be better to proceed to hear the substantive suit instead of spending time hearing arguments on the motion. The record of the lower Court, (by which we are bound), shows that the learned trial Chief Judge neither gave consideration to the pre-conditions for the grant of such a serious restraining order against one of the parties to the application before him, nor did he consider the affidavit and counter affidavit filed by the parties, before he exercised his discretion to grant the application in favour of one party. This, to my mind, was certainly not a judicious exercise of the lower Court’s discretionary power. Instead, the order was unilaterally made, without any pretence at an objective determination or semblance of compliance with the rules of adjudication between two competing parties. As a result, there is a virtual non – compliance with the principles for the grant of such an injunction in favour of the 1st Respondent.

This is made even more grievous by the fact that the 1st Respondent made no undertaking whatsoever as to damages, and none was extracted from him by the lower Court. Indeed, since there is no evaluation of the affidavit evidence at all by the lower Court, there are no findings upon which an appellate Court may test its decision in order to decide whether or not the 1st Respondent met with the conditions precedent to the grant of the injunction. As aforesaid, the premise upon which the injunction was granted was so that delay would not be incurred and the substantial suit would be expeditiously dealt with. In furtherance of this, an order for accelerated hearing of the suit was made. Since that was the case, then the proper order for the trial court to have made was an order for the maintenance of the status quo pending the determination of the suit, in order to preserve the res. Instead, the res was handed over to one of the disputing parties on a silver platter. This, in my humble view does not accord with the justice of the case.

It is for these reasons that I answer issue one in favour of the Appellant.

Issue Two: Whether, the learned trial Chief Judge was right in relying on the defective affidavit in support of the applicants’ motion on notice.

Learned Counsel for the Appellant submits that the learned trial Judge erred in law when he relied on the defective affidavit in support of the motion on notice to grant the order sought. Counsel contends that paragraphs 3, 4, 5 & 6 of the said affidavit did not comply with Section 115 (4) of the Evidence Act, 2011, in that they failed to furnish the lower Court with the time, place and circumstances of the information received. Learned Counsel submits that this defect is incurable and same should not be encouraged by the Court. Counsel therefore urged the court to hold that the learned trial Judge erred in law when he used a defective affidavit to grant the order of injunction, to allow the Appeal and set aside the said order.

In responding to the arguments under this issue, learned Counsel for the 1st Respondent, Mr. Igwe, submits that the trial Chief Judge was right in relying on the affidavit in support of the motion to grant the motion as same was not defective. He contends that the 1st Respondent satisfied the requirement of Section 115 of the Evidence Act in stating the source of his information and belief in paragraphs 3, 4, 5 & 6 of the said affidavit in line with the decision in Maja V Samouris (2002) 8 MJSC 103. Counsel further submits that, assuming without conceding that the affidavit is defective, Section 113 of the Evidence Act gave the learned trial Judge the discretion to allow the use of such an affidavit as long as the Court is satisfied that it has been sworn before a person duly authorised. In addition, Counsel contends that the 1st Respondent himself is not coming to equity with clean hands given that paragraphs a(a) (b) (c) (d), (f) (g) (i) (j) & (l) of his counter affidavit are legal arguments and conclusions. He therefore urged the Court to refuse the Appeal and dismiss same as lacking in merit.

In a brief reply on point of law, learned counsel for the Appellant submits that the distinction between the case of Kotoye V CBN (supra) and the instant case made by the 1st Respondent is merely academic, irrelevant and un-called for. He further repeats his earlier position that the 1st Respondent did not establish the existence of any legal right because he did not exhibit any document of title before the trial Court to show prima facie evidence of the existence of a legal right that is being threatened and that needs protection. He argues that instead, it is the Appellant that did exhibit several title documents that show prima facie evidence of a legal right which needs protection.

Consequently, based on Gambari V Buhari (2009) ALL FWLR (Pt.479) @ 459, Counsel submits that the Appeal should be allowed. He therefore urged the Court to discountenance the submissions of the 1st Respondent, allow the Appeal and set aside the order of the lower Court for lacking in merit.

Under this issue, the Appellant centres his attack on the affidavit of the 1st Respondent in support of the motion on notice for the grant of an interlocutory injunction. This presupposes that the learned trial Judge relied on the affidavit of the 1st Respondent in arriving at his decision to grant the injunction. However, contrary to such a presumption, it is obvious from the record of the lower Court that the learned trial Chief Judge did not at all advert his mind to the said affidavit before the lower Court in coming to his decision.

Therefore, the question of whether or not the said affidavit and/or counter affidavit were defective for contravening the provisions of the Evidence Act on the contents of an affidavit becomes merely academic.
In arriving at his decision, the learned trial Chief Judge completely ignored both affidavits, and chose to hear the substantive suit instead of spending time hearing arguments on the motion for an interlocutory injunction. His exact words at page 44 of the printed record were:
“The motion is supported and opposed by affidavit evidence on both sides. The legal and commercial conveniences for an application such as this has been laid down by the Supreme Court since 23rd December, 1953 in the case of John Holt Nigeria Ltd Vs. John Holt & Co. (Liverpool) Ltd (1963) 1 ALL NLR 379 in which the Supreme Court per incuriam said ‘instead of spending much time on hearing long arguments on whether or not to grant an interlocutory injunction and granting leave to appeal a trial court would do better by hearing the claim itself without delay…’
‘..The panacea to this situation therefore is they (sic) one provided by the Supreme Court in 1963 in the case just cited. I shall for the reason 3 herein give (sic) grant the application and the accelerated hearing of the case. It is hereby granted.”
Since no consideration was given to the affidavits before the lower Court by the learned trial Judge, it would be unwise for me to proceed to make any pronouncement on something that did not take place at all. There is thus nothing for the Court to resolve here, other than to make the point that the lower Court failed to give any consideration whatsoever to the affidavits before it in arriving at its decision. That in itself is to be deprecated. Enough said.

In the result, and based on all the above findings, I find merit in the Appeal. It succeeds and is hereby allowed. The order of the learned trial Judge, Bansi, CJ, (as he then was), made on 16th May, 2011, granting an interlocutory injunction restraining the Appellant either by himself, servants, agents, privies or any one claiming through him from entering into, utilizing same or dealing with the farmland located at Mallam Madugu Road, Girei Local Government, is hereby set aside. Parties are ordered to bear their own costs.

SOTONYE DENTON WEST, J.C.A: I had the pleasure of reading in draft the Judgment of Jummai H. Sankey (JCA) just delivered. I am inconsonance with the reasoning and conclusions therein. However, it is my view that the provisions of the Evidence Act, 2011 (as amended) particularly section 115 stipulate the form of facts that ought to be contained in an affidavit evidence with respect to time, place and circumstances of information received and failure to comply with this provision like any other statute will render the information (evidence) defective.

Similarly, where the facts deposed to in an affidavit by a person is derived from information received from another person, the name of his informant must be stated and reasonable particulars given in respect of his information and the time, place and circumstances of the information. In effect, the deponent must disclose the source of his information and knowledge of the averment when he has no personal knowledge of the facts.
See Dapianlong V. Dariye (2007) 8 NWLR (Pt. 1036) 332, Maja V. Samoris (2002) All FWLR (Pt. 98) 818.

I dare say that affidavit in support of an originating process or motion stands as evidence of the facts deposed to in a case. The courts are usually enjoined to consider the averments in the affidavit and the annexed exhibits before arriving at their decisions.
See CPC & Ors. V. Senator Yakubu Garba, Lado & Ors. (2011) LPELR – 3997, Amadi v. NNPC (2006) SC. (Pt. 166), Kava V. UBA Ltd (1997), NWLR (Pt.481), 251 at 253.

In the appeal, it will not be absurd to hold that the learned trial Judge did not properly appreciate the facts that evidence in respect of the application before it but unmindfully emphasized more on the main appeal instead of making evaluative pronouncement on application before it.

It is therefore gleaned from the record of appeal that the learned trial Judge did not glance at, talk more of evaluating the affidavit in support of the application before arriving at its decision as it did.
See page 44 of the record of appeal.

May I state that a cursory and proper examination of what is before the court contributes in speedy dispensation of justice and would rarely generate appeals especially frivolous ones.
I therefore without much ado deprecate the action of the learned trial Judge who erroneously took refuge in the decision of the Supreme Court in John Holt Nigeria Ltd. v, John Holt & Co (Liverpool) Ltd. (1963) 1 All NLR 379.
Having held the above, it borders me to ask, should there be any good reasons behind the ratio decidendi of the lower court at page 44 of the record? Has substantial justice been done at this interlocutory stage? My answers are obviously in the negative. It is therefore better to gradually follow and uphold substantial justice rather than enthroning speedy but truncated justice.

It is in view of the foregoing and the fuller reasons adduced in the lead Judgment that I too allow the appeal and I abide by all the consequential orders made therein including order as to no costs.

IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading the lead Judgment of my learned brother J. H. Sankey JCA, and I also hold that the Appeal is pregnant with merit as the order of interlocutory injunction granted by the lower Court was unwarranted and unsupported by the facts of the case. Accordingly, the order of interlocutory injunction of the Hon. Bansi, C. J. is hereby set aside. Parties shall bear their respective costs in this Court.

Appearances

G.C. Adikwu Esq.For Appellant

AND

G.K. Igwe Esq. for 1st Respondent
D.I. Okorie Esq., with Nadoo Unom (Miss) for the 3rd RespondentFor Respondent