ARCHITECT ZUBAIRU AHMED V. MALLAM AHMED DASUKI
(1997)LCN/0345(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of November, 1997
CA/K/225/96
RATIO
APPEAL: WHETHER OR NOT IN AN INTERLOCUTORY APPLICATION A TRIAL COURT MUST DO EVERYTHING IN ITS POWER TO AVOID GIVING A RULING THAT WOULD AMOUNT TO PRE-JUDGING THE RELIEF SOUGHT IN THE SUBSTANTIVE CASE
It is the law that in an interlocutory application a trial court must do everything in its power to avoid giving a ruling that would amount to pre-judging the reliefs sought in the substantive case. See the cases of Orji v. Zaria Industries Ltd. (1992) 1 NWLR (Pt. 216) 124 and Obikoya v. Wema Bank Ltd. (1989) 1 NWLR (Pt. 96) 157. PER OGEBE, J.C.A.
JUSTICES:
UMARU ABDULLAHI Justice of The Court of Appeal of Nigeria
JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria
ATINUKE OMOBONIKE IGE Justice of The Court of Appeal of Nigeria
Between
ARCHITECT ZUBAIRU AHMED Appellant(s)
AND
MALLAM AHMED DASUKI Respondent(s)
OGEBE, J.C.A. (Delivering the Leading Judgment): This appeal arose from the interlocutory ruling of the High Court of Kaduna State restraining the appellant from operating in the partnership name of TRIAD ASSOCIATES pending the determination of the substantive suit. The appellant sued the respondent before the lower court with respect to their partnership agreement. The respondent in the statement of defence also counter-claimed. Both sides brought motions for interlocutory injunction.
The relevant motion for the purpose of this appeal is that of the respondent. In that motion he sought in the first relief an order of interlocutory injunction restraining the plaintiff/appellant, the present appellant or any of his servants, agents or privies from carrying on any form of business in the name of TRIAD ASSOCIATES pending the hearing and determination of this suit. The trial court heard the motions of both parties and in a joint ruling restrained both sides from their using the names of TRIAD ASSOCIATES or Triad Consultants for their business pending the determination of the substantive suit. Dissatisfied with this ruling the appellant has applied to this Court, and in accordance with the rules of court filed a brief of argument in which he identified two issues for determination as follows:-
“1. Whether the learned trial Ag. Chief Judge properly exercised her discretion when in the face of all the facts and material before her to the contrary, she restrained the appellant from carrying on business under the pre-existing name “TRIAD ASSOCIATES”?
2. Having regard to the balance of convenience, was it just and proper for the trial court to have restrained the appellant from the use of his existing business name?”
The respondent also filed a brief of argument and identified two issues for determination. In the course of argument of this appeal the respondent abandoned the 2nd issue as it did not arise from any of the grounds of appeal and it was accordingly struck out. The surviving issue of the respondent is Issue (A) and it reads: –
“Whether the lower court properly exercised its discretion, judiciously and judicially,”
The learned Senior Advocate for the appellant submitted on the first issue that the trial judge was wrong in restraining his client from using the trade name “TRIAD ASSOCIATES” to carry on his business when it was clear from the materials before her that it was the respondent who voluntarily resigned from the partnership and left the appellant to carry on the business with liabilities of the partnership still to be satisfied. He argued that to stop his client from carrying on the business would tantamount to dissolving the partnership, a relief which was sought for by the respondent in his counter-claim. This amounted to pre-judging the outcome of the substantive counter-claim.
The learned Senior Advocate submitted further that even after the withdrawal of the respondent from the partnership, the appellant continued to run the business and therefore for the trial judge to maintain the status quo, she was duty bound to allow the appellant to continue with the business name of TRIAD ASSOCIATES. The court in restraining both sides from using the name TRIAD ASSOCIATES was not maintaining the status quo. In his submission status quo can only mean the situation prevailing before the conduct complained of. He relied on the case of Akapo v. Hakeem Habeed (1992) 2 NWLR (Pt. 247) 266. The learned Senior Advocate argued forcefully that from the letters written by, the respondent Exh. ZA. 3 and Exh. S.i, it was clear that the respondent had no objection at the time of his withdrawal from the partnership to the use of the trade name TRIAD ASSOCIATES for continuing the business pending its winding up especially as he vowed not to be responsible for any liability of the partnership from the date of his withdrawal. It follows therefore that if the appellant did not continue to maintain the trade name he would not be expected to meet the liabilities outstanding against the partnership.
On the 2nd issue the learned senior counsel submitted that the trial Judge failed to consider the issue of balance of convenience which weighed heavily in favour of the appellant. If she had considered it, she would not have restrained the appellant from continuing business with the partnership name of TRIAD ASSOCIATES.
He referred to the case of Obeya Memorial Hospital v. Attorney-General of the Federation & Ors (1987) 3 NWLR (Pt. 60) 325.
In reply to the submission of the learned Senior Advocate the learned counsel for the respondent submitted that the lower court exercised its discretion judiciously and judicially by restraining both parties from using the business name TRIAD ASSOCIATES because the main issue before the lower court from the pleadings and applications from both sides was the use of the trade name.
The principles governing the grant or refusal of an interlocutory injunction are well stated in the case of Ahamadu v. Attorney -General Rivers State (1996) 1 NWLR (Pt. 459) 236 at page 248 as follows:-
“The grant or refusal to grant an interlocutory injunction is at the discretion of the court. That discretion must be exercised judicially. Although it is impossible to lay down any general rule regulating the exercise of the court’s discretion in a case, it must be borne in mind that interlocutory injunctions are not granted as a matter of grace or routine. On the contrary, the injunction is granted only in deserving cases on law and facts. See A.C.B. v. Awogboro (1991) 2 NWLR (Pt. 176) 711. Clearly therefore an applicant in an application of this nature must establish before the court that there is a serious issue to be tried at the hearing. Once he had done that, the trial court will then proceed to consider the balance of convenience. Of course, the burden of proof is on the applicant to establish that the balance of convenience is on his side. When an applicant satisfies these conditions, he is unquestionably entitled to an order of interlocutory injunction pending the determination of the substantive action. The reason is obvious, the object or purpose of the injunction is to maintain the status quo pending the determination on the merits.”
Similarly in the case of Obeya Memorial Hospital v. A. G. Federation & Ors (1987) 3 NWLR (Pt. 60) 325 at p. 338 Obaseki J.S.C. stated the object of interlocutory injunction as follows:-
“The object of interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action, if the uncertainty were resolved in his favour at the trial, but the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial. The court must weigh one need against the other and determine where the balance of convenience lies.”
At page 131 of the record of appeal the respondent counter-claimed against the plaintiff/appellant as follows: –
“a. A DECLARATION dissolving the partnership of Triad Associates as a result of the plaintiffs misconduct, willful and consistent breach of trust and spirit of the partnership.
b. A DECLARATION that the partners of Triad Associates as at the date of the dissolution are the plaintiff, defendant, Musa Sada and Taofik Popoola.
c. AN ORDER appointing an independent valuer to value all the assets and liabilities of the partnership, and share same in accordance with the Partnership Agreement.
d. GENERAL DAMAGES of N20m (Twenty Million Naira only) for acts of embarrassment and bad faith affecting the reputation and status of the defendant.
Particulars
i. lies told on behalf of the partnership to the Ministry of Defence as regards outstanding payments;
ii. using 1983 cancelled registration for registering the partnership with ARCON;
iii. locking up partnership office, refusing the other partners access to the partnership and personal documents, phones and P.O. Box number.”
It is significant to note that the respondent did not seek for a perpetual injunction to restrain the appellant from the use of the trade name TRIAD ASSOCIATES in his counter claim. He was merely asking for the dissolution of the partnership as a final order. It is surprising therefore that he came up with a motion for interlocutory injunction to restrain the appellant from the use of the trade name when such relief was not even part of his claim in his counter claim. Be that as it may, from the materials before the trial judge, it was the appellant who started the partnership business before the respondent joined him. See paragraph 3 of the appellant’s affidavit in support of his motion which reads:-
“3. That I registered the name and business known as Triad Associates in 1983 for the purpose set out above and was the only person running same at that time. A copy of the Certificate of Registration is annexed herewith and marked as Exhibit ”ZA 1″.
In paragraph 8 of the respondent’s affidavit in support of his own motion he averred as follows:-
“8. That the plaintiff/respondent has got an interim order restraining me from using Triad Consultants, and although our partnership is yet to be dissolved, he is using the name of Triad Associates which is against my interest therein.”
In this averment he admitted that the partnership is yet to be dissolved. It is beyond dispute that it was the respondent who decided to pull out of the partnership in Exh. ZA 3 attached to the appellant’s affidavit. He stated inter alia:-
“(2) Having considered all developments that led to dispute in respect of our performance and commitments to the partnership, I hereby notify you of my decision to discontinue with the joint working relationship. However, I would like to suggest the following interim mode of operation pending a formal winding up.”
From all the material available to the trial judge, it is clear that the balance of convenience is in favour of the appellant for he would suffer more if he was restrained from carrying on business in the trade name which he himself initiated. Moreover, restraining the appellant from carrying on business in the trade name would lead to the total collapse of the partnership before the substantive suit is concluded and would amount in essence to granting the respondent’s relief for the dissolution of the partnership before the substantive suit is finally determined. It is the law that in an interlocutory application a trial court must do everything in its power to avoid giving a ruling that would amount to pre-judging the reliefs sought in the substantive case. See the cases of Orji v. Zaria Industries Ltd. (1992) 1 NWLR (Pt. 216) 124 and Obikoya v. Wema Bank Ltd. (1989) 1 NWLR (Pt. 96) 157.
I am therefore satisfied that the trial judge was wrong in restraining the appellant from operating in the business name of TRIAD ASSOCIATES. Accordingly that ruling cannot be allowed to stand. I therefore allow the appeal and set aside the ruling of the trial judge restraining the appellant from operating in the partnership name of TRIAD ASSOCIATES. In its place the respondent’s relief in his motion to restrain the appellant from so doing is hereby refused. From the circumstances of this case, I do not think it is proper to award any costs. Parties are to bear their own costs.
ABDULLAHI, J.C.A.: I read before now the judgment just delivered by my learned brother, Ogebe JCA. I agree with all the reasons given and the conclusion reached. I abide by all the consequential orders made therein.
IGE, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother Ogebe JCA just delivered. I agree with his reasoning and conclusions.
I will however like to make a few comments with regard to the term status quo and status quo ante. The counsel for the appellant has rightly pointed out that there is a difference between status quo and status quo ante. In an application for an injunction the status quo to be maintained is the position that existed before the acts complained of in the substantive action. For example where the Res is a land in dispute all activities affecting the Res are automatically terminated pending the hearing of the substantive suit – such as the defendant continuing to build on the land.
The learned trial Judge in her Ruling stated that it was her view that the status quo ante be maintained pending the final determination of the substantive suit. What is the meaning of the phrase status quo ante? The full phrase is status quo ante bellum which means the situation which existed before the war began i.e. before the plaintiff started to complain about the actions of the defendant. The complaint in this case began when the defendant pulled out of the Partnership of Triad Associates to form Triad Consultants. The Triad Associates is still in existence and has not been wound up one way or the other. For the learned trial Judge to grant an injunction against the two parties in the suit is to my mind determining what is yet to be determined in the main suit. It is not possible for the trial court to find merit in the prayers of the two sides because their prayers are not the same and their circumstances are different. The plaintiff/appellant has asked the court to grant him an order of interim injunction restraining the defendant/respondent acting by himself or through his servants, agents, co-partners and privies from passing off with the plaintiffs Trade or Business name “Triad Associates” by engaging in business under the name Triad Consultants which business name is likely to be confused or juxtaposed with the plaintiff/applicant’s pre-existing trade or business name until the substantive suit is determined by this Court.
This prayer of the plaintiff has its origin or linkage with one of the heads of claim in plaintiff’s statement of claim i.e. claim under passing off plaintiff’s trade name whereas the defendant/respondent has prayed the court for “an order of interlocutory injunction restraining the plaintiff/applicant or any of his servants, agents or privies from carrying on any form of business in the name of Triad Associates pending the determination of this suit.
This prayer of the defendant/respondent does not relate to any of his reliefs in the counter claim filed before the court.
The import of the learned trial Judge’s order tantamounts to closing down the Company named Triad Associates. This will be status quo post bellum and not ante bellum. This in effect means that the substratum of the substantive suit has been determined at the interlocutory stage. See the case of Military Administrator Fed. Housing Authority v. Aro (1991) 1 NWLR (pt. 168) 405. It is my view that the learned trial Judge has failed to exercise her discretion in this matter judiciously and judicially. This has no doubt led to a miscarriage of justice. For this reason along with other well reasoned details in the leading judgment, I agree with my learned brother Ogebe JCA that the order made by the Judge of Kaduna State High Court in her Ruling of 28th November, 1996 in Suit No. KDH/KAD/398/95 be set aside. I also abide by the consequential orders of my learned brother including his order as to costs.
Appeal Allowed.
Appearances
- B. Daudu, SAN
B. Ajao (Mrs) For Appellant
AND
- Mahmood For Respondent
