BAYO ODULANA V. CHIEF NURUDBEN ADISA OLADEJO & ORS
(2012)LCN/5511(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of June, 2012
CA/L/989/10
RATIO
WORDS AND PHRASES: MEANING OF THE TERM “STATUS QUO”
The term “status quo” is aptly defined as “the situation that currently exists” – see Page 1448 of the Blacks Law Dictionary, Eight edition. PER RITA NOSAKHARE PEMU, J.C.A.
APPEAL: CIRCUMSTANCES THE COURT OF APPEAL WILL INTERFERE WITH THE EXERCISE OF DISCRETION OF THE TRIAL JUDGE
The court of Appeal will interfere with the exercise of the discretion of a trial Judge on the Grounds which can safely be termed thus, where:
(1) he has made an error of law,
(2) he has made an error of legal principle
(3) he has made an error of fact
(4) he has mismanaged relevant and irrelevant matters or
(s) he has arrived at an unjust result. PER RITA NOSAKHARE PEMU, J.C.A.
APPEAL: REQUIREMENT FOR A PARTY TO SUCCEED ON APPEAL AGAINST THE EXERCISE OF DISCRETION OF THE LOWER COURT
Decidedly, for a party to succeed on Appeal against the exercise of discretion of the lower Court, the Appellant must show that, that Judge exercised his discretion wrongfully which occasioned injustice to him. PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
INYANG JOHN OKORO Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
BAYO ODULANA (ALIAS NIGANGA) Appellant(s)
AND
1. CHIEF NURUDBEN ADISA OLADEJO
2. DR. (EVANG.) FELIX SALAWU AGUNBIADE
3. CHIEF ADEMOLA ALABI
(for themselves and on behalf of OLUSHOSUN FAMILY) Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of Honourable Justice O.A. Akinlade dated 5th August, 2010, whereby the court made an order that status quo be maintained by all the parties, pending the hearing of the various applications before Honourable Justice Kayode Ogunmekan.
Pursuant to an originating Summons dated 31st August, 2009, the 1st, 2nd and 3rd Respondents (claimants in the court below) instituted an action in the High Court of Lagos State, Ikeja Judicial Division against the Appellant (1st Respondent in the Court below) as well as Persons Unknown for the following
“AN ORDER that the Claimants do recover possession of a parcel of land lying and being at Olushosun Village, Ikeja Local Government, shown in Plan No, AT/LA1831A made by Surveyor W.T. Adeniyi, dated 14th May, 1984 (No. 704, Kudirat Abiola Way, Olushosun Town).
On the ground that they are entitled to possession, and that the persons in occupation are in occupation without their licence, or consent.
On the 8th of October, 2009, the 1st Respondent (Appellant in the present Appeal) Bayo Odulana (alias Niganga) entered a memorandum of appearance.
On the 8th of October, 2009, the following persons sought to join as the 3rd to 6th Defendants viz:
(1) Mrs. Olufunmi Olajide
(2) Mrs. Kehinde Kester
(3) Mr. Olaseun Odulana and
(4) Nigerian Wood Preservation Industries Ltd.
On the 17th of November, 2009, the Claimants (now Respondents in this appeal) filed a motion for an order inter alia, of Interlocutory Injunction, restraining the Defendants (Appellant in this appeal), by themselves, their agents, workers, servants, privies and assigns, from erecting buildings or structures, and constructing new buildings or structures, on the parcel of land shown in Plan No.AT/LA/1831A made by Surveyor W.T. Adeniyi and plan No. LSAT/LA89 dated 29th April, 2009 drawn by Surevor W.T. Adeniyi.
On the 22nd of January, 2010, the Appellant filed [as 1st Respondent/Appellant in the lower Court) a motion for an order, striking out his name as the 1st Respondent in that suit i.e suit No. ID/697M/2009, pending at the lower Court.
On the 2nd of June, 2010, the Claimants/Appellants filed a motion for accelerated hearing of the motion for Interlocutory Injunction dated 13th November, 2009 and filed on the 17th of November, 2009.
On the 19th of July, 2010, by motion ex-parte, the Claimants/Appellants sought an order of the Court below, directing suit No. ID/697M/2009, to be heard by the vacation Judge, during the period of vacation, and for such order or other orders as this Honourable Court may deem fit to make in the circumstances.
Again by motion ex-parte filed on the 27th of July, 2010, the Claimants/Appellants sought an order of Court, directing the suit to be heard by the vacation Judge, during the period of vacation.
These, were the motley of applications pending, when on the 5th day of August, 2010, P.O. Jimoh- Lasisi- SAN, for the Claimants/Appellants by oral application, prayed the Honourable Court for an order of Status Quo, to be maintained in order to preserve the RES in the Suit, pending the hearing and determination of the Interlocutory Injunction already filed.
Hon. Justice O.A. Akinlade, having listened to the submission of learned Counsel for the respective parties, ordered as follows in an enrolled order of Court viz:
“IT IS HEREBY ORDERED:.
That status quo be maintained by all the parties pending the hearing of the various applications before my learned brother Honourable Justice Kayode Ogunmekan…”
Pages 147 -152 of the Record of Appeal.
The judge adjourned the matter to the 1st of November, 2010, and ordered that the case file be forwarded to the Honourable Chief Judge, for reassignment to the Presiding Judge in the Suit.
The learned trial Judge had held inter alia that “… Upon hearing the submission of both Counsel and a careful perusal of the various applications before the Court, it is the opinion of the Court, that this Honourable court is not in a position to commence the hearing of the various applications and deliver its rulings during this vacation period. In view of the above observation, it is hereby ordered that status quo be maintained by all the parties, pending the hearing of the various applications before my learned brother, Hon. Justice Kayode Ogunmekan, I so hold.”
This is the decision that has stirred the Appellant to appeal it.
Being dissatisfied with same, he filed Notice of Appeal on the 19th of August, 2010, with a sole Ground of Appeal. I shall reproduce same verbatim.
“The learned trial Judge erred in law when she made an order that status quo be maintained by all the parties pending the hearing of the various applications before Honourable Justice Kayode Ogunmekan.”
The Appellant has sought the following relief from this Court. It is for an order setting aside the decision, and the order contained in the Ruling of the High Court of Lagos State in SUIT NO. ID/697M/2009 delivered by Akinlade J. on the 5th day of August, 2010.
The Appellant filed its Brief of Argument on the 1st of December, 2010, with a sole issue for determination reflected at Page 6 – Paragraph 3.0 of his Brief of Argument. The brief is settled by Olatunde Adejuyigbe Esq.
The sole issue for determination is
“Whether in view of the antecedents and entire circumstances of this suit, the learned Judge, AKINLADE J, exercised his discretion judicially and judiciously when he made an order that status quo be maintained by the parties pending the determination of the various applications before KAYODE OGUNMEKAN J.”
The 1st to 3rd Respondents filed their joint Brief of Argument on the 7th of March, 2012. It is settled by P.O. Jimoh- Lasisi SAN. At Page 2, Paragraph 2.00 of his Brief of Argument, is his sole issue for determination which is
“whether the order dated 5th August, 2010, directing status quo be maintained by all parties pending the hearing of all interlocutory applications occasioned a miscarriage of justice to the Appellant who has not shown any legal grievance against the said order to warrant the setting aside of the said order by this Honourable Court.”
The 4th Respondent, “Persons Unknown” filed no Brief of Argument.
A reply brief was filed by the Appellant on the 9th of March, 2012.
I can safely say that the issue proffered by the 1st -3rd Respondents are the same as that proffered by the Appellant, and I shall adopt the Appellant’s issue as couched as mine, in the consideration and determination of this appeal. On the 3rd of May, 2012 learned Counsel for the parties adopted their respective Briefs of Argument. Learned Counsel for the Appellant, Olatunde Adejuyigbe Esq., submits that the record was transmitted to this Honourable Court on the 18th of October, 2010. He adopts his brief of argument. That there is a reply brief filed on the 9th of March, 2012. He also adopts same. He urges this Honourable Court to allow the Appeal.
On his part, Chief Jimoh-Lasisi, SAN, for the 1st-3rd Respondents, adopts his brief of argument filed on the 7th of March, 2012, and relies on the arguments therein. He urges this Honourable Court to dismiss the appeal.
In arguing this appeal, learned Counsel for the Appellant contends, that whenever an application is made to a Court to order parties to maintain the status quo in relation to a RES, it is imperative for the Court to ascertain the state of the RES in determining whether or not the application should be granted. That the Court also must consider the antecedents and entire circumstances of the suit.
He argues that in determining whether or not, the order made by the lower court is proper, this court is urged to consider the facts and antecedent of the suit at the time the lower court made its order.
He contends that the 1st – 3rd Respondents instituted their action against the Appellant on the 31st day of August, 2009. The status quo as at date as reflected in the affidavit in support of the Originating Summons, is as gleaned from Paragraph 43 of the said affidavit and it reads thus:,
“43 .The Defendants have encroached on the land recently and have embarked (sic) clearing the land and carrying out erection of buildings on the land without the licence or consent of the claimants.
He argues that the 1st -3rd Respondents, were aware that buildings have been erected on the land, but wondered why they failed to file an application for an order of Interlocutory Injunction, at the time of the institution of the action. That from the depositions in Paragraphs 6, 7, and 9 of the affidavit in Support of the application for an order of Interlocutory Injunction, the status quo on the land at the time the application for injunction was filed can be summarized thus:
1. “The Appellant was about to complete the construction of some buildings and has begin new building on the land.
2. The erection of the new buildings is drastically changing the nature of the land in dispute.
3. The changed state of the land was reiterated in paragraph 14 of the Affidavit of urgency deposed to ‘KEHINDE JAIYESIMI on the 27th day of July, 2010, when he said.
“14 The construction of the new building, has changed entirely the nature of the land and the Defendants/Respondents need to be restrained from carrying out further, any construction on the land”.
He argues that if the learned trial Judge had averted his mind to the changed state of affairs on the land in dispute, as shown in the affidavits placed before the Court by the 1st -3rd Respondents, he would have seen the improprietary of making an order that status quo be maintained by the parties, almost a year after the action was instituted by the 1st-3rd Respondents.
Learned counsel has argued, that the learned trial Judge had exercised his discretion, and made an order, that party should maintain the status quo without considering the antecedent of the suit, and factual situation of the land, as disclosed in the affidavits before the Court.
He argues that the Appellant had by an application dated 22nd day of January, 2010, sought an order striking out his name from the suit on the premise that he, was improperly joined to the suit. That in the affidavit in support of the application, the Appellant stated clearly, that he has never been in occupation of the land, and has no interest therein. That same fact was alluded to in the counter affidavit deposed to by the appellant on the 22nd of January, 2010, in response to the 1st – 3rd respondents’ application for order of Interlocutory Injunction.
He submits that this fact was ignored by the learned trial Judge, and that it is improper for the Court before whom there is an application to strike out the Appellant’s name from the suit, to proceed to, make an order that status quo be maintained by the parties.
citing ADEOGUN v. FASOGBON (2008) 17 NWLR (pt.1115) 149 at 193, where Oguntade J.S.C, observed that
“It is a settled principle of law that a court would not act in vain or give an order which cannot be enforced.”
he also cites U.B.A. PLC v. JARGABA (2007) 11 NWLR (pt. 1045) 247 at 267 where I.T, Mohammed J.S.C. said
“courts of law do not make orders in vain or in vacuum.”
He submits that it is on record that the Administratixes and Administrator of the Estate of Chief A.F. Odulana, and Nigerian Wood Preservation Industries Ltd, had since the 8th day of October, 2009 filed an application for an order, joining, them as the 3rd -6th Respondents, which application preceded the 1st -3rd Respondents application for order of Interlocutory Injunction.
He further submits that the Court proceeded to make the order, when those who will be affected by the order, have not been joined as parties to the suit.
He refers to paragraphs 8, 9, 10, and 11 of the affidavit in support of the application for joinder, which paragraphs I deem it pertinent to reproduce, especially paragraphs 9, 10 and 11. The affidavit is deposed to by OLUSEUN ODULANA.
paragraph 9
“After the death of our father the 1st & 2nd Appellants and I were appointed A.s the Administratrixes and administrator respectively of his estate and we have been in lawful possession of the land at all times without any obstruction or interference by the claimants herein or any other person”.
Paragraph 10
“We, the Appellants wish to be joined as Respondents in this suit so that he can be heard before an order for possession or other orders are made by this Honourable court in respect of the land which is the subject matter of this Suit.”
Paragraph 11
“The claimants are well aware that the applicants herein have been in lawful possession of the land for several years and have exercised several acts of possession on the land as shown by the office building of the 4th appellant on the land”.
Learned counsel submits that the learned trial Judge exercised his discretion wrongfully, in granting the order that parties should maintain status quo, as he failed to take into consideration all relevant matters.
He urges Court to answer the lone issue for determination in the negative and resolve same in favour of the Appellant.
In his reply brief, learned Counsel submits that the issue for determination formulated by the 1st-3rd Respondents in their brief of argument is incompetent, and should be struck out by this Honourable Court, as same does not arise from the lone Ground of Appeal in the Notice of Appeal dated 19th August, 2010.
That the 1st to 3rd Respondents should have filed a Cross Appeal, instead of formulating an issue for determination, which is not related to the Ground of Appeal.
He urges Court to strike out the issue, for determination, as formulated by the 1st -3rd Respondents.
He submits, that the submissions by the 1st to 3rd Respondents’ Counsel in his brief of argument, that the Appellant is not a person aggrieved by the order made by the lower Court on the 5th day of August, 2010, and therefore not entitled to appeal against the order, is utterly misconceived.
That it is on record that the 1st to 3rd Respondents procured the order made by the lower Court, on the premise, that the Appellant is carrying out a rapid construction on the land in dispute, and ought to be restrained by the Court.
He submits that the order of Court directing parties to maintain status quo on the land in dispute, was made against the Appellant, and other parties and he is entitled to appeal against the same.
He contends that the implication of the order made by the lower Court on the 5th day of August, 2010, is that all the parties must ensure, that the state of land in dispute, is not altered until the pending applications are heard by the Court. In other words, an obligation is imposed on the Appellant to ensure that no further construction, or erection of building, is carried out on the land.
That in the event that the status quo is not maintained, the court will be at liberty to invoke its disciplinary powers, to punish the Appellant for contempt of court since the order of court was influenced by the representations made by the 1st – 3rd Respondents, that the buildings on the land were being erected by the Appellant. Citing TOMTEC (NIG) LTD V. F.H.A. (2009) 18 NWLR PT. (1173) 358 at 375 where Onnoghen JSC had this to say “It is settled law that where a party fails or decides not to appeal against any decisions of a Court of law, he is deemed to have accepted that decision and is consequently bound by it”
This is why he has appealed the decision.
In his Brief of Argument learned Counsel for the 1st- 3rd Respondents submits, that all that the learned trial judge did, was to grant an order that status quo be maintained by all parties pending the hearing of the various applications by Hon. Justice Kayode Ogunmekan.
That the Ruling, the subject matter of this Appeal, is at Pages 151-152 of the Record of Appeal.
He submits that the order made by the learned trial Judge is the preservation of the RES in dispute, pending the determination of the various applications before the trial Judge, Honourable Justice Kayode Ogunmekan.
He submits that this Order dated 5th August, 2010, was made during the vacation period. That the various applications were pending in Court when the matter came up before the court on the 5th of August, 2010. The said Applications were viz:-
1. Claimants’ motion for injunction dated 13th November, 2009 and filed on 17th November, 2009 pages 59 – 78 of the Record of Appeal.
2. Applicant’s motion dated 8th October, 2009 filed on 9th October, 2009 seeking an order to be joined as 3rd – 6th Defendants – Pages 96 – 100 of the Record of Appeal.
3. 1st Respondents’ motion dated 22nd January, 2010, seeking an order striking out the name of Bayo Odulana as the 1st Respondent. Pages 79 – 95 the Record of Appeal.
Learned counsel submits that the Appellant has failed to demonstrate, how he is aggrieved by the order, to maintain status quo, pending the hearing of the various applications before Honourable Justice Kayode Ogunmekan.
He submits that, from words from the Appellant’s own lips, that he is not in possession of the land in dispute, he has no legal grievance to complain about the order that parties maintain status quo, pending the determination of the various applications before Honourable Justice Kayode Ogunmekan.
citing MOBIL PRODUOING UNLTD v. MONOKPO (2003) 12 SC. part 11, page 50 at 66 ….
Where Uwaifo JSC had this to say:
“It is true that the Judgment of the trial court which was affirmed by the court below was given against only the second Defendant. In effect the first Defendant is not an aggrieved party that can appeal against the judgment of the Court below to this Court simply on the basis that it was a party to the proceedings in which judgment was given in reliance on the provision of section 233 (5) of the 1999 Constitution which says that “Any right of appeal to the Supreme Court from the decision of the Court of Appeal conferred by this section shall be exercisable in the case of civil proceedings at the instance of a party thereto.”
He submits that this provision must be understood to apply to an aggrieved person or party of the various applications before Honourable Justice Kayode Ogunmeken.
He refers to Page 67 of the same report where Uwaifo J.S.C. said
“A party to proceedings cannot appeal a decision arrived thereat which does not wrongfully deprive him of an entitlement or something which he had a right to demand. Unless there is such a grievance, he cannot appeal against a Judgment which has not affected him since the whole exercise may turn out to be academic. Under no circumstances can it be argued that a party to proceedings who has not been affected by a decision may nevertheless appeal against it merely as a party, see for instance AKINBIYI v. ADELABU (1956) SCNLR 109, where it was recognized that a person entitled to appeal is a person aggrieved by a decision i.e. a person against whom a decision has been pronounced which deprived him of some right.”
He submits that the Appellant is not a person aggrieved by the order of 5th August, 2010, and therefore he is not entitled to appeal the said order.
I have read the respective Briefs of Argument of learned counsel in this appeal, taken a cursory look at the sole Ground of Appeal and indeed the particulars of error inherent therein. As earlier observed, I have adopted the Appellant’s brief as mine.
Perhaps it is pertinent to reproduce the Ruling of the learned trial Judge, as reflected at-pages 151 – 152 of the record of Appeal.
“RULING
I have looked at the entire file and the process therein I have equally observed that the applicants by their application dated 16th July, 2010 are seeking for an order of this Honourable court to hear this case during vacation, an application which the court has interpreted to mean that the entire suit should be heard during vacation.
However from the submission of learned silk Mr. Jimoh Lasisi SAN what the applicants intend to do during this vacation is to move their Motion on Notice for Interlocutory Injunction, whereas learned counsel for the 1st Respondent/Applicant and the person seeking to be joined submitted that his application for joinder should be taken 1st by this Honourable Court before the Motion on Notice for Interlocutory Injunction can be heard. Upon hearing the submission of both Counsel and a careful perusal of the various applications before the court, it is the opinion of the Court that this Honourable Court is not in a position to commence the hearing of the various applications and deliver its Rulings during this vacation period. In view of the above observation. It is hereby ordered that status quo be maintained by all the parties pending the hearing of the various applications before my learned brother Hon. Justice Kayode Ogunmekan, I so hold. Hon. Justice O.A. Akinlade Judge.
5/8/2010.
This order was given after Jimoh Lasis, SAN for the claimants/Applicants, had on the 5th of August, 2010, applied to move his application for an interlocutory injunction.
The Court then observed
“I have observed in your application that you wanted the Court to hear the entire suit, your application is for an order directing suit No. ID/697M/2009 to be heard during vacation. I do not see how this High court can take over this case during vacation.”
Jimoh Lasisi then said
“That is not our position. We are only seeking for an order of the High court to preserve the RES in this case we only want to move our application for Interlocutory Injunction. We agree that the court cannot take over the entire case however we pray that the High court should grant an order that parties should maintain status quo pending the hearing of all application.”
Pages 149 -149 of the Record of Appeal-above.
The order of court appealed, as I understand it, is to maintain the status quo “pending the hearing of the various applications” which were pending, and not “pending the hearing of the substantive suit”. There is a whole world of difference between these two.
From records, it seems to me that the matter was still at Interlocutory stage.
It is apparent, that the issue of whether the Appellant is, or is not in possession of land in dispute was premature at that stage.
Moreso the Appellant had said that he has no control over those who are in possession of the land in dispute. If (as the Appellant contends) he has never occupied the land in dispute and has no interest in it, then why should he be irked by that order of the trial court.?
A cursory look at Pages 79-81 of the Record of Appeal, which is the motion filed by the Appellant, shows that it is for an order striking out his name as the 1st Respondent in the suit, the subject matter of this Appeal.
In Paragraph 6 of the Affidavit in support of the motion, he had this to say:
“I am not the person in possession and occupation of the land in dispute and my name was improperly joined to this suit as the 1st Respondent.”
The sole Ground of Appeal had been earlier reproduced. I shall, at the expense of repetition yet reproduce same.
GROUND OF APPEAL:
“The learned trial Judge erred in law when she made an order that the status quo be maintained by all the parties pending the hearing of the various applications before Honourable Justice Kayode Ogunmekan”.
In the Particulars of error, to this sole Ground, Paragraphs III and IV have this to say:
Paragraph III “There is overwhelming affidavit evidence before the court that the Appellant is not in possession of the land in dispute. The order made by the court is tantamount to making an order in vain.”
Paragraph IV “It is improper for a Court to make an order which will invariably affect the proprietary rights and interest of non parties to the suit as the learned trial Judge did.”
With respect the grouse in the Ground of Appeal is at variance with Paragraph IV in the particulars of error. Indeed it is a contradiction in terms.
If the Appellant is quarrelling that the learned trial Judge’s order touched all the parties, why should Paragraph IV of the particulars of error, refer to non parties?.
The learned trial Judge had merely said that status quo be maintained pending the hearing of the applications before it. No applications had been taken and the matter has not reached the stage of hearing of the substantive suit.
I cannot see, how, or where, by this order of Court, any miscarriage of justice was occasioned to the Appellant.
I am of the view that there is a distinction between an order to maintain status quo pending the hearing of pending applications and that pending the hearing of the substantive suit.
I agree with submission of learned Counsel for the 1st – 3rd Respondents that the authorities cited by the learned counsel for the Appellant are not relevant to the situation before this court.
In the case of SUN INSURANCE (NIG) PLC v. LMBS LTD 2005 12 NWLR PT. 940 at 608, it was a situation that called for the court ordering the maintenance of STATUS QUO pending the determination of the substantive action. In that case it was observed that
“The status quo to be maintained is the position or situation of the parties as at the time of filing the action so that the res or subject matter thereof would not be altered during the pending of the suit.”
It is trite that in an application for Interlocutory Injunction, the Applicant must establish inter alia, his legal right to bring the application ADESINA V. AROWOLO (2004) 6 NWLR PT. 870 PG. 615 – 616.
It was the Respondents (Claimants/Applicants) at the lower Court who filed a motion for an order of accelerated hearing of the motion for Interlocutory Injunction dated 13th November, 2009 and filed on the 17th of November, 2009. The Appellant did not file same.
It is necessary to restate, and reiterate, the general principle of law, that the reason a court of law can grant an Interlocutory Injunction, is to exercise its discretion to keep the parties (who are acclaimed parties to the suit), in status quo pending the determination of the substantive suit/action.
In ONYESOH v. NNEBEDUN (1992) 3 NWLR (pt. 229) 315, it was held inter alia that the subject matter or res in relation to an order of Interlocutory comprehends the corporeal and incorporeal objects of whatever nature, sort, or species, and extends to any right which a party may exercise over such a res. – see ILECHUKWU v. IWUGO (1989) 2 NWLR, (pt.101) 99.
I had observed that the Appellant, in view of the fact that he had deposed to facts in an affidavit that he is not in possession of the land in dispute, and had applied that his name be struck out from the suit, has no interest in the matter before the lower Court, and indeed had no right to appeal the order of the lower court. He simply cannot approbate and reprobate. He cannot blow hot and cold.
Moreso, the order made was to maintain the status quo “pending the hearing of the various applications before Hon. Justice Kayode Ogunmeken”.
This, in my view was a harmless piece of order, and to appeal it was utterly unnecessary.
The term “status quo” is aptly defined as “the situation that currently exists” – see Page 1448 of the Blacks Law Dictionary, Eight edition.
The Appeal is misconceived and is one that should not have been filed.
The order made by the learned trial Judge is not one calculated to be and/or consistent with the substantial rights of any of the parties to the suit, moreso the Appellant who indicated along the way, that he should not have been a party, and indeed sought a striking out of his names from the suit. The court of Appeal will interfere with the exercise of the discretion of a trial Judge on the Grounds which can safely be termed thus, where:
(1) he has made an error of law,
(2) he has made an error of legal principle
(3) he has made an error of fact
(4) he has mismanaged relevant and irrelevant matters or
(s) he has arrived at an unjust result.
With respect, nowhere has the learned trial Judge fallen short of the standard required by him, in making the order which he did on the 5th of August, 2010.
In making that order, the learned trial Judge exercised a judicial discretion, on fixed principles which accords with reason and justice, and not according to Personal opinion or dictates affected by questions of benevolence and sympathy.
Decidedly, for a party to succeed on Appeal against the exercise of discretion of the lower Court, the Appellant must show that, that Judge exercised his discretion wrongfully which occasioned injustice to him.
Let me say here, that it is almost the fashion now, for parties to rush to the court of Appeal at any twist and turn, ostensibly with at sorts of applications, most of them, {such as the present one}, fraught with frivolity and in an attempt to create the spurious impression, that the applications are ones that are worthy of consideration by this court. The result is that the Court of Appeal, is inundated with all sorts, and kinds, and complexions of applications that hold no water. This is highly depreciated.
This, is one of such applications. What is wrong with a learned trial Judge saying that applications should be put on hold, while the status quo be maintained? It was purely an exercise of his discretion.
The appeal deserves to be dismissed and same is hereby dismissed in its entirety, as I find no merit in it. The lone issue for determination is resolved in favour of the 1st – 3rd Respondents and against the Appellant.
In consequence, the order in the Ruling made by Hon. Justice O.A. Akinlade on the 5th of August, 2010 is hereby affirmed. No order as to costs.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: The reasoning and conclusion reached in the judgment just delivered by my learned brother, the Hon. Justice R.N. Pemu, JCA is in accord with mine.
Hence, having read before now the submissions of the learned counsel, contained in their respective briefs of argument vis-a-vis the record of appeal, as a whole, I cannot but come to the inevitable conclusion that the instant appeal is unmeritorious.
Consequently, the appeal is hereby dismissed by me. The ruling of the lower court delivered by the Hon. Justice O. A. Akinade on 05/08/10, is hereby affirmed.
No order as to cost.
JOHN INYANG OKORO, J.C.A.: I read before now the judgment of my learned brother Pemu, JCA just delivered and I agree that this appeal lacks merit for which I agree that it be dismissed, I also make no order as to costs.
Appearances
OLATUNDE ADEJUYIGBE ESQ., with him are O.A. ADEJUYIGBE ESQ., and O.T. DIKEFor Appellant
AND
P.O. JIMOH LASISI (SAN) with him are M.B. JIMOH AKOGUN and GANI AYUBAFor Respondent
