CHIEF M. O. ABBI v. CHIEF (PRO) J.J.T. PRINCEWILL & ORS (2011)

CHIEF M. O. ABBI v. CHIEF (PRO) J.J.T. PRINCEWILL & ORS

(2011)LCN/4561(CA)

In The Court of Appeal of Nigeria

On Monday, the 23rd day of May, 2011

CA/PH/19/2007

RATIO

JUDICIAL PRECEDENT: WHETHER A TRIAL JUDGE IS BOUND TO ABIDE BY JUDICIAL PRECEDENT AND TO BE GUIDED BY WELL SETTLED JUDICIAL PRINCIPLES OF LAW

…the learned trial Judge was bound to abide by judicial precedent and to be guided by well settled judicial principles of law. One of such principles is that the court of law, whilst trying to do justice between the parties before it, must decide their cases in accordance with well-settled principles of law. This point was reiterated by the Supreme Court in OKAFOR v. IDIGO (1980) 15 NSCC 360 AT 385 and EDUN v. ODAN (1980) 12 NSCC 279 at 287. Judicial authorities are abound which set out principles for restorative injunction, the relief sought by the application of the Appellant heard and dismissed by the trial court. One of such cases is GOVERNOR OF LAGOS STATE V. OJUKWU (1986) 1 NWLR (pt. 18) 621 at 636 7. PER EJEMBI EKO, J.C.A

POWER OF COURT: NATURE OF THE INHERENT POWER OF THE COURT UNDER SECTION 6(6) OF THE 1999 CONSTITUTION AS TO ISSUANCE OF RESTORATIVE INJUNCTION

The Inherent power of the court under section 6(6) of the 1999 Constitution to issue restorative injunction is two fold. Firstly, it is to enable the court protect itself from unwarranted interference, and secondly, to sustain its dignity in order to promote fair dispensation of justice. The learned trial Judge’s attention was drawn to the cases of ERISI v. IDIKA (1987) 4 NWLR (pt. 66) 503 at 512 and ADIGUN V. A.G. OYO STATE (1987) 2 NWLR (pt. 56) 197 at 229 and several others more at pages 264 265 of the Record. PER EJEMBI EKO, J.C.A

RESTORATIVE INJUNCTION: WHAT THE PRINCIPLE OF RESTORATIVE INJUNCTION ENTAILS

Let me restate the principle for restorative injunction further, where proceedings are pending before a court wherein injunctive reliefs are sought, the party against whom those injunctive reliefs are sought is under obligation to refrain from doing that which is sought to be restrained, even when no temporary order of injunction may have been granted. See EZEGBU v. F.A. T.B. (1991) 1 NWLR (pt. 220) 669 at 725; ABIODUN V. CHIEF JUDGE, KWARA STATE (2008) ALL FWLR (Pt.44B) 340 at 385, ADEFARATI, V. GOVERNOR, ONDO STATE (2006) 1 NWLR (pt. 960) 145 at 157; and F.A.T.B v. EZEGBU (1992) 9 NWLR (pt.264) 132 at 147. It is now therefore trite that no one is allowed to interfere with the judicial process or take steps during the pendency of a suit that will tend to whittle down or impinges on the powers of the court before which the proceedings subsist , or which will in any way frustrate its course. The court frowns at attempts by a party to the proceedings before it to overreach his adversary and create an impression that the court has been compromised. PER EJEMBI EKO, J.C.A

RESTORATIVE /MANDATORY INJUNCTION: THE PURPOSE OF RESTORATIVE OR MANDATORY INJUNCTION

JUSTICES:

MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

CHIEF M. O. ABBI
(For himself and as representing (the King Abbi Royal House, the King (Makers of the Kalabari Kingdom, Buguma) – Appellant(s)

AND

1. CHIEF (PRO) J.J.T. PRINCEWILL
2 CHIEF DAGOGO PRINCEWILL
3 CHIEF S.O. PRINCEWILL
4. CHIEF O.T.K.D. AMACHREE – Respondent(s)

EJEMBI EKO, J.C.A (Delivering the Leading Judgment) On 19th December, 2005 Hon. Justice J. M. Kobani of the Rivers State High Court delivered his ruling in the application of the Appellant, as the named Plaintiff for himself and as representing the King Abbi Royal House and the Kingmakers of the Kalabari Kingdom, Buguma, which sought an order restoring the status quo of the parties as at 29th March, 2000 when the suit was commenced, The target of the restorative injunction sought was the purported installation and recognition of the 1st Defendant/Respondent as the Amanyanabo of Kalabari on the 23rd March 2002, which were done not only during the pendency of the suit but also inspite of the order of Interlocutory Injunction made on 31st July, 2000. The order made on the said 31st July,2000 restrained all parties to the suit from taking any step in furtherance of and/or in selecting, electing, anointing and/or installing any person whatsoever as the Amanyanabo of Kalabari without the consent, knowledge and participation of all the parties in the suit and all the Chiefs of Abbi Royal House Council of Chiefs, the Karibo Group of Houses, the Buguma Council of Chiefs and the Kalabari National Assembly (se Kobiri) or any other affected body or bodies or Houses or Group of Houses pending the peaceful resolution of the dispute between the parties themselves or the hearing and determination of the substantive suit.
The learned trial Judge refused to restore the parties to the status quo as at 29th March, 2000 and ordered that the status quo to maintain by the parties was “the status quo as at today” (i.e 19th December, 2005). That status quo was the status quo altered by the purported Installation and recognition of the 1st Defendant/Respondent as the Amanyanabo of Kalabari on the 23rd March, 2002 during the pendency of the suit and the subsistence of the interlocutory Injunction granted on the 31st July, 2000. In effect the ruling of 19th December, 2005 had reversed the order made on 31st July, 2000. No party asked for the review of that order made on the 31st July, 2000.
The learned trial Judge at page 292 of the Record, In his Ruling, acknowledged the subsistence of the order of Interlocutory Injunction when he held that the restraining order of 31st luly, 2000 did not lapse with the case starting de novo”. This appeal is against the ruling delivered by the learned trial Judge on 19th December, 2005.
The approach adopted by the learned trial Judge in the ruling is one of a peace-maker rather than that of a judicial officer. He had prefaced the ultimate ruling with a doctrine of necessity. At page 296 he had stated that “It must be recognized that what is regular in principle may not always be expedient” Proceeding on this line he stated thereafter as follows:-
“From the affidavit evidence and Exhibit A and B, it is safe to belief that the parties or at least an overwhelming majority desire a peaceful settlement of this dispute. That is so because on the face of the records both parties are all chiefs of the Abbi Royal House of Buguma and King makers of Kalari Kingdom. As such they know that only one of them can be King at any one time, no matter the degree of acrimony. That is why it is desirable for the parties to resolve the dispute themselves so that there would be no victor and no vanquished.
The application seeks a restoration of the status quo as at 29th March, 2000 almost 6 years ago. Going back almost 6 years in time is not likely to ensure lasting peace. It used to be said that Judges should apply the law to the law to the letter and damn the consequences.
Oputa, JSC (Rtd) however, in his judicial Lectures 1990 page 41 had these words of caution.
A decision that can be regarded as legally and theoretically correct but which in reality will set the work place ablaze can not be regarded as mature decision.
To this, I would add that law is not an end in itself but only a means to an end which is justice, peace, order and good government.
In consonance with that view of law and in the circumstances of this case, a 6 year retreat into history is not likely to conduce to the law not being an end in itself. I believe it will be more in consonance with reality to take cognizance of the distinguishing features of this case and make progress therefrom. I refuse to make an order that will take the Kalabari Kingdom back to the 20th Century when the rest of the World is taking giant strides into the 21st Century.
Rather than order a return to status quo as at 29th March, 2000, I order that the status quo as at today (i.e 19th December, 2005) be maintained while the parties make a more determined effort to fashion out an acceptable settlement of the dispute or put their case before the court for a determination on the merits. For avoidance of doubt, this is not a declaration of any body as the Amanyanabo of Kalabari as that was not the issue for determination in this application. For the above reasons this application fails.
Not satisfied with this Ruling the Appellants, as the Plaintiff/Applicants filed their Notice of appeal on 23rd December, 2005 with two grounds of appeal. They did not file the Appellant’s Brief of Argument within the time prescribed by the Rules of this court. However, on 22nd December, 2008 they brought an application for enlargement of time within which to file the brief. The application was granted on 5th October, 2010, and the Appellants’ Brief settled by E.C. Ukala, SAN and filed on 22nd December, 2008 was deemed filed and served on the same 5th October, 2008. The Respondents did not file any Brief of Argument. on the said 5th October, 2010 the appeal was set down for hearing on 11th April, 2011. The Respondents, though aware of the adjourned date, were not in court for hearing of the appeal. On the said 11th April, 2011 Dr. O. Ikpeazu, SAN, who had taken over from E.C. Ukala, SAN as Appellants’ counsel, merely identified the Appellants ‘ Brief and thereafter adopted it as the Appellants’ argument in the appeal and then urged that the appeal be allowed.
Only one issue for determination was formulated from the two grounds of appeal in the Appellants’ Brief. That is:-
whether the learned trial Judge was right when he refused to exercise his discretion to restore the status quo as at 29th March, 2000 especially in refusing to set aside the purported installation and recognition of the 1st Defendant/Respondent as the Amanyanabo of Kalabari while this suit was pending and after the Defendants have had due Notice of the pending suit and the Injunction granted therein?
The Respondents filed no brief. As I stated earlier they were aware from 5th October, 2010 that this appeal was set down for hearing on 11th April, 2011.
As submitted by the Appellant the learned trial Judge was bound to abide by judicial precedent and to be guided by well settled judicial principles of law. One of such principles is that the court of law, whilst trying to do justice between the parties before it, must decide their cases in accordance with well-settled principles of law. This point was reiterated by the Supreme Court in OKAFOR v. IDIGO (1980) 15 NSCC 360 AT 385 and EDUN v. ODAN (1980) 12 NSCC 279 at 287. Judicial authorities are abound which set out principles for restorative injunction, the relief sought by the application of the Appellant heard and dismissed by the trial court. One of such cases is GOVERNOR OF LAGOS STATE V. OJUKWU (1986) 1 NWLR (pt. 18) 621 at 636 7.
The attention of the learned trial Judge was at page 281 of the Record drawn to this particular case. The Inherent power of the court under section 6(6) of the 1999 Constitution to issue restorative injunction is two fold. Firstly, it is to enable the court protect itself from unwarranted interference, and secondly, to sustain its dignity in order to promote fair dispensation of justice. The learned trial Judge’s attention was drawn to the cases of ERISI v. IDIKA (1987) 4 NWLR (pt. 66) 503 at 512 and ADIGUN V. A.G. OYO STATE (1987) 2 NWLR (pt. 56) 197 at229 and several others more at pages 264 265 of the Record. These authorities adumbrating the principles for restorative Injunction were brushed aside in the ruling dismissing the application. And this is rather unfortunate as an impression of insubordination and judicial impertinence has thus been created.
Let me restate the principle for restorative injunction further, where proceedings are pending before a court wherein injunctive reliefs are sought, the party against whom those injunctive reliefs are sought is under obligation to refrain from doing that which is sought to be restrained, even when no temporary order of injunction may have been granted. See EZEGBU v. F.A. T.B. (1991) 1 NWLR (pt. 220) 669 at 725; ABIODUN V. CHIEF JUDGE, KWARA STATE (2008) ALL FWLR (Pt.44B) 340 at 385, ADEFARATI, V. GOVERNOR, ONDO STATE (2006) 1 NWLR (pt. 960) 145 at 157; and F.A.T.B v. EZEGBU (1992) 9 NWLR (pt.264) 132 at 147. It is now therefore trite that no one is allowed to interfere with the judicial process or take steps during the pendency of a suit that will tend to whittle down or impinges on the powers of the court before which the proceedings subsist , or which will in any way frustrate its course. The court frowns at attempts by a party to the proceedings before it to overreach his adversary and create an impression that the court has been compromised.

Restorative or mandatory injunction by its very nature is designed to judicially instill discipline on an erring party in order for the court to maintain, restore and preserve it dignity and respect. see EZEGBU v. F.A.T.B (supra) at 725. The court exercises this power, inter alia, to undo what has been done by the erring party irrespective of what the court will decide on the merits eventually when the matter is heard. To illustrate this Kay. U of the English Court of Appeal in DANTEL v. FERGUS9N (1891) 2 Ch.27 at page 30 has this to say-
After the defendant had received notice on Saturday that an injunction was going to be applied for, he set a large number of men to work all night and through nearly the whole Sunday, and by Monday evening, at which time he received notice of an interim injunction, he had run up the wall to a height of thirty-nine feet. Whether he turns out at trial to be right or wrong, a building which he erected under such circumstances ought to be at once pulled down, on the ground that erection of it was an attempt to anticipate the order of the court. To vary anticipate the order of the court. To vary the order the order under appeal would be an encouragement to other people to hurry on their building in the home that when they were once up the court might decline to order them to be pulled down.
I think that this wall ought to be pulled down now without regard to what the result would be.
The situation is worse in the instant case. The 1st Defendant/Respondent was installed and duly recognized as the Amanyanabo of Kalabari on the 23rd March, 2002 during the pendency of the suit and in flagrant disobedience of the order of interlocutory injunction made on 31st July, 2000 that was subsisting. The said interlocutory order restrained all the parties from taking any step in furtherance of and/or in selecting, electing, anointing and/or installing any person whatsoever as the Amanyanabo of Kalabari pending either the peaceful resolution of the dispute or the final determination of the suit.
I earlier stated that it is apparent from page 292 of the Record that the learned trial Judge acknowledged that the order made on 31st July, 2000 was a subsisting order. The order was violated, and it is that order that the application before the learned trial Judge was trying enforce. That order is enforceable under section 287 (3) of the 1999 Constitution that provides.
287. (3) The decisions of the Federal High Court, a High Court and all other courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by other courts of law with subordinate jurisdiction to that of the Federal High Court a High Court and those other Courts, respectively.
When a court finds itself in this situation the remedy is clear. It will not only frown against it.
The court must in addition take a positive and mandatory act in order to instill judicial discipline on the erring party and in order to maintain, restore and preserve the dignity and respect of the court. This includes the undoing of what has been done by the erring party irrespective of what the court will decide on the merits, when the matter in properly heard.
see EZEGBU v. F.A.T.B (supra) at page 725; DANIEL v. FERGUSON (supra) at page 30. Every judge worth his office will not condone such a conduct that denigrates the authority, dignity and respect of the court. It goes without further emphasis that courts preserve their authority jealously. This is further bolstered by section 17 (2) (e) of the 1999 Constitution that says that in furtherance of the social order, which is founded an ideals of justice, among others, the independence, impartiality and integrity of courts of law shall be secured and maintained !
No other person maintains and secures the independence and Integrity of the courts more than the judges themselves who sit and preside in those courts.
As I stated in PEREMOBOWEI EBEBI & ORS v. D.C. DENWIGWE SAN & ORS (CA/PH/296/2010 of 30th March, 2011) the power the court has to issue restorative or mandatory orders to maintain status quo ante inheres are vests in the court by dint of section 6 (6)(a) of the Constitution. And further as stated in OKOYA v. SANTILI (1991) 7 NWLR (pt.206) 753 at 766- The jurisdiction Inheres in the court as adjudicator qua judex. The power is designed for the maintenance of the dignity of and integrity of the court, unless the court exercises disciplinary jurisdiction in appropriate circumstances, it will lose its dignity and integrity in the judicial process.The institution of the court which the law has placed in an exalted and sacred position, surrounded by all aura of legalism and sanctity, will be reduced to a toothless dog which can bark but can not bite.

The Appellant, through E.C. Ukala, SAN, made the point further when it was submitted that if the learned trial Judge had been guided by well settled principles of law he would have appreciated that expediency is not a good guide to justice. Appellant also submitted on authority of WILLAMS v. NWOSU (1994) 3 NWLR (Pt. 331) 156 at 176, and I agree, that it is not proper in administration of justice to push aside or sacrifice essential court procedures on the altar of expediency.
The issue of expediency, Appellant points out, was not raised by any of the parties. The decision of the learned trial Judge turned on this doctrine of necessity or expediency on which there was no iota of evidence from the parties nor were parties heard on it. In LONGE v. FBN (2010) 42 NSCQR 618 at page 633 the Supreme Court, per OGUNTADE, JSC, restates the law that courts of law must refrain from raising suo motu issues upon which their decisions would turn. The rationale for this is the concept of fair hearing which enjoins the court to confine itself to the issues raised by the parties and not to make a case for either party. See THE STATE v. OLADIMEJI (2003) 14 NWLR (Pt’839) 57 at page 69. The parties were not invited by the learned trial Judge to comment on this issue of expediency raised suo motu in the ruling. The practice of a court raising raising sou motu issues at judgment stage, which the parties did not raise, without the perilous risk of stepping into the arena of conflict, was seriously condemned by the Supreme court recently in AGBITI v. NIGERIAN NAVY (2011) 4 NWLR (Pt. 1236) 175 at 220. It can not be condoned.
There is no dearth of authorities to guide the learned trial judge in the application for restorative or mandatory injunction to restore the parties to status quo ante. He merely turned the other way to invoke the doctrine of expediency as a veneer for his judicial impertinence. It was unreasonable and perverse on his part to sacrilegiously review and reverse the previous order made on 31st July 2000 without any application for such review. Even if there was such application the learned trial judge, on principle of his being functus officio, would have acted reluctantly. There is no way a judge, acting arbitrarily, can ever enforce justice order and good government. Only the rule of law, and not lawlessness, anarchy and impunity, governs this realm. The rule of law includes the orders of court of law. The principles of expediency that is antithetic to, and a violent rejection of the rule of law, is nothing but arbitrariness and an invitation to judicial anarchy. The learned trial judge acted grossly in error when he condoned the indiscipline and lawlessness of the Defendants/Respondents who had flagranly flouted the subsisting injunctive order made on 31st July, 2000. The lone issue canvassed by the Appellant is hereby resolved in favour of the appellant and against the Respondent The appeal is hereby allowed. The Ruling, including the orders therein, made on 19th December, 2005 are hereby set aside. The Appellant made out a case for restorative or mandatory injunction sought. The order made on 31st July, 2000 remains extant. The purported installation and recognition of the 1st Defendant/Respondent are consequently set aside.
The parties, including the 1st Defendant/Respondent, shall be and are hereby reverted to the status quo ante imposed by the order of 31st July, 2000. The Chief Judge of Rivers State shall use his good offices to ensure accelerated hearing of the suit by a judge other than Hon. Justice J. M. Kobani.
The Appellant is entitled to costs, and I hereby order the Respondents jointly and/or severally to pay costs assessed at N60, 000.00 to the Appellant.

M. DATTIJO MUHAMMAD, J.C.A.: Having read in draft the lead judgment of my learned brother EKo JCA, I agree with him that the appeal is meritorious and allow same on the basis of his lordship’s reasonings and conclusions. I also abide by the consequential orders made in his lordship lead judgment.

T.O. AWOTOYE J.C.A.: I have had a preview of the draft of the judgment of my learned brother EJEMBI EKO JCA. I am in full agreement with his reasonings and conclusion.
I also allow this appeal for being meritorious.
I abide by the consequential orders including costs made in the lead judgment.

Appearances

Dr. O. Ikpeazu SAN with K. Allen – Nwokamma and A.C. Olakwere for the appellants (E. C. Ukala SAN settle the Appellants Brief). For Appellant

AND For Respondent