FEDERAL ROADS MAINTENANCE AGENCY V. BPS ENGINEERING AND CONSTRUCTION COY. NIGERIA LIMITED & ORS (2013)

FEDERAL ROADS MAINTENANCE AGENCY V. BPS ENGINEERING AND CONSTRUCTION COY. NIGERIA LIMITED & ORS

(2013)LCN/6368(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 4th day of June, 2013

CA/A/225/2012

RATIO

PRINCIPLES TO BE CONSIDERED BY THE COURT IN ÀN APPLICATION FOR INJUNCTION

The principles which a court would consider and which will guide it in an application for Injunction, are the same as those applicable to an application for stay of Execution – SHELL PETROLEUM VS. MONDAY AMADI (2011) 5 S.C.N.J. 1 at 35 – and they include –

(1) substantial legal issues must be disclosed in the grounds of appeal which must be recondite.

(2) it is necessary to preserve the res so as to avoid rendering the appeal nugatory.

WHETHER A COURT MAY DELVE INTO THE MERIT OF THE MATTER IN CONTROVERSY AT THE STAGE WHERE IT IS DEALING WITH INTERLOCUTORY APPLICATIONS

It is unhealthy and it is not permissible for a court to go into the merit of the matter in controversy or decide issues or give what has been or is to be determined in the substantive appeal, at the stage where it is dealing with interlocutory applications. This means that a court must strive to avoid the consideration of substantive issues of appeal and pronouncing on them, whilst determining interlocutory applications. See GADI VS. MALE (2010) 7 NWLR (Pt. 1193) 225; KOTOYE VS. SARAKI (1994) 7 NWLR (Pt. 357) 414 at 444; REGISTERED TRUSTEES of P.C.N VS. REGISTERED TRUSTEES OF ANSARUDEEN SOCIETY of NIGERIA (2000) 5 NWLR (Pt. 657) 368 and ONYESOH VS. NNEBEDUN (1992) 3 NWLR (Pt. 229) 315. Per ABUBAKAR DATTI YAHAYA, J.C.A.

JUSTICES

AMIRU SANUSI Justice of The Court of Appeal of Nigeria

ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria

MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria

Between

FEDERAL ROADS MAINTENANCE AGENCY – Appellant(s)

AND

1. BPS ENGINEERING AND CONSTRUCTION COY. NIG. LIMITED

2. CHIEF REGISTRAR, FCT HIGH COURT ABUJA

3. DEPUTY SHERIFF FCT HIGH COURT ABUJA

AND

CENTRAL BANK OF NIGERIA – GARNISHEE/RESPONDENT – Respondent(s)

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Lead Ruling): The appellant/applicant has by a Motion on Notice dated the 25th of February 2013 and filed on the same day, sought for the following reliefs –

(1) An interlocutory order of mandatory injunction compelling the 1st Respondent through its Managing Director Prince Chudi Charles Chukwuani and the 2nd respondent through its Chief Registrar Mrs. Oluwatoyin Musa Yahaya and its Director of Litigation, Uche Ezinne Bilkisu to pay the judgment sum of Four hundred and sixty Million Naira (N460,000.000.00) into an interest yielding account in the control of the Chief Registrar of the Court of Appeal, Court of Appeal Headquarters Abuja, pending the determination of this Appeal.

(2) An order of accelerated hearing of this Appeal in the interest of justice.

The stated grounds for the application are –

(1) The appeal raised jurisdictional fundamental and arguable grounds of law with high chances of success.

(2) The lower court lacked the jurisdiction to entertain the case ab initio as the Appellant is an agency of the Federal Government and it is the Federal High Court that has jurisdiction.

(3) It is a case in which the trial judge granted an interest of N320,000.00 per day.

(4) The judgment creditor is owing many banks and will not be able to repay the judgment sum if the appeal succeeds.

(5) There is no bank guarantee or insurance bond securing the release of the N460 Million to the 1st respondent and this will foist upon the Court of Appeal, a situation of helplessness.

The application is supported by a five – paragraphs affidavit, sworn to by Chris Mbam, a legal practitioner in the law firm of Chief Chukwuma Ekomaru SAN, lead counsel for the appellant/applicant.

Although the 2nd and 3rd respondents had been served, they have not filed any processes and have not appeared on the day the application was moved – 8th of April 2013.

The fourth respondent had no objection to the grant of the application.

The 1st respondent did not file a counter-affidavit to the application but it filed on the 4th of April 2013, a Notice of Preliminary Objection to the application. The Notice states –

“Take Notice that at the hearing of the motion dated the 25th day of February 2013, and filed on the same date, seeking for mandatory injunction compelling the 1st – 3rd respondents to pay the judgment sum to the Court of Appeal pending the determination of the appeal, the 1st respondent shall raise preliminary objection against the pendency and the hearing of the motion on the ground that the motion is incompetent and liable to be struck out.”

Learned senior counsel for the 1st respondent then stated the grounds of the objection to be –

(1) The motion is based on the notice of appeal dated the 1st August, 2012 and filed on 2nd August, 2012.

(2) The said notice of appeal was filed pursuant to garnishee order absolute made by the trial court on 1st day of August 2012 ordering the 4th respondent to pay to the 1st respondent the sum of N460,000,000.00 which is the judgment sum in the case.

(3) The appellant/applicant was not a party to the garnishee proceedings and expressly barred from taking part in the garnishee proceedings by the trial court and there is no appeal against this ruling.

(4) The order of garnishee absolute was a consent judgment in which the 4th respondent who was party to the proceedings consented.

(5) The appellant/applicant has no right of appeal and accordingly can only appeal with leave which leave it has neither sought for nor obtained making the notice of appeal of 2/8/12 and any amending notice thereof incompetent and liable to be struck out.

(6) The said motion has therefore no leg to stand and is liable to be struck out.

In moving the application, Mr. Ekomaru SAN, learned counsel for the applicant/appellant submitted that the application for mandatory injunction is to compel the 1st and 2nd respondents to pay the judgment sum of N460,000,000.00 to the Chief Registrar of the Court of Appeal, to place same in an interest yielding account, pending the outcome of the appeal. Although the lower court had ordered in Exhibit E, that the 2nd respondent should keep custody of the judgment sum, pending an order of the Court of Appeal in respect of the stay of execution, the 2nd respondent has paid the judgment sum to the 1st respondent. He questioned the propriety of the action of the 2nd respondent. He urged us to grant the application, especially as there is no counter-affidavit filed by the respondents.

Learned senior counsel for the 1st respondent drew the attention of this court to the Preliminary Objection filed by the 1st respondent, to this application, which he said is based on the Notice of Appeal dated 1/8/12. He argued that the Notice of Appeal is incompetent as the applicant was not a party to the Garnishee Proceedings, as a judgment/debtor is not a party to Garnishee Proceedings. He placed reliance on many authorities, such a N.O.C VS. OGINI (2011) 11 NWLR (Pt. 1230) 131 at 152 G; PPMC VS. DELPHI PETROLEUM (2005) 8 NWLR (Pt. 928) 458 at 484; HON. JUSTICE DENTON-WEST VS. MGOMA (2008) 8 NWLR (Pt. 1083) 418 at 447 and NITEL PLC VS. ICIC (2009) 16 NWLR (Pt. 1167) 366. He also cited Section 243A of the 1999 Constitution to submit that a person who is not a party to proceedings, has no right of appeal before the court of appeal, relying on – RAUFU WILLIAMS VS. MADAM NIMOTA AJAGA & ORS. (1993) 2 NWLR (Pt. 275) 317 and IFEANYI CHUKWU OKONKWO & ANOR VS. UNITED BANK FOR AFRICA PLC (2011) 16 NWLR (Pt. 1274) 614.

Counsel submitted that the appeal before this court is incompetent because the appellant did not seek leave to appeal, especially as the Order (Exhibit K) was with the consent of the Central Bank (4th respondent) and the applicant cannot therefore complain.

Furthermore, counsel submitted that the application should have been brought before the High Court (Trial Court) and not this court, since it was the disobedience of the High Court that is in issue, not that of the Court of Appeal. He urged us to dismiss the application.

In a Reply, Mr. Ekomaru argued that all the grounds on Preliminary Objection are on facts which have not been exhibited – the Notice of Appeal and the garnishee orders, and that looking at the grounds, the appellant does not need leave to appeal. He also referred to Exhibit D exhibited to the application and said it shows that the applicant was a party thereon, as 1st respondent. On the proper court, counsel submitted that since the appeal has been entered here since the 30/10/12, this is the court seized with the jurisdiction to hear it. He also urged us to discountenance the authorities cited by the 1st respondent as they have no bearing to the application.

The 1st respondent did not file any affidavit in opposition to this application but has relied on the Notice of Preliminary Objection to oppose the application. He has urged us to dismiss the application because the Appeal is incompetent.

The 1st respondent to this application has filed a Preliminary Objection on the competence of the appeal. That would be decided only after the 1st respondent raises the Preliminary Objection, the appeal is heard and the parties have had the opportunity of canvassing arguments on the Preliminary Objection. At this stage, the Preliminary Objection has not been argued, the appeal has not been heard and so it will be pre-mature, indeed a breach of the rules of fair hearing, to pronounce on the competence of the appeal, thus trespassing into the territory properly belonging to the substantive appeal. It will be highly prejudicial to the interests of the parties to the appeal. See THE SENATE PRESIDENT VS. NZERIBE (2004) 9 NWLR (Pt. 878) 251 and AKILU VS. FAWEHINMI (No. 2) (1989) NWLR (Pt. 102) 122. I therefore decline to consider the issues raised in the preliminary Objection, in deciding this application. It also means that there is really nothing countering the application.

In IDEOZU VS. OCHUM (2006) 4 NWLR (Pt. 970) 364, it was held that the main aim of an interlocutory injunction, which is an injunctive relief such as the application at hand, is to preserve the res pending the determination of the suit or the appeal. It attacks a “threatening, continuing or living adverse act or conduct, on the part of the owner of the act.

(1) substantial legal issues must be disclosed in the grounds of appeal which must be recondite.

(2) it is necessary to preserve the res so as to avoid rendering the appeal nugatory.

(3) special circumstances requiring the grant of a stay, such that the appeal would not be paralysed, the subject matter would be destroyed or that there will be no return to the status quo, unless the stay is granted. The conduct of the parties is also an important special and exceptional circumstance – OBEYA HOSPITALS VS. A.G. FEDERATION (1987) 3 NWLR (Pt. 61) 325.The preservation of the res is a prime consideration of this court so that whoever succeeds at the end of the day, would infact have the subject matter for use. If it is destroyed, then the whole purpose of the appeal would be worthless, especially when the judgment/creditor has not been shown to suffer any undue disadvantage, by the temporary deprivation of the fruits of his labour. Paragraph 3(y) of the affidavit in support of the application deposes to the fact that unless the judgment sum is recovered from the 1st respondent and 2nd respondent, the appeal would not yield any useful result since the 1st respondent has been “buying houses and brand new cars” with the judgment sum. The depositions have not been countered at all. There is therefore the imminent danger of destroying the res, unless this Court acts.

There is ground 2 of the Further Amended Notice of appeal and grounds which attacks the jurisdiction of the lower court to adjudicate in the case in the first place. This is an important and crucial point that has to be decided in this appeal. Since it is not to be taken lightly, this court will consider it as an important aspect, whether to grant or refuse the application.

There is also the conduct of the parties that I need to consider. The trial court made an Order on the 4th of September 2012, directing the 2nd respondent herein, to keep custody of the judgment sum of N460 million pending the order of the Court of Appeal in respect of the application for stay of execution – Exhibits E and F exhibited to this application refer. There is nothing countering these exhibits, or paragraph K of the affidavit in support. Despite the clear Order of the trial judge,

“….the Chief Registrar had secretly authorized the release of the judgment sum of 460 million naira to the Managing Director of the 1st Respondent, Prince Chudi Charles Chukwuani since 19th September, 2012 inspite of the aforementioned pending application for stay of execution in this Honourable Court and the order of the trial court that the Chief Registrar should keep custody of the judgment sum pending the Order of the Court of Appeal in respect of all the stay applications before the Honourable Court. A copy of the undated letter signed by Uche Ezinne Bilkisu, the Director of Litigation on behalf of the Chief Registrar, Mrs. Oluwatoyin Musa Yahaya is exhibited as Exhibit 1.”

It is amazing, that the Chief Registrar had released the judgment sum to the 1st respondent in utter disregard and defiance to the subsisting order of the trial judge and in total disrespect to the Court of Appeal which had then been seised of the matter and which had the application for stay of execution pending before it. A Chief Registrar, who is supposed to ensure obedience of court orders lawfully made, has acted in a brazen and contemptuous manner, unbecoming of such a high office with its attendant responsibilities. It will be a sad day, if such an officer will be allowed to flout court orders and get away with it. This court will not condone such a reckless behavior which has the effect of undermining the authority of the courts. It is condemned in strong terms, as this court is no respecter of persons who act deliberately and in defiance of the rule of law. I recall the dictum of Oputa JSC in GOVENOR OF LAGOS STATE VS. OJUKWU (1986) 1 NWLR at 641. The ‘most ominous, most menacing and most portentous impact’ of the actions of the Chief Registrar in surreptitiously and illegally releasing the judgment sum to the 1st respondent, contrary to the express orders of the High Court,

“is the assault they make on the entire court system itself. The court system cannot be maintained without the willingness of parties to abide by the finding and orders of a competent court until reversed on appeal. This presupposes that no party and no court of subordinate or even co-ordinate jurisdiction can say – ‘I do not like the order made and I will not obey it.’ …..And that posture has to be condemned in the strongest of terms if we are not to say goodbye to the Rule of Law.”

This court has the power to restore the status decreed by the trial court, irrespective of what will eventually be determined in the appeal. The grant of a stay is discretionary. I believe that a judicial and judicious exercise of discretion, taking into consideration the competing rights of the parties, as stated in U.B.N VS. ODUSOTE BOOKSTORE LTD (1994) 3 NWLR (Pt.331) 129 and as disclosed in the affidavit in support of the application, would dictate the grant of this application, since exceptional circumstances exist.

In this vein therefore, this application has merit and it succeeds. An Interlocutory Order of Mandatory Injunction is hereby granted, compelling the 1st respondent, through its Managing Director Prince Chudi Charles Chukwuani and the 2nd respondent Mrs. Oluwatoyin Musa Yahaya, to pay the judgment sum of N460 million into an interest-yielding account in the control of the Chief Registrar of the Court of Appeal Abuja, within thirty days from today, the 4th day of June, 2013 pending the determination of this appeal. A copy of this Ruling shall be served on the Chief Judge of the FCT High Court Abuja, for him to ensure that officers working under him, comply with the order, respect this Court, and go through appropriate sanctions.

The applicant herein has also prayed for an accelerated hearing of the Appeal. I wonder how this is possible when the appellant has complained to the Honourable Chief Justice of Nigeria, that he has been denied a copy of the judgment, giving birth to the appeal. That prayer is therefore struck out.

N30,000 costs to the Appellant against the respondents.

AMIRU SANUSI, J.C.A.: The ruling just delivered by my learned brother A. D. Yahaya, JCA was made available to me before now. The issues canvassed by parties learned counsel in the appeal were adequately treated in the lead Ruling.

I have nothing more to add except to agree with the reasons given and to endorse the consequential orders made therein as well as the order on costs.

MOORE A. A. ADUMEIN, J.C.A.: I had the privilege of previewing the draft of the lead ruling rendered by my learned brother, Abubakar Datti Yahaya, JCA.

I agree that this application has merit and it should be granted in terms of prayer number 1.

Injunction is an equitable remedy and in granting or refusing an application for an interlocutory injunctive relief, the conduct of the parties is a matter of monumental significance. In this case, the conduct of the respondents as borne out by the unchallenged and uncontroverted affidavit evidence tendered by the applicant, to say the least, leaves a sour taste in the mind and mouth of any right-thinking member of the public. As stated in the lead ruling, the actions and conduct of Prince Chudi Charles Chukwuani – Managing Director of the 1st respondent company and Mrs. Oluwatoyin Musa Yahaya, the Chief Registrar of the High Court of the Federal Capital Territory Abuja leave much to be desired that, under normal circumstances, they should have been under criminal Investigation or even prosecution. I will say no more, save to say that for the fuller and very comprehensive reasons given in the ruling of my learned brother, I also grant this motion as prayed in relief 1.

I abide by all the orders in the lead ruling.

Appearances

Chief Chukwuma Ekomaru SAN (with Ademola Adeniji, C. O. Mbam Esq., Oluwasegun Owa, Eze Ebubedike Esq., and T.U Ekomaru Esq.)For Appellant

AND

Tochukwu Ewwgbufor SAN (with Uchenna Aghadinno and Helen Othina)For Respondent