LARABEE ENTERPRISES LTD & ANOR v. NEXIM BANK & ANOR
(2022)LCN/17018(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Tuesday, February 01, 2022
CA/KN/125/2020
Before Our Lordships:
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
1. LARABEE ENTERPRISES LIMITED 2. MUSTAPHA SHOUR APPELANT(S)
And
1. NIGERIAN EXPORT IMPORT BANK 2. M.S. SHEHU BROTHERS LIMITED RESPONDENT(S)
RATIO
WHETHER OR NOT INTERLOCUTORY INJUNCTION IS AN EQUITABLE RELIEF OR ORDER
Generally, interlocutory injunction is an equitable relief or order made with the primary object of keeping the subject matter of dispute in status quo pending the final determination of the suit. In other words, interlocutory injunction like all other injunctions is within the realm of the equity jurisdiction of a Court and it is granted against a defendant in most cases forbidding him to do some act or to permit his servants or agents to do some act which he is attempting to do or threatening to do, restraining him from doing the act. It operates in personam and requires the person to whom it is directed to do or refrain from doing a particular thing. See OJUKWU VS. GOV. OF LAGOS STATE (1986) 3 NWLR (PT. 26) 39, AYOOLA VS. BARUWA (1999) 11 NWLR (PT. 625), NITEL LTD. VS. I.C.I.C. (Directory Publishers) LTD (2009) 16 NWLR (PT. 1167) 356 and MUBECO PETROLEUM CO. LTD VS. FIRST BANK OF NIGERIA & ORS. (2015) LPELR 40385.
An interlocutory order or injunction given on notice in the Course of a proceeding usually lasts until the final determination of the suit. This is so because it is usually granted so as to preserve the res of the litigation but where there is a final determination of the suit then a final order is given especially where the plaintiff’s case succeeds in the form of perpetual injunction. See AZUH VS. UNION BANK OF NIGERIA PLC (2014) LPELR 22913.
Interlocutory injunction is an equitable remedy and the power of the Court to grant same is discretional and like all other discretionary powers, it must be exercised judicially and judiciously taking into cognisance the affidavit evidence placed before the Court by parties and any other annexure in support of the grant or refusal of the application. See OJUKWU VS. GOV. OF LAGOS STATE (Supra) and AYOOLA VS. BARUWA (Supra). PER LAMIDO, J.C.A.
THE POSITION OF LAW ON EXERCISING THE DISCRETION OF THE COURTS
In the course of exercising its judicial discretion, the Court ought to ensure that an applicant who bears the burden of establishing the required conditions for the grant of an injunction has done so to its satisfaction. The conditions for the grant of an interlocutory injunction are:
i. That the applicant has a recognizable legal right to be protected in the substantive suit. See AYORINDE VS. AG. OYO STATE (1996) 3 NWLR (PT. 434) 20 and ACB LTD. VS. AWOGBORO (1996) 3 NWLR (PT. 437) 383.
ii. That there are serious issues to be decided in the substantive suit. See KOTOYE VS. CBN (Supra), OKOMO VS. UMOETUK (2004) 10 NWLR (PT. 882) 52 and NIGERIAN CIVIL SERVICE UNION VS. ESSIEN (1985) 3 NWLR (PT. 12) 306.
iii. Damages would not be an adequate compensation for the injury as a result of refusal of an injunction. See KOTOYE VS. CBN (Supra), ORJI VS. ZARIA INDUSTRIES LTD. (1992) 1 NWLR (PT. 276) 124 and UNION BEVERAGES LTD. VS. PEPSI COLA IND. (1994) 3 NWLR (PT. 350) 1.
iv. That the balance of convenience is on his side. See BUHARI VS. OBSANJO (2002) 17 NWLR (PT. 850) 587.
v. That the applicant’s conduct is not reprehensible. See PETER VS. OKOYE (2002) 3 NWLR (PT. 755) 211.
vi. That the applicant must give a satisfactory undertaking as to damages. See KOTOYE VS. CBN (Supra) and ITAMA VS. OSARO-LAI (2000) 6 NWLR (PT. 661) 515.
vii. That granting an injunction is necessary to preserve the subject matter of the dispute. See AG. ANAMBRA STATE VS. OKAFOR (1992) 2 NWLR (PT. 224) 396.
The applicant seeking an interlocutory injunction must depose to facts in his affidavit in support fulfilling the requirements for its grant hence the basis of the grant or refusal of the application is predicated on the facts deposed to in an affidavit. PER LAMIDO, J.C.A.
WHETHER OR NOT THE TRIAL COURT MUST MONITOR THE CONDUCT OF THE PARTIES BEFORE IT
In its equity jurisdiction the trial Court is expected to closely monitor the conduct of the parties and in doing so, must ensure that the applicant who seeks an equitable intervention of the Court must come with clean hand making full and frank disclosure of all facts within his knowledge. An applicant who deposed to facts that are not true to his knowledge to gain advantage over his adversary ought not to have the sympathy of the Court. See ADEYEMI WORKS CONSTRUCTION (NIG) LTD. VS. OMOLEHIN (2003) LPELR 7185. PER LAMIDO, J.C.A.
THE CONDITIONS THAT MUST BE FULFILLED BY A PARTY WHO IS SEEKING EQUITABLE RELIEF BEFORE A COURT
A party seeking an equitable relief before a Court must present enough materials upon which the Court can exercise its discretion in his favour. In ONYALI & ANOR. VS. OKPALA & ORS. (2000) LPELR 6820, AT 31-32, this Court held that:
“It is the responsibility of an applicant to furnish the Court with all necessary and vital documents for the due consideration of his application. If he defaults in this respect, he cannot complain if the application is refused.”
Also, in RE: YAR’ADUA (2011) 17 NWLR PT. 1277) 567 AT 585, Muhammad, JSC held that:-
“This Court has stated the law and even the practice in a number of decisions, that for a person to approach this Court or any other Court for that matter with an application which seeks the Court’s indulgence, such a person is duty bound to place sufficient materials before the Court in order to assist the Court exercise its discretion in his favour. Such discretionary exercise must be found upon facts and circumstances presented to the Court from which a conclusion governed by law will have to be drawn.”
See UDEORAH VS. NWAKONOBI (2000) 1 NWLR (PT. 640) 239 and FODE DRILLING (NIG) LTD VS. FABBY & ORS. (2017) LPELR 42822. PER LAMIDO, J.C.A.
ABUBAKAR MUAZU LAMIDO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Justice, Kano delivered o 14th January, 2020, Coram: N.S. Umar, CJ. The Appellants as plaintiffs filed an action against the Respondents as defendants seeking for the following reliefs:-
1. A DECLARATION that the 1st Plaintiff’s account named LARRABEE maintained with the 1st Defendant has been illegally overcharged and wrongfully debited with charges not contained in the offer letters of the facilities granted the 1st Plaintiff by the Defendant or charges not approved by the Central Bank of Nigeria Guidelines.
2. A DECLARATION that the Plaintiffs are no longer indebted to the 1st Defendant in any sum whatsoever in view of the illegal overcharges by the 1st Defendant on the 1st Plaintiff.
3. A DECLARATION that the Deed of Assent Debenture Agreement executed between the 1st Plaintiff and the Defendant are illegal, null and void and of no effect whatsoever.
4. A DECLARATION that the appointment of 2nd Defendant by the 1st Defendant as receiver over the affairs of the Plaintiffs is premature, unlawful and void.
5. AN ORDER directing the 1st Defendant to reverse all illegal debits computed into the 1st Plaintiff’s account by the Defendant and to forthwith credit the 1st Plaintiff’s account with the amount of erroneous overcharges.
6. AN ORDER setting aside the Deed of Debenture Agreement and directing the 1st Defendant to immediately surrender to plaintiffs all title deeds and documents in its possession together with all necessary releases and surrender.
7. AN ORDER of this honourable Court nullifying the appointment of the 2nd Defendant by the 1st Defendant as receiver for being premature, unlawful and void.
8. AN ORDER discharging all securities executed by the Plaintiffs in respect of the facilities extended to the 1st Plaintiff by the Defendants, which facilities have been fully repaid.
9. AN ORDER restraining the Defendants from laying any claim from receivables due to the Plaintiffs.
10. AN ORDER restraining the Defendants from executing the Deed of Personal Guarantee howsoever described.
11. AN ORDER of perpetual injunction restraining the Defendants or its agents, servants, employers, privies or any person howsoever described from taking any step in any manner whatsoever towards exercise of any powers therein or enforce any other agreement/instrument executed in connection with the transaction, the subject matter of the suit.
12. General damages to the tune of N10,000,000.00 (Ten Million Naira Only) for the act of erroneous and arbitrary overcharges committed by the Defendant against the 1st Plaintiff.
13. Cost of this action.
The plaintiffs/Appellants further filed a motion on notice for interlocutory injunction against the defendants/Respondents seeking the following reliefs:
1. AN ORDER OF INTERLOCUTORY INJUNCTION restraining the Defendants/Respondents acting by itself, or through any of its agents, servants, successors- in- title, or through any person howsoever described from taking step in any manner whatsoever to exercise any of the powers contained in the Deed of Assets Debenture, or in any way disposing the property covered by Certificate of Occupancy No. LKN/IND/82/36 situated at Plot 61/62 Sharada Industrial Area, Nassarawa, Kano State, Certificate of Occupancy No. LKN/IND/82/3 situated at Plot 61/62 Sharada Industrial Estate, Kano State purportedly used as collateral security for the facilities granted to the Plaintiff/Applicants and any other property used as additional Guarantee or any other instrument by whatever name called executed by the Guarantors in respect of the facilities granted to the Plaintiffs/Applicants pending the hearing and determination of the substantive Suit.
2. AN ORDER OF INTERLOCUTORY INJUNCTION restraining the Defendant/Respondent, its agents, servants or privies or howsoever described from reporting the 1st Plaintiff’s state of accounts to the CREDIT RISK MANAGEMENT SYSTEM BUREAU of the Central Bank of Nigeria, Economic and Financial Crimes Commission (EFCC), or any government agency of any financial institution, Credit Risk, Agency/Bureau or any other agency howsoever called pending the hearing and determination of the substantive suit.
3. AN ORDER of this Honourable Court maintaining the status quo ante bellum pending the hearing and determination of the substantive suit.
4. AN ORDER RESTRAINING the 2nd Respondent its servants, it agents or privies howsoever described from taking any step with respect to the purported appointment as receiver manager against the Plaintiff’s properties lying and situated at Plot 62 Sharada Industrial Area of Kano pending the hearing and determination of the substantive suit.
5. AND for such further Order(s) as this Honourable Court may deem fit to make in the circumstances.
The application is supported by an affidavit in support, annexures, written address and further and better affidavit. The 1st Respondent filed a counter-affidavit in opposition and a written address. In a considered ruling,, the trial Court granted prayer one on the motion paper and refused all other prayers.
Dissatisfied with the refusal of the other prayers on the motion paper, the plaintiff/Appellants filed a notice of appeal against the said ruling on 27th January, 2020. The said notice of appeal contained three grounds of appeal couched in the following way:
GROUND ONE
The learned trial judge erred in law and occasioned a miscarriage of justice when he refused prayer 2 of the Appellant application dated 19th day of March, 2019, despite having complied with the requirement in KOTOYE VS. CBN 1982 2 SC PT 1 PG AT 16 – 18.
PARTICULARS OF ERROR
1. That the Appellant maintains a banking relationship with the Respondent wherein the Respondent continued publishing the Appellant state of account to the credit risk Bureau of the CBN.
2. By the decision in KOTOYE VS. CBN the grant of an interlocutory application is premised on the conditions enumerated in the said authority.
3. That the only duty on an applicant is to satisfy the requirement via affidavit evidence.
4. That the Appellant satisfied all the conditions necessary for the grant of the prayer 2 in its application and further deposed to fact supporting same.
5. That once an applicant satisfies the above requirement and stipulate the imminent danger therein the lower Court ought to exercise its discretion in its favour.
6. That further to the above, the Respondent in its counter-affidavit before the lower Court failed to depose to fact challenging the aforementioned prayer thereby acceding to the Appellant application.
7. That no matter how eloquent an argument is encapsulated in a written address, only fact deposed to in an affidavit ought to be relied on in the grant of the instant application.
GROUND TWO
The lower Court erred in law when in the absence of good, substantial or exceptional reasons disclosed in the Respondent’s counter-affidavit (in opposition of the applicants’ application for interlocutory injunction), it improperly exercised its discretion in favour of the Respondent, based on prayer 3, 4 and 5 and thereby occasioned a miscarriage of justice.
PARTICULARS OF ERROR
i. In the exercise of its discretion, a trial Court is bound to act judicially and judiciously.
ii. A judicial and judicious exercise of discretion by a trial Court can only be done on good, substantial or exceptional reasons disclosed in a supporting affidavit.
iii. The decision by the lower Court to exercise its discretion in favour of the Respondent despite finding no reasons to do so (as highlighted above) is improper in the circumstance.
GROUND THREE
The learned trial judge erred by determining an issue of the substantial suit at an interlocutory stage by refusing to grant major prayers of the interlocutory application.
PARTICULARS OF ERROR
1. The reliefs sought by the interlocutory injunction were to maintain status quo ante. By not granting the prayers sought, the trial Court had ascribed liability to the Plaintiffs/Applicants, even before the final determination of the suit.
The Appellants filed their brief of argument on 24/09/2020 and formulated two issues for determination from the three grounds of appeal. The issues are:
1. Whether having satisfied all the requirements in the grant of an interlocutory injunction, the lower Court was right in refusing prayers 2, 3 and 4 contained in the application. (distilled from grounds 1 and 2).
2. Whether the lower Court ought to set liability on the Appellant at an interlocutory stage of a proceeding. (distilled from ground 3).
The 1st Respondent filed its brief of argument on 21/10/2020 but deemed properly filed on 07/07/2021. Two issues for determination were formulated in the said brief. The issues are:
1. Whether the Appellants here satisfied all the requirements of an interlocutory injunction especially prayers 2, 3 and 4 as contained in the application.
2. Whether lower Court by the grant of reliefs 2nd, 3rd and 4th (sic) would determine the main suit at interlocutory stage of the proceeding.
In arguing issue one, learned Counsel for the Appellant, H.M. Muhammad, Esq., submitted that the affidavit in support of the motion contained sufficient facts showing that the applicant will suffer irreparable damage or loss if the application is refused. This can be found in paragraphs 22 – 28 of the affidavit in support. He stated further that for an application of this nature to be granted, the applicant must show that:-
a. That the applicant has a right which ought to be protected pending the determination of the substantive suit.
b. That there is a serious issue on the evidence before the judge between the parties to be tried.
He referred to AKAPO VS. HAKEEM-HABEEB (1992) 6 NWLR (PT. 247) 266 and KOTOYE VS. CBN (1989) 2 SC (PT. 1) 1. He argued that once an applicant for the grant of an interlocutory injunction is able to satisfy the first condition that serious issues or question for determination are raised by the applicant and the facts deposed show a real possibility of success by the Appellant, the first condition for the grant of an injunction is satisfied.
He argued further that the balance of convenience is in favour of the grant of the application as it seeks to answer the question of whether greater justice will be served by granting the injunction. In the case at hand, serious mischief is being occasioned and irreparable damage done to the Appellant is the publishing of its accounts to the whole world and the Appellants have thus become certified debtors even before the conclusion of the hearing of the substantive suit. He referred to OJUKWU VS. GOV. LAGOS STATE (1986) 3 NWLR (PT. 26) 289, AKAPO VS. HAKEEM – HABEEB (Supra), KOTOYE VS. CBN (Supra) and OBEYA MEMORIAL HOSPITAL VS. AG. FEDERATION (1987) 3 NWLR (PT. 60) 325.
He further submitted that damages will not be an adequate remedy for the Appellants in the event of refusal of an injunction. This is so because the mischief and illegal actions of the Respondents will continue to cause damage on the Appellant. The continuous uploading of the statement of account of the Appellant on monthly basis has restrained financial institutions from transacting business with the Appellants and also hindered its production in a company with over 500 staff. Where the Court refused an interlocutory order of injunction in this type of situation, no pecuniary reward can adequately compensate the colossal loss the Appellants will suffer. The Appellant has also not been guilty of any delay in bringing the application. He referred to MOLOKWU VS. OBIODU (2015) ALL FWLR (PT. 770) 1282 and OKOMU OIL PALM VS. TAJUDDEEN (2015) ALL FWLR (PT. 806) 350.
On issue two, he submitted that in the determination of an application for injunction, Courts are usually enjoined not to do any act which would amount to a final determination of the substantive suit. He referred to AGBEOTU VS. BRISIBE (2005) ALL FWLR (PT. 257) 1454, AKIBU VS. RACE AUTO SUPPLY & CO. (2000) 14 NWLR (PT. 686) 190, AMUSAN VS. OLAWUNI (2002) ALL FWLR (PT. 118) 1385, ANTHONY VS. GOV. OF LAGOS STATE (2003) 10 NWLR (PT. 828) and GLOBE FISHING IND. LTD VS. COKER (1990) 7 NWLR (PT. 162) 265. That by the refusal to grant the remaining prayers on the motion paper the trial Court has delved into the substantive suit since the trial Court’s refusal to grant the reliefs signifies that the substantive action before it has failed even a final determination of the matter.
In arguing issue one formulated in the 1st Respondent’s brief, learned Counsel for the 1st Respondent S.S. Gezawa Esq., submitted that the purpose of an interlocutory injunction is to maintain status quo of the issues already submitted for adjudication and its grant is discretionary which must be exercised judicially and judiciously.
He referred to S.N.L. V. S.D.W.P.P.L. (2015) ALL FWLR (PT. 809) 953, HARRY VS. IDONIBOYE-OBU (2015) ALL FWLR (PT. 808) 625 and OKOMU OIL CO. VS. TAJUDEEN (2015) ALL FWLR (PT. 806) 350.
He also submitted that in the consideration of where lies the balance of convenience, care must be taken to ensure that damages will not be an adequate compensation in lieu of injunction since balance of convenience means the disadvantage to one or other side which damage cannot compensate. He referred to YUSUF VS. EDUN (2007) ALL FWLR (PT. 384) 372.
On issue two, he submitted that the grant of prayers 2, 3 and 4 would result in the determination of the substantive suit in an interlocutory stage which is prohibited. He referred to IZUIGE VS. AMUDA (2006) ALL FWLR (PT. 294) 493 and OGUNRO VS. DUKE (2006) ALL FWLR (PT. 308) 1288. Thus, the trial Court was right to refuse the prayers as their grant will knock off the bottom of the substantive suit.
In the determination of this appeal, it is my humble view that a single issue for determination can dispose of the appeal one way or the other. The issue would encompass the two issues as formulated by the parties of this appeal. The issue is:-
“Whether in view of the depositions of parties in the various affidavits filed it is just and equitable for the trial Court to refuse the grant of prayers 2, 3 and 4 on the Appellant’s motion paper.”
Generally, interlocutory injunction is an equitable relief or order made with the primary object of keeping the subject matter of dispute in status quo pending the final determination of the suit. In other words, interlocutory injunction like all other injunctions is within the realm of the equity jurisdiction of a Court and it is granted against a defendant in most cases forbidding him to do some act or to permit his servants or agents to do some act which he is attempting to do or threatening to do, restraining him from doing the act. It operates in personam and requires the person to whom it is directed to do or refrain from doing a particular thing. See OJUKWU VS. GOV. OF LAGOS STATE (1986) 3 NWLR (PT. 26) 39, AYOOLA VS. BARUWA (1999) 11 NWLR (PT. 625), NITEL LTD. VS. I.C.I.C. (Directory Publishers) LTD (2009) 16 NWLR (PT. 1167) 356 and MUBECO PETROLEUM CO. LTD VS. FIRST BANK OF NIGERIA & ORS. (2015) LPELR 40385.
An interlocutory order or injunction given on notice in the Course of a proceeding usually lasts until the final determination of the suit. This is so because it is usually granted so as to preserve the res of the litigation but where there is a final determination of the suit then a final order is given especially where the plaintiff’s case succeeds in the form of perpetual injunction. See AZUH VS. UNION BANK OF NIGERIA PLC (2014) LPELR 22913.
Interlocutory injunction is an equitable remedy and the power of the Court to grant same is discretional and like all other discretionary powers, it must be exercised judicially and judiciously taking into cognisance the affidavit evidence placed before the Court by parties and any other annexure in support of the grant or refusal of the application. See OJUKWU VS. GOV. OF LAGOS STATE (Supra) and AYOOLA VS. BARUWA (Supra).
In the course of exercising its judicial discretion, the Court ought to ensure that an applicant who bears the burden of establishing the required conditions for the grant of an injunction has done so to its satisfaction. The conditions for the grant of an interlocutory injunction are:
i. That the applicant has a recognizable legal right to be protected in the substantive suit. See AYORINDE VS. AG. OYO STATE (1996) 3 NWLR (PT. 434) 20 and ACB LTD. VS. AWOGBORO (1996) 3 NWLR (PT. 437) 383.
ii. That there are serious issues to be decided in the substantive suit. See KOTOYE VS. CBN (Supra), OKOMO VS. UMOETUK (2004) 10 NWLR (PT. 882) 52 and NIGERIAN CIVIL SERVICE UNION VS. ESSIEN (1985) 3 NWLR (PT. 12) 306.
iii. Damages would not be an adequate compensation for the injury as a result of refusal of an injunction. See KOTOYE VS. CBN (Supra), ORJI VS. ZARIA INDUSTRIES LTD. (1992) 1 NWLR (PT. 276) 124 and UNION BEVERAGES LTD. VS. PEPSI COLA IND. (1994) 3 NWLR (PT. 350) 1.
iv. That the balance of convenience is on his side. See BUHARI VS. OBSANJO (2002) 17 NWLR (PT. 850) 587.
v. That the applicant’s conduct is not reprehensible. See PETER VS. OKOYE (2002) 3 NWLR (PT. 755) 211.
vi. That the applicant must give a satisfactory undertaking as to damages. See KOTOYE VS. CBN (Supra) and ITAMA VS. OSARO-LAI (2000) 6 NWLR (PT. 661) 515.
vii. That granting an injunction is necessary to preserve the subject matter of the dispute. See AG. ANAMBRA STATE VS. OKAFOR (1992) 2 NWLR (PT. 224) 396.
The applicant seeking an interlocutory injunction must depose to facts in his affidavit in support fulfilling the requirements for its grant hence the basis of the grant or refusal of the application is predicated on the facts deposed to in an affidavit.
In its two sentences ruling which I find intriguing, the trial Court said at P. 482 of the record of appeal thus:
The first prayer is granted. All other prayers are refused.
The duty of this Court as an intermediate appellate Court is to peruse the affidavit evidence and weigh the reasoning of the trial Court with a view to determining whether the trial Court acted judicially and judiciously in the exercise of its discretion to grant or refuse the application. However, the Court will examine the facts deposed to in the affidavit evidence deposed by parties to see whether it is just and equitable to grant the other prayers on the motion paper.
Now, in an application for interlocutory injunction, the Court should be satisfied that there is a serious question to be tried at the hearing and on the available facts before it there is a probability that the applicant is entitled to the reliefs sought so as to keep the matters in status quo pending the hearing and determination of the substantive suit. The aim of an injunctive order at that stage is to secure or safeguard the res from being destroyed. See OBI-ANI VS. UBA PLC & ORS. (2014) LPELR 24509; ALAEDE VS. ECO BANK (NIG.) LTD. 2015 LPELR 25875 and TUKUR VS. SADIQ & ANOR (2016) LPELR 40318.
Now, the Appellants’ claim relates to wrongful debiting of its loan account domiciled with the 1st Respondent and excessive and illegal bank charges that are not part of the loan agreement. The 1st Appellant applied for and was granted a term loan facility by the 1st Respondent to the tune of N480,000,000.00. The Appellants executed several other deeds with the 1st Respondent including deed of assets, debenture agreement and deed of personal guarantee. The 1st Respondent served the 1st Appellant with a demand notice which the 1st Appellant ignored. In the purported exercise of its powers, the 1st Respondent appointed the 2nd Respondent as a debt recovery agent and not a receiver as deposed to by the Appellants. The Appellants are therefore challenging its indebtedness to the 1st Respondent. Their position is that the loan was repaid wholly and their account ought to show that.
The Appellants’ quarrel here is failure of the trial Court to grant prayers 2 – 4 on the motion paper. Prayer 2 seeks to restrain the 1st Respondent from reporting the 1st Appellant to Credit Risk Management System Bureau of the Central Bank, E.F.C.C. or any other financial agency; prayer 3 seeks to stop the 1st Respondent from taking any step towards appointing a receiver/manager to the property. The Appellants stressed on the importance of paragraphs 22 – 28 which according to them show the irreparable loss they will suffer if the application is not granted. Paragraphs 22 – 28 are as follows:
22. That despite its continued objection to the alleged indebtedness to the 1st Defendant, the later wrote a correspondence to the Plaintiff threatening to publish the name of the Plaintiff as a delinquent debtor at the national newspaper.
23. That despite the 1st Defendant’s continued unsavoury act, it proposed a settlement option to the 1st Defendant where it sought for a restructuring of the facility. Assuming the restructuring succeeded, it would have highlighted various pertinent issues which where yet to be resolved by the parties.
24. That the 1st Defendant failed in the commitment to restructure the facility and further continued to record the Plaintiff’s account in debt despite documents pleaded above.
25. That as a corollary to the foregoing, the 1st Defendant thereafter wrote a demand letter to the 1st Plaintiff and demanded for an amount the 1st Plaintiff was not indebted to.
26. That the 1st Defendant after serving the aforesaid demand letter appointed the 2nd Defendant as a receiver manager of the 1st Plaintiff who failed to present succinct facts establishing its appointment.
27. That the 2nd Defendant failed to register its purported appointment at the Corporate Affairs Commission which is a condition precedent to the receiver existence.
28. That I was made to sign a purported personal guarantee for the facilities granted to the 1st Plaintiff by the 1st Defendant.
The Respondent countered the Appellants’ deposition quoted above in their counter-affidavit. Paragraphs 3(q), (s), (f), (u), (v), (w) and (x) of the counter-affidavit state as follows:
“3(q). That contrary to paragraph 22 of the applicants affidavit, the applicants were just pre-empting on the next stage that may likely be taken against any defaulting customer. A copy of all assets debenture between the 1st Plaintiff and the Defendant is hereby attached and marked as Exhibit SS4.
3(r). That contrary to paragraph 23 of the applicants’ affidavit, there was no any restructuring in respect of the facility apart from the applicants’ presumptive narrations.
3(r). That contrary to paragraph 24 of the applicants’ affidavit, the said failure lies with the applicants due to their inability to comply with the stipulated terms as contained in the executed agreement.
3(t). That in further answer to the above paragraph, the applicants have clearly defaulted in repayment obligations and their account is now overdue with 1,165 days as at October 26, 2018. A copy of the 1st plaintiff collection account charge and assignment of receivables agreement with the 1st defendant is hereby attached and marked as Exhibit SSG5.
3(u). That contrary to paragraph 25 of the applicants’ affidavit, what they demanded was contained in “Annexure SSG1”.
3(v). That contrary to paragraphs 26 and 27 of the applicants’ affidavit, the alleged appointment of the said receiver cannot in any way override the express contract which had been executed prior to even the alleged appointment. The copy of the loan agreement made between 1st defendant and 1st plaintiff dated 5th May, 2014 is hereby attached to this affidavit and marked as Exhibit SSG6.
3(w). That in further answer to the above paragraph, the alleged appointment of the said receiver can be dispensed with at any time and same cannot change, supplement or give remedy to any of the terms and condition as contained in the parties agreement and in actual sense, the 2nd Respondent was appointed as a debt recovery agent and not receiver manager whose appointment is statutory regulated.
3(x). That contrary to paragraph 28 of the applicants’ affidavit, the said Executed Personal Guarantee for the facility granted was legal and devoid of any illegality as misconstrued by the applicants. A copy of the Deed of Guarantee sent by the Directors of the 1st plaintiff to the 1st defendant dated 7th April, 2019 is hereby attached to this affidavit and marked as Exhibit 7.”
The Appellants in the said paragraphs of their affidavit in support seems to be insisting that they are not indebted to the 1st Respondent, yet the 1st Respondent issued a demand letter and followed that up with the appointment of the 2nd Respondent as a receiver/Manager. Whereas the 1st Respondent deposed that the deed of personal guarantee executed by the 2nd Appellant is legal and that the 1st Respondent did not appoint the 2nd Respondent as a receiver/manager but a debt recovery agent and that the whole action is a pre-emptive step taken by the Appellants who were envisaging the next step to be taken by the 1st Respondent on any erring customer.
In its equity jurisdiction the trial Court is expected to closely monitor the conduct of the parties and in doing so, must ensure that the applicant who seeks an equitable intervention of the Court must come with clean hand making full and frank disclosure of all facts within his knowledge. An applicant who deposed to facts that are not true to his knowledge to gain advantage over his adversary ought not to have the sympathy of the Court. See ADEYEMI WORKS CONSTRUCTION (NIG) LTD. VS. OMOLEHIN (2003) LPELR 7185.
It is equally instructive to note that paragraphs 22, 23, 24, 25 and 26 heavily relied upon by the Appellants relate to certain facts contained in some documents. These documents ought to be in possession of the Appellants but failed to annex them in their affidavit in support. A party seeking an equitable relief before a Court must present enough materials upon which the Court can exercise its discretion in his favour. In ONYALI & ANOR. VS. OKPALA & ORS. (2000) LPELR 6820, AT 31-32, this Court held that:
“It is the responsibility of an applicant to furnish the Court with all necessary and vital documents for the due consideration of his application. If he defaults in this respect, he cannot complain if the application is refused.”
Also, in RE: YAR’ADUA (2011) 17 NWLR PT. 1277) 567 AT 585, Muhammad, JSC held that:-
“This Court has stated the law and even the practice in a number of decisions, that for a person to approach this Court or any other Court for that matter with an application which seeks the Court’s indulgence, such a person is duty bound to place sufficient materials before the Court in order to assist the Court exercise its discretion in his favour. Such discretionary exercise must be found upon facts and circumstances presented to the Court from which a conclusion governed by law will have to be drawn.”
See UDEORAH VS. NWAKONOBI (2000) 1 NWLR (PT. 640) 239 and FODE DRILLING (NIG) LTD VS. FABBY & ORS. (2017) LPELR 42822.
According to the Appellants, paragraphs 22 – 28 is the fulcrum of their case for interlocutory injunction and paragraphs 22 – 26 are to my mind so defective in view of failure to annex the documents upon which such depositions are based. Evidence of contents of a document should be the document itself and nothing else.
The trial Court graciously granted the Appellants’ prayer one on the motion paper which seeks to restrain the 1st Respondent acting by itself or through its servants, agents and successors in title from taking any step in any manner whatsoever to exercise any power contained in the deed of asset debenture to dispose of the properties used as collateral for the facility granted and any other property used as additional guarantee or any other instrument executed by the guarantor in respect of the facility granted to the Appellants pending the hearing and determination of the substantive suit. Either the Appellants do not understand the enormity of the prayer granted in terms of protecting the res or they greedily appear not content in the gratuitous award made to them by the trial Court in asking for more on appeal. Prayer one to me seems all encompassing and little wonder the learned trial judge granted the prayer and refused all others. Even at that, the Appellants are not satisfied. The relief of interlocutory injunction which has the effect of arresting the res in dispute pending the determination of the substantive suit deserves a full, dispassionate and proper consideration by a Court. This is because its transient effect is just as good as the relief of perpetual injunction as long as it last that is to say as long as the matter is not finally disposed off. See ISAMADE VS. OKEI (1998) 2 NWLR (PT. 538) 455 and BRAITHWAITE VS. STANDARD CHARTERED BANK (NIG) LTD. (2011) LPELR 12656. The trial Court gave no reason for granting prayer one in its short ruling thereby depriving this Court to examine whether the discretion was rightfully exercised. See NNAMANI & ORS. VS. IKOKU & ANOR (2016) LPELR 41937. Happily for the Appellants, there is no cross-appeal therefore, there would be no basis for disturbing the ruling of the trial Court.
The other prayers refused by the trial Court are equally refused by this Court as the Appellants’ affidavit in support did not show any facts to enable the trial Court or this Court to exercise its discretion in their favour. The fact as they are, do not show that the balance of convenience is in their favour, nor do they show that damages would not be an adequate remedy if the application is refused.
In view of the above, it is my humble opinion that this appeal is frivolous and devoid of merit. It is accordingly dismissed with a cost of N100,000.00 to the Respondents.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Abubakar Mu’azu Lamido, JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide by the conclusions reached therein.
This appeal is against the refusal of the lower Court to grant prayers for orders of interlocutory injunction and maintenance of status quo. It is elementary that the prayers sought for and refused by the lower Court were an appeal to the discretionary jurisdiction of that Court. It is trite that when a Court is called upon to exercise its discretion in favour of an application, it must ensure that it does not act arbitrarily but judicially and judiciously based on sound principle of law and by giving weight to relevant considerations – First Fuels Ltd Vs NNPC (2007) 2 NWLR (Pt 1018) 276, Nigerian Laboratory Corporation Vs Pacific Merchant Bank Ltd (2012) 15 NWLR (Pt 1324) 5()5. Discretion is a very fluid situation and when a Court is invited to exercise its discretion one way or the other, the Court has to take cognizance of the very facts of the case before it – Bello Vs Yakubu (2008) 14 NWLR (Pt 1106) 104. A Court must always exercise its discretion only on the basis of the materials placed before it and on no extraneous considerations. See CFAO (Nig) Plc Vs Sanu (2008) 15 (Pt 1109) 1.
Thus, the Courts have consistently held that an applicant who seeks the exercise of a Court’s discretion in his favour has a duty to place before the Court sufficient materials to satisfy the Court that he is entitled to a favourable exercise of the Court’s discretion. See Alamieyeseigha Vs Federal Republic of Nigeria (2006) 16 NWLR (Pt 1004) 1, In re: NDIC (Liquidator of Alpha Merchant Bank Plc) Adesanya Vs Lawal(2007) 7 NWLR (Pt 1032) 54 and SCOA (Nig) Plc Vs Omatshola (2009) 11 NWLR (Pt 1151) 106. The applicant has the duty to support his application with all necessary evidence and it is the corresponding duty of the Court to determine whether the applicant had discharged his duty in that regards. If he fails, it is just right and fair that the Court should refuse to exercise its discretion in his favor. See Solanke Vs Somefun (1974) 1 SC 141, University of Lagos Vs Aigoro (1985) 1 NWLR (Pt 1) 143, Ali Pindar Kwajafa Garage Ltd Vs Borno State Water Corporation (2009) 17 NWLR (Pt 1171) 429.
By refusing to grant the prayers sought, the lower Court was of the view that the Appellants did not supply sufficient materials to sustain the prayers and it refused to exercise its discretion in favour of the Appellants thereby. It is settled that in an appeal against the exercise of discretion by a lower Court, an appellate Court will not interfere with the decision simply because if faced with a similar application it would have exercised the discretion differently. It is the duty of an appellant who appeals against the exercise of discretion by a lower Court to satisfy the appellate Court that the lower Court did not exercise its discretion judicially and judiciously. It is not for the appellant to repeat the same argument before the appellate Court in the hope that it would exercise its discretion differently. See Lauwers Import-Export Vs Jozebson Industries Co Ltd (1988) 3 NWLR (Pt 83) 429, Minister Petroleum & Mineral Resources Vs Expo Shipping Linc (Nig) Ltd (2010) 12 NWLR (Pt 1208) 261, Lafferi (Nig) Ltd Vs NAL Merchant Bank Plc (2015) 14 NWLR (Pt 1478) 64, Mangat vs Mangai (2017) LPELR-4712(CA).
In Usman Vs Abubakar (2021) LPELR-53471 (CA), this Court explained the point further thus:
“This appeal is against the exercise of discretion by the lower Court. It is trite law that an appellate Court will only interfere with the exercise of judicial discretion by a lower Court if it is shown that there has been a wrongful exercise of discretion such as where the lower Court acted under misconception of law or under misapprehension of fact in that it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere – Ntukidem Vs Oko (1986) 5 NWLR (Pt 45) 909, Okeke Vs Oruh (1999) 6 NWLR (Pt 606) 175, Eye Vs Federal Republic of Nigeria (2018) LPELR-43599(SC), Elf Petroleum Plc Vs Umnah (2018) LPELR-43600(SC), Alioke Vs Oye (2018) LPELR 45153(SC).”
I agree with the finding in the lead judgment that the Appellants failed to make out a credible case establishing any of the recognized situations in which this Court will interfere with the exercise of discretion by the lower Court. This Court thus has no business making such interference.
I too thus find no merit in the appeal and I hereby dismiss same. I affirm the decision contained in the ruling of the High Court of Kano State delivered by Honorable Justice N. S. Umar, Chief Judge, on the 14th of January, 2020. I abide by the order on costs in the lead judgment.
USMAN ALHAJI MUSALE, J.C.A.: I have read in draft the judgment delivered by my learned brother, ABUBAKAR MU’AZU LAMIDO, JCA in this appeal. I entirely agree with the judgment and the way the issues were treated by My Lord. I adopt the reasoning and conclusion reached as mine and find that the appeal is unmeritorious. The appeal is equally dismissed by me.
I abide by the consequential orders made therein.
Appearances:
HARUNA MUSA MOHAMMED, ESQ. For Appellant(s)
SAGIR SULEIMAN GEZAWA, ESQ., with him, Yusuf Abdul, Esq. – for 1st Respondent. For Respondent(s)