MR KAYODE BAKARE & ANOR v. MRS DUPE BAKARE & ORS
(2011)LCN/4946(CA)
In The Court of Appeal of Nigeria
On Thursday, the 1st day of December, 2011
CA/I/M/98/2006
RATIO
ADMINISTRATOR OF AN ESTATE: IMPLICATION OF RESTRAINING AN ADMINISTRATOR OF AN ESTATE FROM FURTHER ACTING AS SUCH
A person can only act as an administrator of an estate pursuant to letters of administration granted by the Probate Registrar. When he is restrained from further acting as such administrator; the reason for which the letters of administration were granted has been undermined, and it seems to me tantamount to revocation of the letters of administration. The appellants have already been appointed administrators by the letters granted by the Probate Registrar. Granting an interlocutory order stopping them from further acting as administrators is a case of granting an order of injunction for a completed act. PER CHINWE E. IYIZOBA, J.C.A.
INTERLOCUTORY INJUNCTION: EFFECT OF GRANTING AN APPLICATION FOR INTERLOCUTORY INJUNCTION
In Ezebuilo v. Chinwuba (supra). Tobi JCA (as he then was) observed: “By an interlocutory injunction, the res is kept in its original form and content pending the final determination or conclusion of the case. And the word “original” here means the position of the res at the time of the commencement of the action by the plaintiff.” PER CHINWE E. IYIZOBA, J.C.A.
INTERLOCUTORY INJUNCTION: CIRCUMSTANCE IN WHICH AN APPLICATION FOR INTERLOCUTORY INJUNCTION SHOULD NOT BE GRANTED
If damages would be adequate compensation and the defendant in a financial position to pay, no interlocutory injunction should be granted, however strong the plaintiff s claim may appear to be at that stage. See Ikechukwu v. Iwueo (1989) 2 NWLR (Pt. 101) 99 at 106. PER CHINWE E. IYIZOBA, J.C.A.
DUTY OF THE COURT: DUTY OF THE COURT TO RESTRICT ITSELF TO THE APPLICATION AND AFFIDAVIT EVIDENCE BEFORE HIM AND NOT ADDRESSES OF COUNSEL
…it is trite and settled law that the court should restrict itself to the application and affidavit evidence before him and not addresses of counsel. See Niger Construction Ltd v. Okudbeni (1987) 4 NWLR (Pt.67) 787: Emokpae v. University of Benin [2002] 17 NWLR (Pt.795) 139 at 151 G-H… PER CHINWE E. IYIZOBA, J.C.A.
INTERLOCUTORY INJUNCTION: PURPOSE OF AN INTERLOCUTORY INJUNCTION
The purpose of an interlocutory injunction is to maintain the status quo ante bellum pending the determination of the suit. See: Onyesoh vs. Nnebedun (supra). PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
INJUNCTION: WHETHER A COURT CAN GRANT THE SUBSTANTIVE INJUNCTIONS SOUGHT IN THE MAIN CASE AT THE INTERLOCUTORY STAGE OF THE SUIT
The interlocutory injunctions granted by the trial court are such that, upon a careful examination, they are tantamount to a grant of the substantive injunctions sought in the main case. Therefore, the main issues to be tried in the substantive suit appear to have been pronounced upon and determined by the trial court at an interlocutory stage of the suit. This is wrong in law. See NIGERIAN CIVIL SERVICE UNION v. ESSIEN (1985) 3 NWLR (Pt.12) 306. PER MOORE A. A. ADUMEIN, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. MR KAYODE BAKARE
2. MRS BIOLA DARE Appellant(s)
AND
1. MRS DUPE BAKARE
2. MS. AMOKE BAKARE
3. MRS. BISI SHUAIBU – PLAINTIFFS/RESPONDENTS
4. MS. BIOYE BAKARE
5. MS. BOLANLE BAKARE
(Suing for themselves and on behalf of other beneficiaries of the estate of Late Chief Saliudeen Bolaji Bakare)
6. PROBATE REGISTRAR … 3RD DEFENDANT/RESPONDENT
7. MRS. YINKA OSBORNE ….4TH DEFENDANT/RESPONDENT Respondent(s)
CHINWE E. IYIZOBA, J.C.A. (Delivering the Leading Judgment): On the 13th of June, 2003 the plaintiffs/respondents brought an action at the High court of Osun State, Ilesha in suit No. HIL/36/2003 against the 1st to 3rd defendants praying for:
1. An Order revoking the Probate Letters of Administration dated 23rd November 2000 granted to the 1st and 2nd Defendants by the 3rd Defendant in respect of the estate of Chief Salaudeen Bolaji Bakare (deceased) on the ground that it was obtained by fraud and/or misrepresentation.
2. An order of Court discharging the present purported administrators and appointing the 3rd defendant as the sole administrator with the sole purpose of convening a meeting of the estate of Chief Salaudeen Bolaji Bakare (deceased) within 60 days from the date of judgment and to elect or appoint new administrators for the estate in place of the 1st and 2nd Defendants.
3. An order directing the 1st and 2nd defendants to furnish and verify the accounts of the real and personal estate of Chief Salaudeen Bolaji Bakare (deceased) as per the letters of administration dated 23rd November 2000 which have come into their possession since the death of the deceased on 21st January 1989 till date.
4. An order directing the 1st and 2nd Defendants to render an up to date account of all proceeds, rent and other incomes so far received and or collected by the 1st and 2nd Defendants on the estate known to belong to Chief Salaudeen Bolaji Bakare as per letters of administration dated 23rd November 2000.
The Plaintiffs/respondents also filed along with their suit, a motion on notice praying the court for the following interlocutory orders:
1. Interlocutory order restraining the 1st and 2nd Defendants from further acting as administrators of the estate of Chief Salaudeen Bolaji Bakare deceased pursuant to the probate letters of administration dated 23rd November 2000 granted by the High Court of Justice Osun State of Nigeria pending the hearing and determination of this suit
2. Order directing the 1st and 2nd defendants to pay all proceeds received from the estate accruing; collected yet to be received by them from 2nd January 1989 till date into an interest yielding account in the name of the Chief Registrar of the High Court pending hearing and determination of the suit.
3. Order of court directing all tenants and or lessees of properties/buildings listed in the probate Letters of Administration dated 23rd November 2000 to forthwith pay their rents in the name of the Chief Registrar of the Honourable Court pending the hearing and determination of this suit.
4. An order directing the 1st and 2nd Defendants to furnish the honourable court with details of all proceeds, rents and monies collected and or received by the 1st and 2nd defendants in respect of the estate of the deceased and to pay same into an interest yielding account with First Bank PLC or any other reputable bank as the court may deem fit to order, same account to be kept in the name of the Chief Registrar of this Court pending the determination of this suit.
The defendants/appellants filed a counter affidavit in opposition to the motion on notice. It is necessary to point out that the 4th defendant/respondent Mrs. Yinka Osborne had initially been joined in the suit as 7th plaintiff. She applied for her name to be struck off as a plaintiff on the ground that she was not aware of and never authorized the institution of the action. The application was taken and granted on 31/5/2003 without opposition by the plaintiffs. The plaintiffs were ordered to amend their Pleadings to reflect the change of parties and to serve same on the 7th plaintiff who had then been made the 4th defendant. Without effecting the amendment, the plaintiffs proceeded to move their application for injunction against the defendants with the processes still reflecting Mrs. Yinka Osborne as the 7th plaintiff. After due consideration of the written submissions of counsel on the motion for injunction, the trial judge in a reserved ruling delivered on 27/7/04, granted the application in part as follows:
(a) The 1st and 2nd defendants are hereby restrained from further acting as administrators of the estate of Chief Salaudeen Bolaji Bakare pursuant to probate letters of administration dated 23/11/2000 pending the final determination of this suit.
(b) All proceeds accruing from the estate are to be paid into an interest yielding account in First Bank of Nigeria Plc, Osogbo in the name of the Chief Registrar of the High Court of Justice Osun State pending the final determination of this suit.
(c) All tenants/lessees of properties/buildings listed in probate letter of administration dated 23/11/2000 are to forthwith pay their rents into the said interest yielding account opened in the name of the Chief Registrar.
(d) An order of accelerated hearing of this suit is hereby granted.
Aggrieved by this ruling, the 1st and 2nd defendants/appellants filed a notice of appeal containing six grounds of appeal. Briefs were filed and duly exchanged. From the six grounds of appeal, the appellants formulated a single issue for determination:
“Whether in all the circumstances of this case, the learned trial judge ought to have granted the reliefs sought at the interlocutory stage or at all.”
In their brief of argument, the 2nd – 5th respondents also formulated a single issue for determination:
“Whether having regard to the facts and circumstances of this case, the 2nd – 5th respondents could be said not to be entitled to the reliefs granted by the learned trial judge?”
On the 13th of July, 2009, this court then sitting at Benin had granted an application by the 1st and 7th respondents, Ms Dupe Bakare and Mrs Yinka Osborne to change their counsel. The result was that the law firm of George Ikoli & Okagbue now appeared for the 2nd to 5th respondents only while Sofunde Osakwe Ogundipe & Belgore now represented the 1st and 7th respondents. It is pertinent to mention that in the affidavit in support of the application for change of counsel it was deposed on behalf of the 1st respondent that she never instructed any counsel to institute or prosecute the action leading to this appeal; that she was never privy to any meeting where it was agreed that this action should be initiated and was never informed by the other claimants herein of their intention to commence this action in a representative capacity; that she has no intention to pursue any of the claims/reliefs in this suit against the above mentioned defendants, rather she wished for an immediate distribution of the estate as her only interest is her share of her late father’s estate. Consequently, no brief was filed on behalf of the 1st and 7th respondents. Further, during the hearing, the application of O.J. Fagbemi Esq., appellants’ counsel to be allowed to offer oral address on certain points in the respondents’ brief or to be given an adjournment to file a reply brief was vehemently opposed by Mr. Alalenu for the 2nd to 5th respondents on the ground that their brief was filed on 24/3/11 and that Mr. Fagbemi had 7 months to file a reply brief if he had wanted to file one. He urged us to refuse the application as it was made in bad faith. Mr. Fagbemi’s application was refused. The parties thereupon adopted their briefs.
In his argument on the sole issue, O. J. Fagbemi Esq. Counsel for the appellants referred to the case of Kotoye v CBN (1989) 1 NWLR (Pt. 98) 419 at 441 C – H where Nnaemeka Agu JSC (of blessed memory) set out the factors which a court must consider in deciding whether or not to grant an interlocutory order of injunction. Learned counsel submitted that in addition to those factors, it is the duty of the learned trial judge not to grant an injunction but to rather order accelerated hearing where the hearing of an application for injunction would mean a trial of a case twice first on the affidavits then again oral evidence as prescribed in the cases of John Holt Nis v African Workers Union of Nigeria and Cameroon (1963) ALL NLR 385: Nigeria Civil Service Union v Essien [1985] 3 NWLR (Pt.12) 306: Peter E Ventures v Gazasonner Industries Ltd [1998] 6 NWLR (Pt ) 619. Counsel further contended that it is the duty of the trial judge not to grant an injunction where the orders sought are final in nature or where the orders are sought to be made against persons not parties to the proceedings. Okpokiri v Okpokiri [2003] 3 NWLR (Pt. 649) 461 at 475: Adenuga v Odumeru [2003] 8 NWLR (Pt 821) 163. Counsel further submitted that injunctions are generally not granted to restrain completed acts and that the learned trial judge in granting the injunction sought ignored the principles set out in the above cited cases. Referring further to the cases, counsel submitted that there was no difference in practical terms between the final orders sought in the substantive suit and the orders sought in the interlocutory application and that the proper order to make in such circumstances was to refuse the injunctive orders or keep the application in abeyance and order accelerated hearing. See Okpokiri v Okpokiri [2000] 3 NWLR (pt.649) 461 at 475. Other submissions made by counsel can be summarized thus:
1. The act of appointing the appellants administrators was a completed act. What was there for the honourable court to restrain?
2. Orders were made against tenants who were not parties in the suit. No person had been appointed to manage the estate in place of the appellants.
Not being parties to the suit, the tenants could not be compelled to pay rent into the account opened in the name of the Chief Registrar.
3. The learned trial judge failed to give due consideration to the case made out by the appellants as there were sufficient materials before the court to create a compelling case for refusal of the injunction.
4. The court in reaching its decision relied on extraneous material such as ipse dixit of counsel from the bar in reaching its conclusions.
5. The orders were unnecessary as the estate consists mainly of buildings which cannot be validly transferred during the pendency of the case. The fear of the respondents that the appellants would sell off the properties could have been allayed by an order directing the appellants not to alienate the property.
Counsel in adopting his brief urged us to allow the appeal and remit the case back to the lower court for accelerated hearing.
Learned counsel for the 1st and 7th respondents, Cyprian Egbuna informed the court that they conceded to the prayers of the appellants.
In his brief of argument, Mr. Alalenu for the 2nd – 5th respondents relying on the cases of Ezebilo v Chinwuba [1997] 7 NWLR (Pt.511) 108 at 123 and Kelvin Nwosu v Minister of Housing & Urban Development [2005] 11 NWLR (Pt. 936) 441 at 458 submitted that where an applicant satisfied all the conditions laid down by law for the grant of an interlocutory injunction, the court in its equitable jurisdiction would be inclined to exercise its discretion in the applicant’s favour and protect the res during the course or period of litigation. Learned counsel citing a number of cases on interlocutory injunctions including Kotoyo v CBN (supra). Obeya Memorial Specialist Hospital & anor v AG Fed & Anor (1987) 2 NSCC 961 examined the conditions required for the grant of an application for injunction namely, existence of legal right; balance of convenience and adequacy of damages etc. Counsel further analyzed the facts deposed to in the affidavits and submitted that the decision of the lower court restraining the appellant from further acting as administrators of the estate of the deceased pending the determination of the main suit was made by the learned trial judge to preserve the estate from being dissipated until the issues in controversy between the parties can be tried and determined by the court. On the question of injunction not being granted for completed acts, counsel submitted that the injunction granted was to stop the appellants from further acting as administrators of the estate of the deceased being a continuous wrong and not to restrain them from being appointed as administrators. Counsel further submitted that the case of Adenuga v Odumeru (supra) on the grant of order of injunction against non parties is irrelevant as the order made by the lower court was against the appellants and not any non party.
Counsel finally urged us to dismiss the appeal and uphold the judgment of the lower court.
Mr. Biodun Badiora for the 6th respondent, the Probate Registrar stated that they did not file any brief but would abide by the judgment of the court.
In his ruling at page A85 of the record of appeal, the learned trial Judge said:
“I have observed that the reliefs sought in this application are similar to the claim in the statement of claim. I will therefore restrict myself to reliefs (1) (2) and (3) of the motion which read thus:
1. Interlocutory order restraining the 1st and 2nd Defendants from further acting as administrators of the estate of Chief Salaudeen Bolaji Bakare deceased pursuant to the probate letters of administration dated 23rd November 2000 granted by the High Court of Justice Osun State of Nigeria pending the hearing and determination of this suit
2. Order directing the 1st and 2nd defendants to pay all proceeds received from the estate accruing; collected yet to be received by them from 2nd January 1989 till date into an interest yielding account in the name of the Chief Registrar of the high Court pending hearing and determination of the suit.
3. Order of court directing all tenants and or lessees of properties/buildings listed in the probate Letters of Administration dated 23rd November 2000 to forthwith pay their rents in the name of the Chief Registrar of the Honourable Court pending the hearing and determination of this suit.”
It is my view that relief (1) above also suffers from the problem identified by the learned trial Judge. Irrespective of the language used, by implication its import is synonymous to a grant of claim (1) in the substantive suit. I had earlier set out the claims of the respondents in the substantive suit in the lower court. An examination of these four heads of claim will reveal that the main concern of the respondents as plaintiffs was to get the court to revoke the letters of administration granted to the appellants and thereby stop them from administering the estate of their father. The second head of their prayer was for an order of court discharging the purported administrators and appointing the 6th respondent herein as the sole administrator for a specific purpose. When the lower court granted the order for interlocutory injunction restraining the appellants from further acting as the administrators of the estate of Chief S.B. Bakare (deceased), has the lower court not granted at an interlocutory stage the prayers of the respondent in the substantive suit? The argument of learned counsel for the 2nd – 5th respondents is that the injunction granted was to stop the appellants from further acting as administrators of the estate of the deceased being a continuous wrong and not to restrain them from being appointed as administrators and therefore that the injunction granted was not in respect of a completed act. The use of the word “continuous wrong” by the respondents’ shows that as far as they are concerned the matter is settled but whether or not the appellants are wrongly administering the estate is yet to be determined in the substantive suit. A person can only act as an administrator of an estate pursuant to letters of administration granted by the Probate Registrar. When he is restrained from further acting as such administrator; the reason for which the letters of administration were granted has been undermined, and it seems to me tantamount to revocation of the letters of administration. The appellants have already been appointed administrators by the letters granted by the Probate Registrar. Granting an interlocutory order stopping them from further acting as administrators is a case of granting an order of injunction for a completed act. In Ezebuilo v. Chinwuba (supra). Tobi JCA (as he then was) observed: “By an interlocutory injunction, the res is kept in its original form and content pending the final determination or conclusion of the case. And the word “original” here means the position of the res at the time of the commencement of the action by the plaintiff.” The position at the commencement of the action was that the appellants had been appointed administrators and were already administering the estate. Maintaining the status quo means leaving things as they are. Any order necessary to preserve the estate could have been made without necessarily restraining the appellants from further administering the estate. Their right or power to administer the estate is primarily what the case is all about. The order of the lower court more or less determined the issue at an interlocutory stage. See Nigerian Civil Service Union v. Essien (1985) 3 NWLR (Pt. 12) 306 at 316 where Nnaemeka-Agu JCA (as he then was) stated:
“In this state of the facts, it appears to me that…..the learned trial Judge was in error to have proceeded to hear and determine the application for injunction the affidavit in support of which depended largely on the main issue which had been joined in the substantive suit at that stage.”
This apart, the orders of the trial judge as granted has created a serious vacuum.
The trial Judge restrained the appellants from further acting as administrators of the estate without appointing anyone to act in their place. In other words no provision was made for the management or administration of the estate upon implementation of the orders. Contrary to the contention of the respondents, the learned trial judge did make an order against non parties to the suit. The learned trial Judge ordered all tenants and/or lessees of properties/buildings listed in the probate Letters of Administration dated 23rd November 2000 to forthwith pay their rents into a designated account in the name of the Chief Registrar of the Honourable Court pending the hearing and determination of the suit. These tenants and lessees were not parties to the suit. They cannot be compelled to obey the order. If they refuse to pay their rent, the appellants having been restrained from acting as administrators without any replacement, there is no one to take steps to compel them to pay. Thus the effect of the lower court’s order restraining the appellants from further acting as administrators instead of preserving the estate will lead to its dissipation. Indeed a tenant aware of the existence of the order will most likely refrain from paying further rent until the determination of the suit.
The affidavit in support of the motion for injunction was to the effect that the 1st and 2nd defendants without informing the plaintiffs and without their consent applied for and were granted letters of administration of the estate of their deceased father by the 3rd defendant. It was also averred that the 1st and 2nd defendants deliberately failed to include the names of the plaintiffs as beneficiaries of the estate and that they have collected rents from tenants in the properties listed in the letters of administration which run into millions without rendering accounts; and the plaintiffs fear they may sell off the properties of the estate.
The defendants in their counter affidavit deposed that the 1st defendant is the only surviving son of the deceased who had 9 children by 5 different women and was thus subject to Yoruba customary law; that the estate of their deceased father was to the knowledge of the plaintiffs managed by Prof Jegede until mid 1998 when due to harassment by some of the plaintiffs he declined to act further on behalf of the estate; that to the knowledge of the entire family, the 1st and 2nd defendants applied for letters of administration with requisite notices duly published in the newspapers as required by law; that no objection was entered and letters of administration were subsequently granted. The defendants averred that contrary to the claim of the plaintiffs, the names of all the children of the deceased were disclosed in the application for grant of letters of administration in the form of declaration of next of kin, copy of which was annexed to the counter affidavit as an exhibit; that they have regularly paid out such sums as the estate could afford to the plaintiff while trying to resolve the litigation on various issues surrounding the estate; that this has been compounded by disruptive actions such as the present suit; that a grant of any of the orders of interlocutory injunction sought will further delay the gathering of the estate for sharing amongst the beneficiaries.
There is clearly conflict in the affidavits filed by the parties as to whether the appellants obtained the consent of the respondents before applying for the letters of administration and as to whether the names of the respondents were disclosed as beneficiaries. The respondents did not deny that the 1st appellant is the only surviving son of their deceased father. Whether the grant of letters of administration to the appellants is proper or not is a matter for the substantive suit.
The trial judge ought not to have granted the order restraining them from further administering the estate before hearing the substantive suit. One of the principles for consideration in deciding whether or not to grant interlocutory injunction is whether if the plaintiff were to succeed at the trial in establishing his case, damages would be adequate compensation and the defendant would be in a financial position to pay. If damages would be adequate compensation and the defendant in a financial position to pay, no interlocutory injunction should be granted, however strong the plaintiff s claim may appear to be at that stage. See Ikechukwu v. Iwueo (1989) 2 NWLR (Pt. 101) 99 at 106.
The learned trial Judge in his ruling at page A88 of the record of appeal said:
“What injury will be done to the applicant if this application is refused?
According to him, the estate might be dissipated. See paragraph 24 of the applicants’ affidavit. Learned counsel for the applicant also added in his address that the estate is so colossal that the defendants are not and cannot be in a position to afford to pay any damages in the long run”
There was no affidavit evidence that the appellants would not be able to pay.
Learned trial Judge apparently relied on the address of counsel in filling the gap.
Learned counsel for the appellants is right and it is trite and settled law that the court should restrict itself to the application and affidavit evidence before him and not addresses of counsel. See Niger Construction Ltd v. Okudbeni (1987) 4 NWLR (Pt.67) 787: Emokpae v. University of Benin [2002] 17 NWLR (Pt.795) 139 at 151 G-H:
The appellants had argued in their brief and rightly in my view, that the 2nd order directing all proceeds accruing from the estate to be paid into an interest yielding account in the name of the chief registrar of the High Court of Justice Osun State amount to a grant of an order of account which is a final relief in the suit. The appellants are right that any payment made into the said account would amount to a statement that such sum is the amount due to the estate in their possession, and that such a statement would amount to an account which is a relief claimed in the substantive suit.
The respondents in their brief of argument kept harping on the fact that all they hoped to achieve by the application was to be able to preserve the properties of the estate and the trial Judge expressed views along the same line. But by restraining the appellants and not appointing any other person to administer the estate, the learned trial judge by the orders he made put the properties in greater jeopardy. In the circumstances each of the single issue formulated by the appellants and the 2nd 5th respondents herein are hereby answered in the negative. This appeal succeeds. The 1st, 2nd and 3rd orders made by the learned trial Judge (a) restraining the appellants from further acting as administrators of the estate, (b) That all proceeds accruing from the estate are to be paid into an interest yielding account in First Bank of Nigeria Plc, Osogbo in the name of the Chief Registrar of the High Court of Justice Osun State and (c) that all tenants/lessees of properties/buildings listed in probate letter of administration dated 23/11/2000 are to forthwith pay their rents into the said interest yielding account opened in the name of the Chief Registrar are hereby set aside.
There was no appeal against Order (d) granting accelerated hearing of the case.
The order remains. This case is remitted back to the High Court of Osun State Ilesha for speedy trial based on the order for accelerated hearing by another Judge, other than Awotoye J. I make no order as to costs.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by my learned brother, Iyizoba, JCA. I am in complete agreement with his Lordship’s reasoning and conclusions, which I adopt as mine.
The law is well settled that an injunction is not a remedy for a completed act. An injunction will not be granted even where the act complained of is irregular. See A.G. Anambra State vs. Okafor (1992) 2 NWLR (224) 396 at 419 – 420 H – A; (1992) LPELR- S.C/1721/988 also Ideozu & Ors. Vs. Ochoma & Ors. (2006) 4 NWLR (970) 364.
The crux of the case of the 2nd – 5th Respondents at the court below is that the grant of Letters of Administration in respect of the Estate of the late Chief S. B. Bakare in favour of the Appellants was obtained by fraud and misrepresentation. They therefore sought an order revoking the grant, appointing the 3rd Defendant (6th Respondent in this appeal) as sole administrator for the purpose of convening a meeting of the Estate to elect or appoint new administrators and an order directing the Appellants to render accounts of all proceeds, rents and income received and collected by the Appellants in respect of the Estate.
All the reliefs are premised on the existing grant of Letters of Administration. Any order restraining the Appellants from administering the estate in furtherance of the Letters of Administration is tantamount to determining the issue in contention in the substantive suit at the interlocutory stage. In the instant case the interlocutory orders made have the effect of temporarily revoking the Letters of Administration before the court has had an opportunity to determine the merits of the case. The courts have always frowned on this approach. See: Onyesoh vs. Nnebedun & Ors. (1992) 3 SCNJ 129; (1992) LPELR-S.C. 276/1989.
The purpose of an interlocutory injunction is to maintain the status quo ante bellum pending the determination of the suit. See: Onyesoh vs. Nnebedun (supra). The status quo ante bellum in the instant case is that the Appellants were the beneficiaries of a grant of Letters of Administration in respect of the Estate of late Chief S. B. Bakare and were administering the Estate accordingly. The best way to preserve the res in an action of this nature is to order an accelerated hearing of the substantive suit and to advise the parties against taking any steps with regard to the Estate that would foist a fait accompli on the court. Unfortunately the orders made by the learned trial Judge have the opposite of the desired effect. Rather than preserve the res pending the determination of the suit, the orders made have the effect of subjecting the Estate to dissipation, mismanagement and financial loss.
I therefore agree that this appeal has merit and ought to be allowed. I allow it and abide by the consequential orders in the lead judgment including the order for costs.
MOORE A. A. ADUMEIN, J.C.A.: I read before now the judgment just delivered by my learned brother CHINWE E. IYIZOBA, JCA. I agree with His Lordship that this appeal has merit.
The prayers in the respondents’ substantive suit are mainly injunctive. The interlocutory injunctions granted by the trial court are such that, upon a careful examination, they are tantamount to a grant of the substantive injunctions sought in the main case. Therefore, the main issues to be tried in the substantive suit appear to have been pronounced upon and determined by the trial court at an interlocutory stage of the suit. This is wrong in law. See NIGERIAN CIVIL SERVICE UNION v. ESSIEN (1985) 3 NWLR (Pt.12) 306.
For these reasons and the more elaborate reasons given in the lead judgment, I too allow the appeal.
I abide by all the orders in the lead judgment.
Appearances
O.J. FAGBEMI ESQFor Appellant
AND
CYPRIAN EGBUNA ESQ for the 1st & 7th respondents
A. ALALENU ESQ for the 2nd and 5th respondents
BIODUN BADIORA ESQ Principal State Counsel OsunFor Respondent
