NABEGU v. MANTAU & ORS
(2020)LCN/14410(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Thursday, July 23, 2020
CA/K/146/M/2020(R)
Before Our Lordships:
Obietonbara O. Daniel-Kalio Justice of the Court of Appeal
Saidu Tanko Hussaini Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Between
AMINU BABA NABEGU APPELANT(S)
And
1. GIGO MANTAU (GIGO MANTU) 2. KABIRU GIGO 3. JOSEPH MAJU 4. ISIYAKU GALADIMA RESPONDENT(S)
RATIO
WHETHER OR NOT THE GUIDING PRINCIPLES OF AN INJUNCTION PENDING APPEAL ARE THE SAME AS THE GUIDING PRINCIPLE FOR STAY OF EXECUTION OF JUDGEMENT
Indeed the guiding principles of an injunction pending appeal are the same as the guiding principles for stay of execution of judgment. An interlocutory injunction serves a different purpose. Also referred to as preliminary injunction, it is defined by Black’s Law Dictionary, Ninth Edition as ‘a temporary injunction issued before or during trial to prevent an irreparable injury from occurring before the Court has a chance to decide a case’. With regard to the application for an interlocutory injunction here,it is clear that this Court has already decided the appeal, so the question of ‘a chance to decide’ the case does not arise. In the case of ONYESOH V. NNEBEDUN (1992) 3 NWLR (Pt. 229) p. 318-322; (1992) LPELR-2742 (SC) the Supreme Court stated clearly the purpose of an interlocutory injunction thus:
“The remedy of interlocutory injunction as its name implies is temporary. Being an equitable remedy, it is also discretionary. Hence, the central objective of the Court granting an interlocutory injunction is to exercise its discretion to keep the parties in status quo pending the determination of the substantive suit. Hence the basis of the decision to grant the application is that the Court has before it a substantive action seeking for the determination of the issue, subject matter of the application”. PER DANIEL-KALIO, J.C.A.
CONDITIONS TO SATISFIED TO SUCCEED IN AN APPLICATION FOR INJUNCTION PENDING APPEAL
Assuming arguendo, that what the applicant meant was an injunction pending appeal, then in order to succeed, the applicant must satisfy some conditions. These are (1) the grounds of appeal must raise substantial legal issues in an area of law that is novel or recondite; (2) the application must disclose special circumstances why the judgment should be stayed; (3) the application must disclose why matters should be put in status quo or the need to preserve the res so as not to render the appeal nugatory. See SPDC (NIG) LTD V. AMADI & ORS (2011) LPELR-3204 (SC). Looking at the grounds of appeal attached to the application as Exhibit ABA2, the grounds are certainly not novel or recondite. There is nothing in the affidavit in support of the application or the further and better affidavit of the applicant that show special circumstances. To establish special circumstances to warrant the grant of an injunction pending appeal, an applicant must show (a) that the subject matter will be destroyed if the injunction is not granted; (b) that a situation of hopelessness would be foisted on the Court, especially an appellate Court; (c) that execution will paralyze the right of appeal; (d) that the order of the Court would be rendered negatory and (e) that execution will prevent a return to status quo if the appeal succeeds. PER DANIEL-KALIO, J.C.A.
OBIETONBARA O. DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This Ruling is on an application for an injunction pending appeal to the Supreme Court. The applicant Aminu Baba Nabegu was the Respondent in Appeal No. CA/K/502/2018 decided by this Court on 15/4/2020. The Respondents in the application under consideration were the Appellants in the appeal. Judgment was in their favor in the appeal. The Appeal Court set aside the judgment of the lower Court which was in favor of the Respondent. This is the background of the application now being considered. In the application made by way of a motion on notice filed on 11/6/2020, the applicant prayed this Court for an Order of Interlocutory Injunction to restrain the 1st, 3rd and 4th Respondents pending the determination of an appeal to the Supreme Court, of the judgment of this Court in Appeal No. CA/K/502/2018 delivered on 14/4/2020. In addition to the affidavit in support of the application, the applicant filed a further and better affidavit on 22/6/2020. The Respondents filed a counter-affidavit in opposition to the application on 19/6/2020. Seeing that the application was rather contentious, this
1
Court ordered the parties to file written addresses. They did as ordered. The applicant filed a written address on 26/6/ 2020 and upon being served with the Respondents’ written address, filed a Reply written address on 3/7/2020. The Respondents’ written address was filed on 1/7/2020.
In the affidavit in support of the application, it was averred that Joseph Maju, the 3rd Respondent in the application, was not awarded judgment at the trial Court and was not an Appellant in the appeal decided by this Court; that the applicant’s claim in respect of land covered by Certificate of Occupancy No. LKN/CON/AG/87/91 was not in issue in the decided appeal as the Appellants in that decided appeal did not lay claim to it; that the judgment of this Court in the said appeal concerning the said Certificate of Occupancy is ambiguous as this Court approbated and reprobated with regard to the land covered by the said Certificate of Occupancy; that at no time was there an application before the trial Court to substitute Joseph Mazadu for Joseph Maju and that Joseph Mazadu and Joseph Maju are not the same person; that Joseph Mazadu whom the judgment of this Court did not
2
favor, attempted to enter the land in order to execute the judgment of this Court; that Joseph Mantau, the 1st appellant in the appeal decided by this Court did not have judgment delivered in his favor yet went to the land on 16/4/2020, a day after the judgment, in an attempt to execute the judgment; that Isiyaku Galadima, who had judgment in his favor as the 4th Appellant was threatening to take over the entire land even though this Court held that the land covered by Certificate of Occupancy No. LKN/CON/AG/87/91 was not in dispute; that the judgment of this Court with regard to Certificate of Occupancy No. LKN/CON/AG/87/91 is ambiguous; that it will lead to a miscarriage of Justice to allow the 1st, 3rd and 4th Respondents to execute the judgment; that the Respondents are not in possession of any part of the land but have made several attempts at entering the land to create a situation of fait accompli in respect of the land; and that unless restrained, the 1st, 3rd and 4th Respondents will enter the land and destroy the crops in it without considering the applicant’s interest in that part of the land covered by the Certificate of Occupancy held not to be in
3
dispute by this Court.
In the Counter-affidavit filed on 19/6/2020, the Respondents averred that the applicant instituted the action at the trial Court against Gigo Mantau, Kabiru Gigo and Joseph Maju as shown in page 4 of the Record of Appeal; that the 4th Respondent applied to be joined in the suit and he was joined as a party; that in duplication, the applicant also applied to join Isyaku Galadima and Joseph Mazadu as parties thereby making the 3rd defendant at the trial Court to appear as both Joseph Maju and Joseph Mazadu; that there is no pending matter in this appeal as to warrant the Interlocutory order sought; that the subject matter is land which is not something that is perishable; that paragraphs 3 (iv)- (viii), (x), (xii) and (xvi), 4 (vii), (x)- (xii), (xix) and (xx) of the affidavit in support of the application challenge the judgment of this Court while paragraphs 4 (xxii), (xxiii) and (xxvi) are speculative; that paragraphs 3 and 4 contain legal arguments/conclusions; and that the Respondents as judgment creditors took over possession of their land in line with the judgment of this Court.
The further and better affidavit in support
4
of the motion on notice largely reiterated the averments in the affidavit in support of the application. However, the further and better affidavit insisted that Joseph Mazadu and Joseph Maju are not the same person.
In the written address filed on 26/6/2020 five issues were raised by the applicant. The issues are on whether this Court is functus officio since the Court has delivered judgment in the matter; whether the interlocutory injunction order sought can be granted; whether a valid appeal has been filed; whether exceptional circumstances have been shown to warrant the granting of the application; and whether the Notice of Appeal contains arguable grounds.
On the Respondents part, two issues were raised. The first has to do with whether an application for an order of interlocutory injunction after a final judgment of this Court has been entered is competent. The second is with regard to whether the applicant has in his depositions shown special and exceptional circumstances to warrant the order of interlocutory injunction sought.
Considering the nature of the application, the issues formulated by the Respondents are more appropriate for the
5
determination of the application. I will therefore consider the submissions of learned Counsel to both parties as they relate to the issues formulated by the Respondents.
On the first issue which relates to the propriety of an interlocutory injunction sought when judgment has been delivered, the applicant’s learned Counsel Felix Jones Osimerha, Esq. submitted that this Court and the Supreme Court to which the appeal lies, have jurisdiction to order stay of an executory judgment as well as order an interlocutory injunction. The Respondents learned Counsel Magaji Mato Ibrahim, Esq on the other hand, submitted that although an injunction simpliciter can be sought before this Court pending an Appeal to the Supreme Court, an interlocutory injunction cannot, since this Court has made a final pronouncement on the rights of the parties in the appeal.
I agree with the Respondents’ learned Counsel. Authorities abound to show that an injunction can be granted pending an appeal. Indeed the guiding principles of an injunction pending appeal are the same as the guiding principles for stay of execution of judgment. An interlocutory injunction serves a different
6
purpose. Also referred to as preliminary injunction, it is defined by Black’s Law Dictionary, Ninth Edition as ‘a temporary injunction issued before or during trial to prevent an irreparable injury from occurring before the Court has a chance to decide a case’. With regard to the application for an interlocutory injunction here,it is clear that this Court has already decided the appeal, so the question of ‘a chance to decide’ the case does not arise. In the case of ONYESOH V. NNEBEDUN (1992) 3 NWLR (Pt. 229) p. 318-322; (1992) LPELR-2742 (SC) the Supreme Court stated clearly the purpose of an interlocutory injunction thus:
“The remedy of interlocutory injunction as its name implies is temporary. Being an equitable remedy, it is also discretionary. Hence, the central objective of the Court granting an interlocutory injunction is to exercise its discretion to keep the parties in status quo pending the determination of the substantive suit. Hence the basis of the decision to grant the application is that the Court has before it a substantive action seeking for the determination of the issue, subject matter of the application”.
The substantive action in
7
this case is the appeal and it has been decided by this Court on 15/4/2020. Therefore the application for an interlocutory injunction in this case is as misconceived as it is incompetent.
Assuming arguendo, that what the applicant meant was an injunction pending appeal, then in order to succeed, the applicant must satisfy some conditions. These are (1) the grounds of appeal must raise substantial legal issues in an area of law that is novel or recondite; (2) the application must disclose special circumstances why the judgment should be stayed; (3) the application must disclose why matters should be put in status quo or the need to preserve the res so as not to render the appeal nugatory. See SPDC (NIG) LTD V. AMADI & ORS (2011) LPELR-3204 (SC). Looking at the grounds of appeal attached to the application as Exhibit ABA2, the grounds are certainly not novel or recondite. There is nothing in the affidavit in support of the application or the further and better affidavit of the applicant that show special circumstances. To establish special circumstances to warrant the grant of an injunction pending appeal, an applicant must show (a) that the subject
8
matter will be destroyed if the injunction is not granted; (b) that a situation of hopelessness would be foisted on the Court, especially an appellate Court; (c) that execution will paralyze the right of appeal; (d) that the order of the Court would be rendered negatory and (e) that execution will prevent a return to status quo if the appeal succeeds. There is nothing in the application that shows the existence of special circumstances. Surely the res (in this case, land) is not such that if not preserved will render the appeal nugatory. There certainly cannot be a situation of hopelessness foisted on the Supreme Court should the application be refused. The execution of the judgment will certainly not paralyze the right of appeal. If the appeal succeeds a return to status quo cannot be prevented. Thus, even if what the applicant had in mind in filing the application was an injunction pending appeal, the application would still have failed. I find that the application is incompetent. It has no merit and is therefore dismissed. N50,000 costs is awarded against the applicant and in favor of the Respondents.
SAIDU TANKO HUSSAINI, J.C.A.: I agree.
9
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the Ruling of my learned brother O. O. DANIEL KALIO JCA, I am in agreement with my learned brother that no special circumstances have been disclosed by the Appellant to warrant the grant of the injunction sought.
None of the grounds have been shown to exist in persuasion of this Court to grant the application.
This application, I agree, lacks merit and I also dismiss it, with the costs, as awarded.
10
Appearances:
FELIX JONES OSIMERHA, ESQ. For Appellant(s)
MAGAJI MATO IBRAHIM, ESQ. For Respondent(s)
