SHINNING STAR NIGERIA LIMITED & ANOR. v. A.K.S. STEEL NIGERIA LIMITED & ORS.
(2010)LCN/3624(CA)
In The Court of Appeal of Nigeria
On Monday, the 15th day of March, 2010
CA/L/558M/2009
RATIO
COURT: DISCRETIONARY POWER OF THE APPEAL COURT TO GRANT OR REFUSE AN INTERLOCUTORY ORDER OF INJUNCTION APPLICATION
The well settled cardinal principle of law is that, an interim or interlocutory order of injunction, as the one being sought by the Applicants, is an equitable remedy by the nature thereof. This court has been vested with an unfetted discretionary power, under the provisions of the 1999 Constitution (section 241 (1) ), the Court of Appeal Act, 2004 (section 15) and the Court of Appeal Rules, 2007 (Orders 4 Rule 6 and 7 Rule 4) to grant or refuse such an application. However, it’s rather trite that exercising of that discretionary power, must be seen to have been duly effectuated not only judicially, but also judiciously. See UNIVERSITYOF LAGOS VS. AIGORO (1985) 1.NWLR (PT.1) 143 at 149, NIGERIAN ARAB BANK LTD. VS. OGUERI (PT.159) 751 at 758 paragraphs D-E. PER I.M.M. SAULAWA, J.C.A.
APPEAL: PRESUMPTION THAT A DECISION APPEALED AGAINST IS RIGHTLY MADE
The law has definitely been well settled, that where a decision or order of a court of competent jurisdiction is not manifestly wrong or illegal, an appellate court (this court inclusive) has an onerous duty to presume that the decision or order appealed against is correct or rightly made, until the contrary is established. See IN RE DIAMOND BANK LTD. (2002). 17 NWLR (PT. 795L 120 at 134 paragraphs. G-H; DENTON-WEST VS. MUOMA SAN (2008) 6 NWLR (PT.1083) 418 at 437 paragraphs – G-H.PER I.M.M. SAULAWA, J.C.A.
COURT: DUTY OF COURT TO DO JUSTICE TO CASES BEFORE IT
Instructively, the court has an onerous duty to guard against resorting to an un- wholesome, retrogressive, and rather abhorrent practice of denying a successful litigant the well deserved reaping of the fruits of his success, unless under very cogent and grave special circumstances. See the very notorious case of VASWANI TRADING COY. VS. SAVALAKH & COY. (1972) 12 SC 77 at 81 – 82, wherein the Supreme Court held, most authoritatively, that such special circumstances would involve the consideration of some collateral circumstances and in some cases, inherent matters, which may tend to destroy the subject matter of the case, and foist upon the court, a situation of complete helplessness, paralyse or frustrate, in one way or the other, the litigants’ exercise of his constitutional right of appeal. PER I.M.M. SAULAWA, J.C.A.
PROCEDURE: PROCESS OF FILING FOR AN APPLICATION FOR STAY OF EXECUTION
the rule is now trite, that an application for stay of execution of judgment, (order or proceedings, as the case may be) pending an appeal ought to first be filed in the court below, and if refused a similar application could then be made to this court within 15 days time limit. See order 7 Rule 3 of the Court of Appeal Rules, 2007 (supra); AKUKALIA VS. GOVERNOR (1986) 5 NWLR (Pt.41) 275; OWO VS. ADETILOYE (1998) 10 NWLR (Pt.570) 488; SARAKI VS. KOTOYE (1992) 9 NWLR (Pt.264) 156.
Naturally, to every general rule, there is an exception. Thus, the exception to the conditions stipulated in order 7 Rule 3 of the Court of Appeal Rules (supra) could be found in Rule 4 of the same order 7, which provides thus:
“4. Wherever under these rules an application may be made either to the court below or to the court it shall not be made in the court (i.e. Court of Appeal) except where there are special circumstances, which make it impossible or impracticable to apply to the court below.” PER I.M.M. SAULAWA, J.C.A.
JUSTICES
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
1. SHINNING STAR NIGERIA LIMITED
2. MR. SATISH CHANDER ILAHYAP Appellant(s)
AND
1. A.K.S. STEEL NIGERIA LIMITED
2. SANJAY KUMAR SHARMA
3. NEMI CHAND KOTHARI
4. CHIEF REGISTRAR OF THE FEDERAL HIGH COURT Respondent(s)
I.M.M. SAULAWA, J.C.A. (Delivering the Lead Ruling): By the instant application, filed on 15th July, 2009, the two Appellants/Applicants have jointly prayed this Court for the following orders:-
1. “AN ORDER staying and/or suspending the order/orders of the Federal High Court Lagos made on the 1st July, 2009 in Suit, No. FHC/L/CS/1 05/06 whereby the said Federal High Court without jurisdiction discharged interfered with and/or over-ruled the existing order/orders of this Court i.e, the Court of Appeal in Suit No. CA/L/783/07 made in its judgment on appeal to it on the 19th March, 2009 pending the determination of the appeal.
2. AN ORDER of interlocutory injunction restraining anyone from acting as the Receiver/Manager of the 1st Respondent except Mr. Olusegun Ajayi appointed by the Chief Registrar of the Federal High Court pursuant to and in the execution of the order/orders of this Court made in its judgment of 19th March, 2009 and further restraining the 2nd and 3rd Respondents from Acting as Directors or of the 1st Respondent thus confirming and/or affirming the orders of this Court in its judgment of 19th March, 2009 in the said Suit No.CA/L/783/07 pending the determination of the appeal.
3. AN ORDER of interlocutory injunction restraining the Chief Registrar of the Federal High Court from complying with the Orders of the trial Court of 1st July, 2009 in so far as they affect him pending the determination of the appeal.
4. AN ORDER joining the Chief Registrar of the Federal High Court to this Suit.
5. For such further or other order or orders which this Honourable Court may deem fit to make in the circumstances, a further affidavit, and 2nd and 3rd further affidavits and reply affidavit, respectively.”
The application in question was supported by a 19 paragraphed affidavit, Attached to the affidavit are the following exhibits: (i) Exhibit WK 1- the judgment of this court, dated 19th March, 2009 in Appeal No. CA/L/782/07; (ii) Exhibit WK 2 – an enrolled order of the Federal High Court, Lagos Judicial Division dated 8th July, 2009 regarding Suit No. FHC/L/CS/1059/06; and (iii) Exhibit WK 3 of the Notice of Appeal dated and filed on 14th July, 2009 against the ruling of the said Federal High Court Lagos delivered by the Hon. Justice Tijjani Abubakar, on 7th July, 2009 in Suit No. FHC/L/CS/1059/06, respectively.
On the part thereof, the Respondents had deposed to a counter affidavit of 89 paragraphs, a further counter affidavit, and a further and better counter affidavit on 9th October, 2009, 26th October, 2009, and 28th October, 2009 respectively.
On 29th October, 2009, when the application came up for hearing, the Court deemed it expedient to direct parties to file and serve their respective written addresses. On 11th January, 2010, when the application last came up for hearing, the parties accordingly adopted their respective written addresses, resulting in reserving the application for ruling. The applicants’ written address was dated 4th November, 2009, and filed the same date. The 1st to 3rd Respondents’ written address, on the other hand, was dated and filed on 10th November, 2009. The submission of the Applicants’ learned senior counsel is contained in pages 1 – 26 of the written address thereof, while the list of authorities cited and relied upon could be found at pages 27 and 28, respectively. A sole Issue has been raised in the said written address for determination, viz:
“Whether it is proper for the Court of Appeal to grant the relief reliefs sought in the motion on notice of the Applicants dated 15th July, 2009.”
It was the submission of the Applicants’ learned counsel that there are several reasons supported by law on why the application should be granted by this Court. An abuse of process of Court is alleged to be one of such reasons that would warrant Court to grant an interlocutory relief where the abuse of process of Court could disrupt, frustrate, over reach and render nugatory the determination of appeal or application pending in the higher court. Instances of multiple abuses were cited and attributed to the Respondent thus:-
4.4. It is not in dispute that there are multiple abuses of process of court by the Respondent. The first occurred.
(a)(i) When the Respondents filed a Notice of Appeal on the 26th March, 2009 against the decision of this court in the Supreme Court.
(ii) The Notice clearly shows that the appeal is against the whole decision of this court.
(iii) In fact, Ground 1 thereof includes a complaint against the decisions of this Court appointing a Receiver/Manager.
(iv) The appeal is still pending in the Supreme Court and is still to be heard and determined.
(v) Whilst the Respondents appeal is pending in the Supreme Court, the same Respondents applied Orally that the Order of this Court appointing Receiver/Manager be discharged and thus engaged.
(b) As if the above was not enough.
(i) The same Respondents applied to this i.e. the Court of Appeal, for a stay of execution of the Order of 19th March, 2009 and for an injunction restraining Mr. Olusegun Ajayi, the Receiver/Manager appointed by the Court from acting.
(ii) It is significant that the Notice of Appeal filed on the March, 2006 complained of the appointment of Mr. Olusegun Ajayi as the Receiver/Manager.
(iii) Even though the Respondents application to restrain Sequn Ajayi from acting is still pending in this court, Same Respondents engaged in self help by applying to trial Court (a lower court) that the Order of this court appointing the Receiver/Manager be discharged.
4.5 It is necessary to emphasize that the Respondent cannot claim to be unaware of their (a) pending appeal in the Supreme Court and (b) of their pending application for injunction and stay in this Court, yet for reasons best known to the Respondents they chose not to disclose these pendencies to the (i) trial Court and (iii) even to this Court in their bulky 89 paragraphs Counter Affidavit of 9th October, 2009 and Further Counter Affidavit of and October, 2009 in this Court.
It is argued that in the present case, there is a multiple abuse of process of Court, and that the step taken by the Respondent would disrupt, frustrate, overreach, and render nugatory the exercise of a determination by the court. Thus, the court can grant as an interlocutory relief, a suspension of the step amounting to the abuse so as to provide a level playing ground. For the above postulation, the learned counsel cited and relied upon the following authorities: AFRICAN INSURANCE COPPORATION VS. JAP CONSTRUCTION NIG. LTD (2003) 13 NWLR (PT. 838) 609 at 636; ABUBAKAR VS. UNIPETROL PLC (2008) 8 NWLR (PT.769) 242 SHUAIBU VS. MUAZU (2007) 7 NWLR (PT.1033) 271; SULU-GAMBARI VS. BUKOLA (2007) 2 NWLR (PT.853) 122, respectively.
The need to protect officers of court and prevent continuing trespass was also given as another reason why such relief as the instant one should be granted by the court. See KWANKWASO VS. GOVERNOR OF KANO STATE (2006) 14 NWLR (PT.1000) 444 paragraphs E- F.
It was postulated that by virtue of Section 389(2) and schedule 11 paragraph 1 of the Companies and Allied Matters Act, Mr. Olusegun Ajayi, appointed by the Chief Registrar of the lower court on 23rd March, 2009 pursuant to the order of this court dated 19th March, 2009 as the Receiver/Manager of the 1st Respondent, has the power to take possession of, collect and get in the property of the 1st Respondent. See UNIBIZ (NIG) LTD VS. C.B.C.L. (NG) LTD (2001) 17 NWLR (PT.713) 534 at 542; N.B.C.I. VS ALFIJIR (MINING) NIG. LTD. (1999) 14 NWLR (PT.638) 176 at 200, per Ogwuegbu, J.S.C.
An allusion was made to the lower court’s order discharging its earlier exparte order appointing Mr. Olusegun Ajayi as Receiver/Manager of 1st Respondent. A question was thus posed as to whether the lower court had the power to discharge an order which had already been executed. It was submitted, that the order of discharge was a “vain order or an order in vacuum.” See U.B.A. VS JARGABA (2007) 11 NWLR (PT. 1045) 247 S.C.; IBIDOKUN VS. ADARALODE (2001) 12 NWLR (PT. 727) 268.
A deliberate distortion of the orders of the court in an effort to achieve the Respondents goal allegedly also constitutes a reason why the relief should be granted. It was argued that the Respondents persuaded the lower court to sit on appeal over this court on the pre of enforcing the order of this court.
Paragraphs 72 and 86 of the 1st Respondents’ counter affidavit of 19th October, 2009 were said to be demonstrably false on account of paragraph 7 of the order of this court, dated 19th March, 2009.
That, the Respondents have not given any meaningful reasons for applying for the discharging of the order of the trial court in question. Reference was made to page 17 of Exhibit WK 5 to the further affidavit, dated 8th September, 2009, to the effect that a plausible explanation is that in an effort at self help and to take over the occupancy, by using the Police, the Receiver/Manager had to be removed by the trial court.
It was further argued that there was no prayer that all the orders of this court be forfeited. See Exhibit AF9 to the 3rd further affidavit, dated 27th October, 2009. That, orders 3 and 4 of the trial court were a nullity on the ground that they were never sought. See OWENA BANK (NIG) LTD. VS. NIGERIAN STOCK EXCHANGE (1997) 8 NWLR (PT.515) 1 S.C.
The orders of the trial court allegedly reflect impertinence, gross recklessness and Scant out respect for this court. Thus, the court has a duty to preserve and protect its authority and dignity and accordingly grant the relief sought. See KWANKWASO VS. GOVERNOR0 OF KANA STATE. (Supra).
It was further argued, that since the trial court had initially made an absolute and unqualified order of stay of further proceedings, it had become functus officio, thus could not legitimately have made orders 2, 5, 4 and 5 contained in the ruling inquestion.
It was argued that its incompetent for the Respondents to enforce the judgment by reason of an abuse of process of court, the finding of fact by the trial court that there is lack of utmost and due diligence would be irrelevant and non-issue.
That, assuming without conceding that there is no abuse of process, it is submitted that only the Court of Appeal can enforce paragraph 7 of its order of 19th March, 2009, since in the absence of a statutory provision, a court cannot delegate its own judicial power. See: ICON (MERCHANT BANK) VS. FBN (MERCHANT BANK) LTD (2003) 12 NWLR (PT. 835) 668.
It was likewise argued, that there has been no valid enforcement (of the order) because the Respondents had failed to comply with order 18 Rules 5 and 6 of the Court of Appeal Rules, 2007, dealing with enforcement of judgments and orders of the court by lower courts. See also Section 287 (2) of the Constitution of the Federal Republic of Nigeria, 1999; order 8 Rules 17 and 18 of the Supreme Court Rules 1985;- COMPLETE HOMES ENTERPRISES NIGERIA LTD. VS. HENTRY STEPHEN’S ENG, NEERONG CO – LTD (1993) 8 NWLR (Pt.316) 208, respectively.
The purported’ enforcement of the judgment in question is, allegedly, a nullity on the grounds that (i) there was no specific directive of the Court of Appeal to the trial court and that (ii) there is no certificate of the judgment under the seal of the Presiding Judge, as distinct from a certified copy of the judgment.
The case of ESERE VS. T. UTARE (1992) 3 NWLR (PT.227) 15 is alleged to be of little assistance to the Respondents, on the grounds that (a) the case concerned with the judgment of a High Court at the Yola Rent Tribunal under order 2 Rule 24 of the judgment Enforcement Rules, made pursuant to the Sheriffs And Civil Process Law, Cap 123 Laws of Northern Nigeria (1963); (b) the provisions of order 5 Rules 4 and 5 of the Court of Appeal Rules, 1981 and Section 251 (2) of the 1979 Constitution were not considered ; and (c) the issue of whether the enforcement could still be valid in itself accounts to an abuse of process of court, were not considered.
The averments in paragraphs 20, 21, 22, 23, 24 and 25 of the Respondents’ counter affidavit regarding the issue of joinder of party were said to have been made in an over sight of the decision of this court in YINKA FOLAWIYO AND SONS LTD. (1991) 7 NWLR (PT. 202) 237 at 245 paragraphs C – E. It was argued, that by virtue of the said authority, the court can order a joinder (of a party) in an appeal. That, there is nothing preventing this court in an appropriate case, from relying on Section 16 (Sic) of the Court of Appeal Act, 1976 (sic) to do so.
The application was said to have been brought pursuant to order 7 Rule 4 of the Court of Appeal Rules, 2007 on the following exceptional grounds or Circumstances:
“(i) The trial court had granted on order of stay of further proceedings in the 1st July’ 2009 and has thereby become functus officio.
(ii) The Applicant appealed against the orders of 1st July, 2009 within time on the 14th July, 2009.
(iii) The application for the interlocutory reliefs in paragraph 1 could not have been sought in the trial court. As for the order of injunction this can always be sought in directly in this court under order 4 Rules 6 of this court. See GBADAMOSI Vs. ATTORNEY-GENERAL OF LAGOS STATE (2001) 6 NWLR (PT.709) 437; NS ENG. CO. LTD. VS O. S. MILL (2001) 2 NWLR (PT.696) 130”
Thus, the court has been urged to accordingly grant the application as prayed.
As alluded to above, in response to the applicants’ submission, the 1st- 3rd Respondents’ learned senior counsel, Chief Wole Olanipakun, SAN, had filed a 99 page written address, dated 9th November, 2009, but filed on 10th November, 2009.
In contradistinction to the sole issue formulated by the Appellant in the written address thereof, the 1st – 3rd Respondents have deemed fit to raise a total of six issues for determination, to wit:
(i). Having regard to the clear provisions of order 7 Rule 4 of the Court of appeal Rules 2007, whether this application is competent.
(ii). Whether or not your Lordships can entertain and/or grant prayer 4 at all.
(iii). Can this Honourable Court grant prayer 1, couched and if the answer is -in the negative, can the court proceed to consider prayer 2?
(iv). Considering the reliefs sought in the statement of claim, whether your Lordships are in apposition to accede to the Applicants reliefs.
(v). Considering the state of affidavit evidence the Notice of Appeal containing “one ground” of Appeal and the paucity of materials supplied, whether or not this application is not bound to fail.
(vi). Considering the antecedents of this case, the -conduct of the Applicants, the Notice of Appeal dated 14th July, 2009 (Exhibit WK 3) and the con of the motion dated 15th July, 2009, whether this application should not be dismissed without much undo.”
Copiously citing the provisions of order 7 Rule 4 of the Court of Appeal Rules, 2007 (supra), the learned senior counsel conceded, without much ado, to the fact that in a situation where an appellate court is fully seized of an appeal i.e. where the appeal has been entered in the court, an Applicant can bring an application for an injunction directly to the court. However, according to the learned silk, this is not the position in the present case. The application, filed on 1st July, 2009, allegedly does not contain any ground. The supporting affidavit has not mentioned any circumstance why the Applicants decided to come to this court first. No reference to a similar application made to the lower court, and whether or not same was refused.
It was further submitted that the Applicants’ written address made no reference to any exigency warranting the bringing of the application to this court. That, he could not have (even) done so, since materials were not contained as grounds for bringing the application or in the supporting affidavit. See A.F.G. LTD VS. O.P. INTIL LTD (2007) 8 NWLR 1 (PT.1035) 85 at 93 – 94, a decision based on order 3 Rule 3 (4) of the Court of Appeal Rules, 2002, which are similar to order 7 Rule 4 Court of Appeal Rules, 2007. See also SOYANWO VS. AKINYEMI (2001) NWLR (PT. 714) 95 at 121; ATTORNEY-GENERAL OF THE FEDERATION VS. FAFUNWA ONIKOYI (2006) 18 NWLR (PT. 1010) 51 at 83.
It’s urged that the Rules of this court are sacrosanct and cannot be bent ab initio. No inherent jurisdiction can cure the defect in this application. See FIN VS. AGU (1992) 3 NWLR (PT. 229) 350.
The court has been urged to resolve issue No.1 – against the Applicants and dismiss or strike out the application for being incompetent.
On issue No 2, it was submitted, inter alia, that the question raised therein is very germane and fundamental, bearing in mind that the nature and status of the application before this court vis-a- vis the well established principle of law, that it is the plaintiff’s claim that vests jurisdiction in the court. See ADEYEMI VS. OPEYORI (1976) 9-10 Section 31. Reference was made to prayers 2, 3, and 4 of the application, as well as paragraphs 15 and 18 of the supporting affidavit attached thereto, regarding the Chief Registrar of the lower court sought to be joined as a party to the substantive appeal. It is thus argued, that an application for joinder cannot be made and/or in the same application for stay of execution and injunction.
An allusion was equally made to orders 7 Rule 4, and 9 Rules 5 and 16 of the Federal High Court Rules (supra), dealing with joinder or substitution of a party, and the case of FOLORUNSHO VS. SHALOUB (1994) 3 NWLR (PT. 333) 413 at 421 paragraphs C-D, respectively.
The Chief Registrar of the lower court has allegedly not sought leave to apply (to be joined as a party to the suit) under section, 241 of the 1999 Constitution. Thus prayers 1 and 2 of the application have been alleged to be premature until proper parties are before the court. See INCAR NIGERIA PLC VS. BODEX ENTERPRISES NIG. LTD. (1997) 10 NWLR (PT.226) 530; ODOFIN VS. AGU (supra); OBODO VS. ENAROFIA (1980) N.S.C.C.VOL 12, 195, respectively.
It is further postulated, that this court cannot make an order against the Chief Registrar, assuming it can join him as a Co-Respondent, as the prayer seeking to restrain him is in itself incompetent. The Applicants have allegedly prejudged the hearing of the ruling on the said application for joinder. For this proposition, the case of OGBOCHE VS. ONOCHIE (1988) 1 NWLR (PT.707), 370 at 372,was cited to the effect that a brief of argument based on proposed ground of argument was held to be very incompetent.
The court has been urged to accordingly resolve issue No.2 against the Applicants. Issue No.3 raises the question of whether this court can grant prayer No.1 as couched, if the answer is in the negative, whether the court can proceed to consider prayer No.2?
Prayer No.1 is said to be judgmental that if granted there is no need for the court to proceed with the appeal, which would have been determined in favour of the Applicants at an interlocutory state. And courts are enjoined not to prejudge a substantive case or appeal at the interlocutory stage. See AKAPO VS. HAKEEM HABEEB (2002) 6 NWLR (PT.77) 266 at 287. ODUTOLA HOLD (NIG.) LTD. VS. LADEJOB (2006) 12 NWLR (PT.994) 321. UNIVERSITY PRESS LTD. VS. HK – MANTINS (NIG.) LTD. (2000) 4 NWLR (PT. 654) 584 at 595.
It is not grantable, so to say, as no court can give such an order. See AKAPO VS HAKEEM-HABEEB (1992) 6 NWLR (PT. 247) 266 at 297. The Applicants do not even have the locus standi to ask for an injunction in favour thereof. See MOBIL PROD (NIG.) UNLIMITED VS. LASEPA (2002) 18 NWLR (PT. 798) 1 at 34-35 paragraphs E- B, 47 paragraphs C- F.
It is also submitted, that Mr. Olusegun Ajayi cannot even apply either for stay of execution or for any injunction regarding the lower court’s ruling, on the ground that non-party to an action cannot apply for stay or an injunction. If such an order is made against him, he can seek leave to appeal and get it discharged. L. LIANAGE VS. SAN (1998) 13 NWLR (PT. 582) 500; MOMAH VS. VAB PETROLEUM INC. (2000) 4 NWLR (PT. 654) 534.
On issue No IV, the Respondents’ learned senior counsel copiously alluded to the reliefs sought in the statement of claim, as well as exhibit WK3 (the Notice of Appeal), and accordingly postulated that the instant application is not premised or grounded on the substantive claim, and cannot thus be granted. See NGIGE VS. OBI (2006) 14 NWLR (PT. 999) at 106 -108 paragraphs D – A; OKOYA 14 VS. SANTILI (1991) 7 NWLR (Pt.206) 753 of 765; OJAH VS. OGBONI VS (1996) 6 NWLR (PT.454) 272 at 290 (P.13).
On the basic of that submission, this court has been urged not to accede to any of the reliefs sought by the Applicants.
On issue No V, it was submitted that it’s trite that for a motion to succeed, it must have sufficient evidential substratum by way of an affidavit evidence. See section 86, 87, 88 and 89 of the Evidence Act. Paragraphs 5 -14 and 17 of the affidavit, and paragraph 7 – 17, 19, 22, 25 and 26 of the further affidavit in support of the application were copiously referred to at pages 33 – 45 of the Respondents address. It was contended, that it would amount to an understatement to say that the said paragraphs were extraneous or contain legal pontifications and conclusions. They were said to be rather argumentative, conclusive and accusative. The case of BAMAIYI VS. STATE (2001) 8 NWLR (PT.715) 270 at 287 paragraphs D – F, was cited and equally relied upon by learned silk, as an authority regarding paragraphs of an affidavit that offend sections 86 and 87 of the Evidence Act.
It was further pontificated upon that: –
“Both legal and factual propositions have been advanced and conclusions favouring the Applicants reached. The entire affidavits are punctuated by conjectures and very extraneous matters, without counselor deponent revealing or stating the source of his information.”
See BANQUE DE L AFRIQUE OCODENTAL VS. ALHAJI BADA SHARFADI & ORS (1963) NMLR 21; HORN VS. RICKARD (1963) 2 ALL NLR 41 (1963) NWLR (and not NWLR as was cited) 67, NIGERIA LNG LTD VS. AFRICAN DEVELOPOMENT INSURANCE COMPANY LTD (1995) 8 NWLR (PT. 416) 677 at 699 -700. ORJI VS. ZARIA INDUSTRIES LTD (1992) 1 NWLR (PT.216) 124, respectively. It was finally argued on this fifth issue, that if the alleged offensive paragraphs of the affidavit in question were struck out, the remaining few paragraphs cannot sustain any application at all, as such the entire application has to be struck out. Reliance was placed on KEYAMO VS. LAGOS STATE HOUSE OF ASSEMBLY (2002) 18 NWLR (PT. 799) 605, for the above proposition.
On issue NO.VI, the court has been invited, so to say, to note that all the relevant paragraphs of the counter affidavit attesting to or re-echoing the facts adumbrated at pages 52 – 65 of the Respondents’ address, have not been denied or controverted by the Applicants. They are thus (deemed) taken as admitted. See BEDDINGS HOLDS NGS LTD VS. NEC (1992) 8 NWLR (PT.260) 428; OGOEJOFO VS. OGOE JOFO (2002) 12 NWLR (Pt.780) 171.
It is alleged that the Applicant filed more than six applications in an attempt to frustrate their own case. That, they have also filed the interlocutory appeals which are still pending before the court. On the other hand the Respondents have so far not filed a single application, but rather kept on reminding the Applicants, and indeed the court, of the binding and unequivocal nature of the order of this court in question. The very notorious case of KOTOYE VS. SARAKI (1992) 9 NWLR (PT.204) 156 at 188 was cited and equally relied upon regarding the definition of the term abuse of court process.
It was said that the ingredients that characterized an abuse of court process, as defined by the apex court in KOTOYE’S case (supra), vividly capture the antics of the Applicants both before this court and the lower court. The Applicants were alleged to have resorted to self help. That (it is trite) when a matter is submitted before a court of law, no party is expected to apply the rule of self help, including making press statements, on matters that are subjudice.
See SCOH VS. STANSTRELD (1868) LR 3 EX. 220; GOVERNOR OF LAGOS STATE VS. OJIKWU (1986) 1 NWLR (PT.18) 621 at 641. Per OPUTA, J.S.C. ABEKE VS. STATE (Z007) 9 NWLR (PT. 1040) 411 at 417 Per NIKI TOBI, J.S.C., respectively.
Reference was made to exhibits 17 A & Band 18 – This day Newspaper edition of 12th August, 2009, in which damaging allegations were made against the trial Judge even without allowing the (National Judicial Council) to consider their petitions. See also paragraphs 80 – 83 of the counter affidavit.
The Applicants were alleged to have been pursuing interlocutory appeals. No assurance was given for expeditious trial of their case. That, their hands are not only soiled, their conduct is equally reprehensible. As it is trite that he who comes to equity must come with clean hands, and that justice is meant for both parties, as well as for the public. See AWURE VS ILEDU (2008) 12 NWLR (PT.1098) 249; OILFIELD SUPPLY CENTRE LTD. VS. JOHNSON (1987) 2 NWLR (PT. 58) 625; AKPUNONU VS. BEKAERT OVERSEASLTD (1995) 5 NWLR (PT. 393) 42 at 72.
However the case of COMPLETE HOMES ENT. NIG. LTD VS. HENRY STEPHENSENG – COMPANY LTD. (1993) 9 NWLR (PT. 316) 208, cited and relied upon by the Applicants, is said to have nothing to do with the instant matter. That, the judgment of this court, dated 19th March, 2009 is self executory and the directions (orders) therein contained would work against the Applicants. See FANGBOLA VS TITILAYO PLASTIC IND LTD (2005) 2 NWLR (PT. 909) 1.
The provision of section 287 (2) of the 1999 Constitution is said to be rather clear on the power and jurisdiction of the lower court to enforce the said Judgment. See EBERE VS. UTARE (1992) 3 NWLR (PT.227) 15 at 21; UNIPRESS LTD. VS. AKINLUYI (1992) 8 NWLR (PT. 262) 737 at 751. It is contended, that the issue of enforcement of judgment is not being contested in the Notice of Appeal. Thus, the entire submissions in paragraphs 7.1 to 7.14 (of the Applicant’s address) become irrelevant. That, the order of the trial court made on 1st July, 2009 having already been executed before the application was filed, there is nothing left to be stayed. See OLA VS. WILLIAMS (2003) 5 NWLR (PT. 812) 48 at 62 paragraphs B – F; SODEINDE & ORS VS. THE REGENCY COUNCIL OF OLOTA OF OTA & ORS (1998) 6 NWLR (PT. 552).
It was argued, that not until the order is set aside by this court in the final judgment, no party can treat it as if it does not exist. See ROSSEK VS A.C.B. LTD (1993) 8 NWLR (PT. 312) 382 at 471. That, having regard to the only ground in Exhibit WK3 there is no reason of warranting the grant of this application, as the only ground cannot ground either a stay of execution or an injunction. See VASWANI BROTHERS VS SAVALAKH & ca. (1972) ALL NLR (PT. 2) 483.
Reference was made to Exhibits WK 1, the judgment of this court dated 19th March, 2009, Exhibit Wk 2, the enrolled order of the lower court, and Exhibit WK 3, the Notice of Appeal attached to the affidavit supporting the application. It was postulated, that the ruling of the lower court was not exhibited, as such the application would not be countenanced, and has to be dismissed without much ado. See DANTUBU VS. ADENE (1987) 4 NWLR (PT. 65) 374; SUIMONA VS ILESANMI (2001) 1 FWLR (PT. 54) 373 at 381; BAYERO VS AGUNDI (2005) ALL FWLR (PT. 290) 1480 at 1496; NNB PLC. VS IBN ENT. NIG. LTD (1998) 6 NWLR (PT.554) 446 at 454; FAGBENRO VS. OROGUN (1993) 3 NWLR (PT. 284) 662 at 670-671; BALOGUN VS BALOGUN (1969) IAII NLR 349; OLUSEGUN SOGE VS. LATIFU MUSA (1975) NWLR 133 at 135; OBATOYINBO VS. OSHATOBA (1996) 5 NWLR (PT.450) 521 at 548-549, respectively.
It was finally submitted, that stay of execution or an injunction pending an appeal is not granted as a matter of course, but rather based on special circumstances deductable from materials. See FATS VS. EGEGBU (1993) 6 NWLR (PT.297) 1 at 17 – 18. That, the competing rights of the parties have to be considered by the court, as the exercise of a discretion that is biased in favour of an Applicant without adequately taking into consideration a Respondents’ equal rights to justice, would not be exercised by the court. See OKAFOR VS. NNAIFE (1987) NWLR (PT.64) 129. The court has been urged to accordingly dismiss the application.
As alluded to above, the Applicants’ learned senior counsel had on 16th November 2009 filed a reply to the Respondents’ written address inquestion. In a nutshell, the submission of the learned silk is to the effect, inter alia, that the Respondents’ written address has not reacted to the grounds of the application copiously reproduced in the Applicants’ written address. It was contended that none of the six issues formulated in the Respondents’ written address corresponds to the Applicants’ grounds, (upon which the application is predicated). It was likewise, contended, that since the belated defence of consequential relief would fail, implying that the Respondents engaged in self help, and have not disputed the power of the court to restore the status quo, the court should grant the reliefs sought.
Regarding the alleged non-compliance by the Applicants with the Rules on affidavit, it’s submitted that the Respondents have equally overlooked paragraphs 17, 18, 24, 34, 46, 61, 70, 72, 79 and 80 of their own counter affidavit which are allegedly legal arguments, submissions and/or conclusions. With a view to doing substantial justice to the parties, this court has been urged upon to, in the circumstance, ignore technicality and accordingly apply Section 84 of the Evidence Act vis-a-vs the following authorities: EURO – BATI CONCEPT S-A- VS. I-I-C. LTD. (2001) 18 NWLR (PT.744) 105; ATAYE FARMS LTD VS. NACB LTD. (2003) 4 NWLR (PT.810) 427, respectively.
It is likewise contended, that the Respondents’ complaint that the Applicants have not complied with the provisions of order 7 Rule 4 of the Court of Appeal Rules 2007 is rather baseless on the simple ground that:
“The Applicants have explained away the special circumstance arising from the fact that the trial court had became functus officio at the time of the application on the 15th July, 2009 having granted a stay of further proceeding on the 1st July, 2009.”
See page 6 of the Applicants” reply to the Respondents” written address.
It may not be out of place for me to state, at this point in time, that I have accorded a very critical, albeit dispassionate, consideration upon the nature and circumstances surrounding the application, the various affidavits and counter affidavits (by whatever names so called), the numerous exhibits attached thereto, the extensive and far-reaching submissions of the learned senior counsel contained in their respective written addresses vis-a-vis the illuminative authorities referred to therein.
Having painstakingly contrasted the learned senior counsel’s respective written addresses, I would want to appreciate that there are two basic issues that are fundamentally germaine to the determination of the present application, to wit:
1. Whether or not this court has the jurisdictional competence to entertain the application.
2. Whether or not the application is meritorious, thus liable to be granted by the court.
Issue No.1:As alluded to above, issue No.1 raises the question of whether or not this court has the necessary jurisdictional competence to entertain the instant application. It’s not in doubt, that the issue of jurisdiction is not only of significant importance, but also very fundamental. This is absolutely so, because where a court lacks jurisdiction to entertain a matter, it is completely devoid of any vires or power to determine the issues there in on the merits. Thus, it’s a trite and fundamental principle of law, that if a court has no jurisdiction to entertain a matter or an action, it essentially lacks the power to determine or pronounce on the rights between the parties therein. See AKIN BOLA VS. PLISSON FISKO (NIG.) LTD. (1991) 1 NWLR (PT. 167) 270; GOMBE VS. PW (NIG.) LTD. (1995) 6 NWLR (PT. 402) 402; EFFIONG VS. EBONG (2006) 18 NWLR (PT. 1010) 109 at 130-1131 paragraphs H-A.
Instructively, there is a plethora of authorities on the ever recurring controversial issue of jurisdiction of courts. The most notorious of such authorities, indeed the locus classicus thereof, is that of MADUKOLU VS NKEMDILIM (1962)2 SC NLR 34, wherein the Nigerian Apex Court, the Supreme Court, authoritatively laid down far reaching principles, to the effect thatP:-
A court is competent when;
(a) it is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for our reason or another; and
(b) the subject matter of the case is within its jurisdiction; and
(c) the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal for the proceedings are a nullity however well concluded and decided; the defect is extrinsic to the adjudication.
Jurisdiction is unarguably the most radical and fundamental question of judicial competence. The reason being that:-
“If the court has no jurisdiction to hear the case, the proceedings are and remain a nullity ab initio however well conducted and brilliantly decided they might be, as a defect in-competence is, not intrinsic, but rather extrinsic, to the entire adjudication.”
Per NIKI TOBI JSC in INAKOJU VS. ADELEKE (2007) 4 NWLR (PT. 1025) 427 at 588 paragraphs E-F. See also ONYEANUCHEYA VS. THE MILITARY ADMINISTRATOR OF IMO STATE (1997) 1 NWLR (PT. 482) 429; MADUIKOLU VS. NKEMDILIM (supra) 341; BASOUN VS CLEMESSY INTERNATIONAL (1999) 72 NWLR (PT. 632) 516, respectively.
I think it was the Hon. Justice Mohammad Bello CJN (of blessed and most remarkable memory) who, in his cherishingly notorious philosophical and rather erudite characteristics, likened jurisdiction to blood that gives survival to an action in a court of law. According to the foremost erudite jurist:
“Without jurisdiction the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it, without infusing blood into it, would be an abortive exercise.”
See UTIH VS ONYIVWE (1991) 1 NWLR (PT. 166) 166 at 206 paragraphs. A-B, It is a well settled general principle of law, that in the determination of (the issue of) jurisdiction, the court process to be considered is the pleadings of the Plaintiff, which is the originating process i.e. the write of summons, the statement of claim, or originating summons (motion), as the case may be. The pleadings filed by the Defendant(statement of defence) should not ordinarily have to be looked into. That’s to say, it’s the case essentially put forward by the Plaintiff that determines whether or not the court has the jurisdiction to entertain the matter.
See NNONYE VS. ANYICHIE (2005) 8 WNR 1 at 22; (2005) 2 NWLR (PT. 910) 623; NDIC VS. CBN (2002) 18 WRN 1; (2002) 7 NWLR (PT.766) 272; ELABANJO VS. DAWODU (2006) 15 NWLR (PT.1001) 76; OKULATE VS. AWOSANYA (2000) 2 NWLR (PT. 646) 530 at 556; ADEYEMI VS. OPEYORI (1976) 9-10 SC 31 at 51;
TUKUR VS. GOV. OF GONGOLA STATE (1989) All NLR 579 at 599; (1989) 4 NWLR (PT. 117) 517; EGBUONU VS. BRTC (1997) 12 NWLR (PT.531) 29 at 43, respectively.
However, in some very exceptional cases, the court may resort to considering the circumstances surrounding the case as a whole, including, the need to take some evidence before determining the vexed issue of jurisdiction. See ATTORNEY-GENERAL OF ANAMBRA STATE Vs. THE ATTORNEY-GENERAL OF THE FEDERATION (1993) 6 NWLR (PT. 302) 692.
Having critically considered the nature and circumstances surrounding the motion as a whole, I have no doubt in my mind that by virtue of the combined provisions of section 241 (1) of the Constitution of the Federal Republic of Nigeria, 1999, section 15 of the Court of Appeal Act 2004, orders 4 Rule 6, and 7 Rule 4 of the Court of Appeal Rules 2007, this court, has the unfetted jurisdictional competence to entertain the present application. The said section 241 (1)of the 1999 constitution (supra) is to the effect that:-
“(i). An appeal shall lie from decisions of the Federal High Court or a State High Court to the Court of Appeal as of right, in the following cases:-
(f) decisions made by the Federal High Court or State High Court
(i) where the liberty of a person or the custody of an infant is Concerned.
(ii) where an injunction or the appointment of a receiver is granted or refused.”
By virtue of section 15 of the Court of Appeal Act, 2004, this court is imbued with an unfetted power to make any interim order, or grant any injunction, which the court below is authorised to make or grant. Likewise, the Court of Appeal Rules, 2007 (supra) have empowered the court to make orders by way of an injunction, and such other necessary orders, for the protection of the property (res) or person, pending the determination of the appeal before it. See also order 7 Rules 3 and 4, of the Court of Appeal Rules (supra) thus;
“3. Where an application has been refused by the Court below application for a similar purpose may be made to the court within fifteen days after the date of the refusal.
4. Wherever under these Rules an application may be made either to the court below or to the court it shall not be made in the first instance to the court except where there are special circumstances which made, it impossible or impracticable to apply to the court below.”
In view of the above unequivocal position of the law, it has become rather obvious that the answer to the first issue ought to be in the affirmative, and same is hereby resolved in favour of the Applicants.
ISSUE NO 2
Issue No. 2 raises the question of whether or not the application is meritorious, and ought to thus be granted by the court. The well settled cardinal principle of law is that, an interim or interlocutory order of injunction, as the one being sought by the Applicants, is an equitable remedy by the nature thereof. This court has been vested with an unfetted discretionary power, under the provisions of the 1999 Constitution (section 241 (1) ), the Court of Appeal Act, 2004 (section 15) and the Court of Appeal Rules, 2007 (Orders 4 Rule 6 and 7 Rule 4) to grant or refuse such an application. However, it’s rather trite that exercising of that discretionary power, must be seen to have been duly effectuated not only judicially, but also judiciously. See UNIVERSITYOF LAGOS VS. AIGORO (1985) 1.NWLR (PT.1) 143 at 149, NIGERIAN ARAB BANK LTD. VS. OGUERI (PT.159) 751 at 758 paragraphs D-E.
The law has definitely been well settled, that where a decision or order of a court of competent jurisdiction is not manifestly wrong or illegal, an appellate court (this court inclusive) has an onerous duty to presume that the decision or order appealed against is correct or rightly made, until the contrary is established. See IN RE DIAMOND BANK LTD. (2002). 17 NWLR (PT. 795L 120 at 134 paragraphs. G-H; DENTON-WEST VS. MUOMA SAN (2008) 6 NWLR (PT.1083) 418 at 437 paragraphs – G-H.
Instructively, the court has an onerous duty to guard against resorting to an un- wholesome, retrogressive, and rather abhorrent practice of denying a successful litigant the well deserved reaping of the fruits of his success, unless under very cogent and grave special circumstances. See the very notorious case of VASWANI TRADING COY. VS. SAVALAKH & COY. (1972) 12 SC 77 at 81 – 82, wherein the Supreme Court held, most authoritatively, that such special circumstances would involve the consideration of some collateral circumstances and in some cases, inherent matters, which may tend to destroy the subject matter of the case, and foist upon the court, a situation of complete helplessness, paralyse or frustrate, in one way or the other, the litigants’ exercise of his constitutional right of appeal. In the case of DENTON-WEST VS. MUOMA, SAN (supra) at page 450, paragraphs D – F, this court had aptly pontificated upon the fundamental principle guiding the grant or refusal of an application for stay of execution pending the determination of an appeal, thus:
“It’s axiomatic that by virtue of the provisions of the Court of Appeal Act, and the rules thereof, an appeal shall not ordinarily operate as a stay of execution. However this court does not give room to execution of judgment being carried out during the pendency of an appeal. Thus, any action of any of the parties taken while an application for a stay of execution, is pending in this court (as in the instant case) for the purpose of stultifying the exercise by the court of the jurisdictional powers thereof and to determine the application on the merits, must not be condoned by the Court. See VASWANI TRADING COY. VS. SAVALAKH & COY. (supra) at 2183 (sic) paragraphs 17 – 24.”
Per Saulawa, J.C.A.
As copiously reproduced herein above, the provisions of order 7 Rule 4 of the Court of Appeal Rules, 2007 are unequivocally clear regarding the obligation imposed upon the Applicants to show special circumstances which made it impracticable or impossible for them to apply to the court below.
By virtue of order 7 Rule 3 of the Court of Appeal Rules 2007, the Applicants were required to have first and foremost filed their application in the court below. In the event of the lower court refusing the application, then the Applicants would have had the liberty to file a similar application in this court in accordance with order 7 Rule 4 (supra).
Copiously alluding to order 7 Rule 4 (supra), the learned senior counsel to the 1st – 3rd Respondents submitted at page 9 of the address thereof that:-
“This is not the position in this case. Applicants’ application was filed on 15th July, 2009. It contains no ground for bringing the application. It is supposed to have been brought under order 7 Rule 4. 3.2. The supporting affidavit does not make mention of any circumstance (how much more of special circumstances) why Applicants have decided to come to this court first. There is no reference to any similar application made to this court first. There is no reference to any similar application made to the lower court, the date, the time, and/or whether it was refused and when it was so refused. It is when all these facts have been stated that order 7 Rule 3 will, come into play.”
I think, I cannot agree more with the above unassailable submission of the Respondents’ learned senior counsel. What’s rather baffling, is the Applicants’ blatant failure to assiduously address the issue of exigency that could have warranted the filing of the instant application in the first place. Undoubtedly, for the court to legitimately exercise the discretionary power thereof, both judicially and judiciously, the Applicants must have advanced, cogent and verifiable grounds for filing the application. See A.F.G. VS. O. P. INT – LTD (2007) 8 NWLR (PT.1035) 85 at 93 – 94; SOYANWO VS. AKINYEMI (2001) 8 NWLR (PT. 714) 95 at 121; A.G. FEDERATION VS. ONIKOYI (2006) 18 NWLR (PT.1010) 51 at 83.
As alluded above, the rule is now trite, that an application for stay of execution of judgment, (order or proceedings, as the case may be) pending an appeal ought to first be filed in the court below, and if refused a similar application could then be made to this court within 15 days time limit. See order 7 Rule 3 of the Court of Appeal Rules, 2007 (supra); AKUKALIA VS. GOVERNOR (1986) 5 NWLR (Pt.41) 275; OWO VS. ADETILOYE (1998) 10 NWLR (Pt.570) 488; SARAKI VS. KOTOYE (1992) 9 NWLR (Pt.264) 156.
Naturally, to every general rule, there is an exception. Thus, the exception to the conditions stipulated in order 7 Rule 3 of the Court of Appeal Rules (supra) could be found in Rule 4 of the same order 7, which provides thus:
“4. Wherever under these rules an application may be made either to the court below or to the court it shall not be made in the court (i.e. Court of Appeal) except where there are special circumstances, which make it impossible or impracticable to apply to the court below.”
Thus, by virtue of the provision of Rule 4 of Order 7 (supra), the Applicants have an obligation to place before this court all necessary and material facts to enable it consider the application, and grant the reliefs sought therein. This is especially so, in view of the obvious fact that the power of the court to either grant or refuse the application is discretionary in nature, which must be exercised not only judicially, but also judiciously. The court has an onerous duty to exercise the discretionary power thereof not in a vacuum, but in correlation to the facts of the particular case before it. See GENERAL OIL LTD VS. ODUNTAN (1990) 7 NWLR (Pt.163) 423; AKILU VS. FAWAHENMI (NO.2) (1989) 2 NWLR (Pt.102) 154, et al.
It is also a well founded principle, that for an application for stay of execution or proceedings, to be worthy of being granted, it must be predicated upon the following grounds:
1. One of such grounds is that there must have been a valid and pending appeal. However, see OLADAPO VS. ACB LTD (1950) 13 WACA 110; NBN LTD VS. NET LTD (1986) 3 NWLR (PT. 31) 667. where in was held that an application far stay could be granted, in exceptional circumstances, without any pending appeal.
2. The appeal, forming the very basis of the application for stay, must be competent and arguable on the merits, Thus, where an appeal is apparently frivolous, vexatious or an abuse of court process, the court has the power, and indeed a duty, to refuse the application. See AROTOYE VS. UBA LTD (1986) 2 NWLR (PT. 20) 101.
3. Where an interlocutory appeal raises an issue of jurisdiction of the court below, the Court of Appeal may grant an application for stay if on the face of the said appeal the decision will dispose of the proceedings in the lower court.
4. Where the res is established to be likely destroyed, damaged, or annihilated before the final determination of the substantive matter, the court shall grant a stay. See SHODEHINDE VS. REGISTERED TRUSTEES(1980) 1-2SC 163.
5. Where however, the appeal has been entered (i.e. where the records of proceedings of the lower court has been compiled and transmitted to the country Appeal), on application for stay should be made directly to the court. The reason being since the Court of Appeal has been seized of the proceedings, the trial court has become functus officio and can not therefore, entertain the application.
See BIOCON AGROCHEMICALS (NIG) LTD VS. KUDU HODINGS (PTY) LTD (1996) 35 LRCN 254. DANTUMBU VS. ADENE (1986) 2 NWLR (PT.22) 347 MOBIC OIL NIG. PLC VS. RABIU (2003) FWLR (PT.149) IS46; IZENU VS. NNAUWE (1977) 2 FCA. BALOGUN VS. BALOGUN (1969) 1 ALL NLR 349; DOMO VS. OGIRI (1998) 8 NWLR (PT. 561) 193; MOKANU & SONS LTD VS. FBN PLC (1998) 11 NWLR (PT.572) 116. NWABUEZE VS. NWAOSU (1988) 4 NWLR (PT. 88) 257; VASWANI TRADING CO. LTD VS. SAUALAKH (1972) 12 SC 77; MARTINS VS. NICANNER FOODS CO. LTD (1988) 2 NWLR (PT.74) 75; respectively.
By virtue of the averments deposed to in the Applicants’ supporting affidavits, especially paragraph 15 thereof, and on the face of the motion, most particularly prayer 4, the 4th Respondent i.e, the Chief Registrar of the Federal High Court, is not yet a party either before the lower court or this court. I agree in toto with the submission of the Respondents’ learned Senior counsel at pages 11-20 of the written address thereof (issue (ii), that, the Applicants’ prayers 3 & 4 seeking to restrain the Chief Registrar of the Federal High Court and (ii) joine him as a party to the appeal cannot simultaneously be granted by this court. Even by the sheer rule of common sense, there is no gain saying the fact, that the said Chief Registrar ought to, first and foremost, be joined as a party before any order can be made by this court against him.
Most undoubtedly, the position of the law is very clear on that point! It is indeed a well founded principle of law, that all persons, whose interests will be, or are likely to be affected, should be joined as parties to the action, as the court has no jurisdictional power to make any declaration, order etc in such persons’ absence, save in very exceptional circumstances. See LONDON PASSENGERS TRANSPORT, BOARD VS. MOSCROP (1942) AC 332; GREGORY VS. CAMDEN IBC (1966) 1 NWLR 899; IPADOLA VS. OSHOWOLE (1978) 3 NWLR 18; AG BENDEL STAT E VS. AG FEDERATION & ORS (1981) 10 SC 1; ADEGBENRO VS. AG FED. & ORS (1962) 7 All NLR 431; GOVT. SERVICEBOARD (1965) NWLR 310; PEENOK INVETSMENT LTD VS. HOTEI PRESIDENTIAL LTD (19821 12 SC 1; S4 – 55; 144 – 145; OKONKWO VS. OKAGBUE (1994) 12 SC NJ 89; IBENEWEKA & ORS VS. EGBUNA & ORS (1964) 1 WLR 219; OGUNSANYA VS. AUDU & ANR (1982) 3 NCLR 529; OBALA VS. ADESINA (1999) 2 SC NJI AT 18; TENDE VS. AG FEDERATION (1988) 1 NWLR 506, respectively. In the case of TENDE VS. AGF (supra) in particular, it was held by the privy council that:-
“Generally speaking, a court is not disposed to make (sic) a declaration of right about matters of law when it is apparent that the declaration asked for concerns other interested parties, who are not before the court.”
It would certainly tantamount to a travesty of justice if this court were to resort to granting an injunction against the Chief Registrar of the Federal High Court without, first and foremost, having him joined as a party interested in the outcome of the appeal. This is so because, the trite and fundamental principle is that a court of law has an onerous duty to guard itself against reckless and reprehensible granting of unenforceable Orders. See ABUBAKAR VS. (1973) 6 SC 31; AG ABIA STATE VS. AG FEDERATION (2006) 16 NWLR (PT 1005) 265 AT 421 paragraphs A-H.
As alluded to above, it’s not in doubt that this court has the unfetted discretionary power under section 6(6)(a) of the 1999 Constitution, as well as section 15 of the Court of Appeal Rules, 2007 to make an order to join a person as a party to an appeal, although he had not taken part in the proceedings in the suit at the lower court. That is to say, if such a person will be affected directly, legal or financially by any order made or likely to be by the court in the proceedings. See IN RE YINKA FOLAWIYO & SONS LTD (1991) 7 NWLR (PT. 202) 237 at 244 paras G – H where in this court held, inter alia, per Sulu-Gambari, JCA thus:
In holding that a person who is not a party ought to be added, the court must be able to find either that he ought to have been joined or that his presence before the court may be necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the cause or matter. It becomes pertinent to make a person a party to an action where it can be said that that person would be bound by the result of the action and that he would be or may be likely affected by the result of the decision of the court.”
However, in the instant case, it’s rather obvious that prayer No 4 must equally be refused on the ground that no effort has seemed to have been made by the Applicants to transmit the record of the appeal to this court for the appeal to be deemed as having been entered, Without the record of appeal being transmitted thereto, this court cannot rightly be considered to have been seized of the appeal. What’s more, prayer No 4 seeks to join the said Chief Registrar “to this suit.” In view of the fact that the lower court is still seized of the substantive “suit,” there is no gain saying the fact that the Applicants’ ought to have first applied to that court before coming to this court.
I have critically considered paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, & 17 of the affidavit in support of the motion, deposed to by one Waheed Kasali on 15th July, 2009, and paragraphs 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 19, 22, 25, & 265 of the further affidavit, deposed to on 8th September, 2009 respectively, All the above 25 paragraphs in question have been copiously reproduced at pages 33 – 45 of the 1st – 3rd Respondents’ written address. The paragraphs were alleged to be either extraneous matters or contain legal pontifications and conclusions, thereby offending the provisions of sections 86, 87 & 88 of the Evidence Act (supra). Thus, ought to be struck out. Contrariwise, the Applicants’ learned senior counsel, urged on the court to ignore the technicality and to apply section 84 of the Evidence Act, and the cases of EURO-BATI CONCEPTSA VS. I. I. C. LTD (2001) 18 NWLR (PT 744) 16; ATOYE FARMS LTD VS. N.A.C.B. LTD (2003) 4 NWLR (PT.810) 427.
It was further contended, by the Applicants’ learned senior counsel, that the Respondents have (equally) overlooked paragraphs, 17, 18, 24, 34, 46, 61, 70, 12, 79 and 80 of the counter affidavit thereof, which were allegedly offensive to sections 86, 87 & 88 of the Evidence Act.
Having critically appraised the 25 paragraphs, deposed to in the affidavit and further affidavit supporting the application in question, I am satisfied that the said paragraphs tantamount to legal arguments, conclusions, and are rather extraneous, thus contravene the provisions of sections 86, 87 and 88 of the Evidence Act.
The Applicants’ learned senior counsel’s allegation that paragraphs 17, 18, 24, 34, 46, 61, 70, 72, 79 & 80 of Respondent’s counter affidavits are equally offensive to sections 86, 87 & 88 of the Evidence Act is belated and a sheer afterthought. It is a trite and fundamental principle that he who alleges must prove. Thus, a complainant, must predicate the success of his complaint on the strength of the case thereof, and not on the weakness of the defendants’ case. See ANSAMBE VS. BON LTD (2005) 8 NWLR (PT. 928) 650 at 661-662 paras. H-A; ARABAMBI VS. ADVANCE BEVERAGES IND. LTD (2005) 19 NWLR (PT.959)1 at 28 paras. E-H; ADAMU SHEHU SULEIMAN VS. SALISU ZAKARI & 5 ORS. Appeal No.CA/J/EP/HR/322/07, judgment delivered on 24th November, 2009 (unreported) wherein this court (Jos Judicial Division) aptly held, inter alia, thus:
“The law is well settled, that the burden of proof does not ordinarily shift to a defendant until it has been proved by the plaintiff. And that a claimant must rely on the strength of his own case, and not on the supposed weakness of the defendant’s case.”
I have critically adverted my mind to the sole ground of appeal, dated 14th July, 2009 (Exhibit WK3), which is to the following effect.
“The learned trial Judge acted without jurisdiction in overruling/discharging on the 1st July, 2009 the various orders or substantially the orders made by the Court of Appeal in its judgment of 19th March, 2009 and thereby constituting himself an appellate court over the, Court of Appeal.”
I have equally appraised the particulars of error supporting the above sole ground of appeal. Unarguably, the above sole ground of appeal in question raises the fundamental issue of jurisdiction. Having realized that most of the other issues raised and argued ill the written addresses of the respective learned senior counsel are somehow relative to the issues raised in the substantive appeal, I have refrained myself from commenting on, or delving into, the live or material issues that are germaine to the determination of the substantive appeal itself. As for instance, a question was posed by the Appellants in the address thereof as to whether or not the lower court had the power (jurisdiction) to discharge the ex parte order appointing Mr. Olusegun Ajayi as Receiver/Manager of the Respondent which had already been executed. It was argued that the discharging of the said ex parte order was a “vain order or an order in vacuum.”
That question or issue, is most inarguably garmaine to the sole ground of appeal, which forms the fulcrum of the substantive appeal. Thus, the court has an imperative duty to restrain itself from determining that vexed issue at this interlocutory stage. Most instructively, it is a trite and well settled principle, that the court has a duty to exercise an extra-caution and thereby avoid making any comment or observation that may in effect determine the substantive or main issues in the appeal which are relative to the interlocutory application before it. See OMONKWA VS. AG BENDEL STATE (1983) 4 NWLR 237 AT 242; NIGERIAN ARAB BANK LTD VS. OGUNERI (1980) 6 NWLR (PT. 159) 751 AT 761 PARAS. G – H.
The allegation of abuse of court process levelled against the Respondents by the Applicants, is certainly not garmaine to, or founded upon, the sole ground of appeal in question.
Prayer No 1 of the motion raises the issue of discharging, interfering and/or overruling the existing orders of this court by the lower court. It must be reiterated, for the avoidance of doubt, that this court is not unmindful of the onerous duty thereof to, at all times, guard its jurisdiction not only jealously, but also very courageously. However, in doing so, the court must not lose sight of the golden rule that a court of law must not, under whatever circumstance, resort to making orders in vain. See EPEROKUN VS. UNILAG (1986) 4 NWLR (PT. 34)162; UKEJIANYA VS. UCHENDU (1950) 13 WACA 45; BADEJO VS. FED. MIN. OF EDUCATION (1996) 8 NWLR (PT, 464) 15; ANAEKWE VS. MASHASHA (2001) 12 NWLR (PT 726) 70 AT 90 PARAS. A-B ; AG ABIA STATE VS. AG FEDERATION (2006) 6 NWLR (PT1005) 205 AT 387 PARAS F-H.
In the most recent case of ALHAJI GARBA MOHAMMED GADI VS. NARRISTER BABAYO A. MALE & 8 ORS, appeal No CA/J/232M/09, ruling delivered on 10th December, 2009 (unreported), this court (Jos Judicial Division) had pontificated on the fundamental objective of interlocutory injunction thus:-
“It must be emphasized, at this point in time, that its a cardinal principle of law, that an interim or interlocutory injunction being an equitable remedy is discretionary. It is however, not merely granted for the asking, or as a matter of course. However, although, it’s trite that the court has an unfetted right in the exercise of judicial discretion, it must be seen to have been duly exercised not only judicially, but also judiciously. ” Per Saulawa, JCA.
See also UNIVERSITY OF LAGOS VS. AIGORO (1985) 1 NWLR (PT.1) 143 at 149; NIGERIAN ARAB BANK TO VS. OGUNNERI (1990) 6 NWLR (PT.159) 751 at 768 paras A – B, where in it was, inter alia, held thus:
“The fundamental objective, by whatever name so called, is to ensure that the orders of courts are not disobeyed, compromised or rendered nugatory. Where the court is absolutely certain that its orders will not be obeyed, it should wisely prevail itself against making any order of injunction.”
Thus, in view of the issue raised in the sole ground of appeal, it would not only be unreasonable, but also native for this court to determine the legality or otherwise of the lower courts’ order dated 1st July, 2009, at this interlocutory stage. The fulcrum of the entire appeal, as alluded to above, revolves around the validity or otherwise of the lower court’s order, in question. That issue, being garmaine to the substantive appeal, ought to be reserved for determination at the hearing of the substantive appeal.
Contrary to the highly misplaced Applicants’ agitation, it would amount to an improper use of judicial discretion for this court to grant prayers 1, 2 & 3 of the motion, which I believe are grossly incompetent and utterly unmeritorious, This is absolutely so, because as aptly held by this court:-
“The very essence of the proper exercise of judicial discretion is deeply rooted in the belief that it be exercised in accordance with well laid down rules of law, practice, reason, fairness and justice, and not in accordance with whimsical opinion, humour or sentimental disposition. Compliance with well laid down rules, reason and forensic logic are veritable handmaids for proper exercise of a judicial discretion for the sole purpose of attainment of justice to the parties.”
See ANPP & ORS VS. REC AKWA IBOM STATE & ORS (2008) 8 NWLR (PT.1090) 453 AT 512 – 513 paras G – C, per Saulawa, JCA. See also OYEYEMI VS. IREWOLE LOCAL GOVT. (1993) 7 NWLR (PT. 270) 462; SHAPRE VS.WAKEFIELD (1891) AC 173 HL, respectively.
Paradoxically, in the case of HINE VS. HINE (1962) 1 WLR 1124 AT 1127, Lord Denning, MR, that legendary and foremost common law jurist, had radically, albeit erroneously, advocated that the jurisdiction of the court over family assets was entirely discretionary, and that:-
“Its discretion transcends all rights legal or equitable, and enables the court to make such order as it thinks fit. This means, as I understand it, that the court is entitled to make such order as may be fair and just in all the circumstances of the case.”
However, the above radical view expressed by Lord Denning in HINE VS. HINE (supra) did not seem to have gone down well with the House of Lords. See the case of PETTITT VS. PETTITT (1970) AC 777 AT 808, wherein the House of Lords “scotched” so to say, the dictum profounded by Lord Denning MR in HINE VS. HINE (supra) thus:-
“To use the language of coke, this would be to substitute the uncertain and crooked cord of discretion for the golden and straight metwand of the law”. Per Lord Hudson.
See also the recent decision of this court (Jos Judicial Division) in NACB LTD VS. PETERACHAGWA, Appeal No. CA/J/68/2006, judgment delivered on 6th July, 2006 (unreported) at page 20.
In the light of all that I have postulated above, there is every cogent reason for me to hold that reliefs 1, 2, 3 & 4 of the motion are grossly incompetent and rather unmeritorious, thus they are each hereby refused by me. Consequently, the application is hereby struck out.
The Respondents are entitled to N10,000.00 as costs against the Applicants.
PAUL ADAMU GALINJE, J.C.A.: By a motion dated and filed on the 15th July 2009, the Appellants rein jointly sought for the following reliefs:-
1. AN ORDER staying and/or suspending the order/orders of the Federal High Court, Lagos made on the 1st July, 2009 in suit No.FHC/L/CS/1059/06 whereby the said Federal High Court without jurisdiction discharged interfered with and/or overruled the existing order/orders of this Court i.e. the Court of Appeal in Suit No. CA/L/783/07 made in its judgment on appeal to it on the 19th March, 2009 pending-the determination of the appeal.
2. AN ORDER of interlocutory injunction restraining anyone from acting as the Receiver/manager of the 1st Respondent except Mr. Olusegun Ajayi appointed by the Chief Registrar of the Federal High Court pursuant to and in the execution of the order/orders of this Court made in its judgment of 19th March, 2009 and further restraining the 2nd and 3rd Respondents from acting as Directors or of the 1st Respondent, thus confirming and/or affirming the orders of this Court in its Judgment of 19th March, 2009 in the said Suit No. CA/L/783/07 pending the determination of the appeal.
AN ORDER of interlocutory injunction restraining the Chief Registrar of the Federal High Court from complying with the Orders of the trial Court of 1st July, 2009 in so far as they affect him pending the determination of the appeal.
4. AN ORDER joining the Chief Registrar of the Federal High Court to the suit.
5. For such further or other order or orders which this Honourable Court may deem fit to make in the circumstances.
This motion is supported by a 19 paragraphs affidavit. Attached to the affidavit are sundry documents. The Respondents filed an 89 paragraphs counter affidavit, a further counter affidavit and a further and better counter affidavit on 19th October, 2009, 26th October, and 28th October, 2009 respectively.
On the 29th of October, 2009, parties were ordered to file written addresses which were adopted on the 11th January, 2010.
Chief Wole Olanipekun, learned senior counsel for the Respondents, in his initial argument on issue one, which is set out at pages 8 to 11, raised an objection to the competence of the application. The ground of his objection is that the Applicants have not complied with the provisions of Order 7 rule 3 and 4, of the Court of Appeal Rules 2007, and that being so the application is incompetent and ought to be struck out.
In reply to this objection, Professor S. A. Adesanya, learned senior counsel for the Applicants submitted that the objection is baseless because the Applicants have explained away the special circumstance arising from the fact that the trial Court had become functus officio at the time of the application on the 15th July, 2009 having granted a stay of further proceedings on the 1st July, 2009.
Order 7 rule 4 of the Court of Appeal Rules 2007 provides that where under these Rules an application may be made either to the Court below or to the Court, it shall not be made in the first instance to the Court except where there are special circumstances, which make it impossible or impracticable to apply to the Court below. The word “shall” is used to emphasize the point that an application will not be made in the first instance to this Court and it connotes mandate. The special circumstances that may permit an application to be made to this Court in the first instance can only be found from the facts averred in the affidavit evidence in support of such application. See Soyanwo v. Akinyemi (2001) 8 NWLR.(Pt. 714) 95 at 121.
Apart from this, the grounds of the application must set out the impossibility or impracticability to first apply at the lower Court. Where there are no sufficient materials to explain the failure to apply to the lower Court first, the application will be declared incompetent and same struck out. This is so because the rules of the Court are meant to obeyed as same are not for fun. In Yusufu v. Obasanjo (2003) 15 NWLR (Pt. 843) 293 at 303 paragraph F-G, my Lord Nsofor, JCA quoted with approval the decision of Sowemimo, JSC in Solanke v. Somefun (1974) 1 SC 141, (1974)-1 AI/ NLR 586 at 591 where his Lord said:-
“Rules of court are meant to be complied with and therefore any party or counsel seeking the discretionary power of the Judge to be exercised in his favour must bring his case within the provisions of the Rules on which he purported to make his application. If counsel fail to discharge their duties in that respect it is but fair and right that the Court should refuse to exercise it discretionary powers.”
There is nowhere in the supporting affidavit and the further affidavit that the Applicants have deposed to the fact that the lower court as at the time of the application was functus-officio by reason of the fact that it had stayed all the proceedings before it. If such a stay is quoted as the reason for failure to go in tile first instance to the lower Court, the ruling in which the order for stay of proceedings was made should have been annexed as Exhibit to any of the supporting affidavits, The Applicants’ failure to establish the existence of special circumstances is fatal to their application.
Prayer 4 in the motion paper is asking for an order to join the Chief Registrar of the High Court to the suit. What is pending is an appeal that is yet to be entered. The appeal is against an interlocutory ruling. The main suit is pending at the lower Court. The order which the Applicants seek is to join the Chief Registrar to the suit that is pending before the lower court. Not only that, the prayers for stay of the orders of the lower court and for injunctive orders as contained in prayer 1, 2 and 3 can only be validly made in the first instance to the lower court. They are incompetent and are hereby struck out.
Having struck out these prayers which were sought to be enforced against the Chief Registrar if he is joined in the suit, the prayer for joinder of the Chief Registrar is at large and holds no basis. The sole ground of appeal on the notice of appeal dated 14th July, 2009 complains that the learned trial Judge acted without jurisdiction in overruling/discharging on the 1st of July, 2009 the various orders or substantially the orders made by the Court of Appeal. This is a complaint against the action of the learned trial Judge. The ground does not impose any duty or responsibility on the Chief Registrar. A party can only be joined as a Respondent on appeal, if the final order in the judgment will affect him or his interest.
In Bisimillahi v. Yagba-East Local Government (2003) 4 NWLR (Pt. 810) 329 at 357 paragraphs A to 8, this Court, per Oduyemi, JCA held:-
“It is the law that the Court has jurisdiction to join a person whose presence is necessary for the prescribed purpose of effectually and completely adjudicating upon and settle all questions involved in the cause or matter before it and has no jurisdiction to join a person whose presence is not necessary for that purpose.”
See Uku v. Okumagba (1974) 1 All NLR(Pt. 1) 475; (1974) 1 NWLR 318.
Clearly whatever, order this Court will make in this appeal, taking into account the sole-ground of appeal, will have no bearing on the Chief Registrar of the Federal High Court. However if the Applicants are desirous of joining the Chief Registrar in the main suit that is pending at the lower Court, then the proper place to bring an application for joinder, is the lower Court. This Court cannot join him to a suit that is not before it. Definitely I have failed to see how a resolution of the sale ground of appeal in either way will affect the Chief Registrar of the Federal High Court and so I hold. Any order that is made for joinder will be anticipatory as then; is nothing before the Court that will require the joining of the Chief Registrar of the High Court.
Order 7 rule 3 of the Rules of this Court provides that where an application has been refused by the Court below, an application for similar purpose may be made to the Court within fifteen days after the date of the refusal. There is no evidence that the application herein was made in the first instance to the lower court. The appeal to this court is interlocutory and it is in the interest of justice and both parties to concentrate on getting the appeal heard, instead of indulging in endless applications. To that extent the application filed on the 15th July, 2009 in incompetent and liable to be struck out. Accordingly same shall be, and it is hereby struck out in its entirety. The Respondents are entitled to the cost of this application which I assess at N10,000.00 against the Applications.
REGINA OBIAGELI NWODO, J.C.A.: I had the privilege of reading in draft the Ruling of my learned brother SAULAWA JCA just delivered. I agree with the conclusion arrived thereat striking out the Motion.
I intend to emphasis on just few points. The rationale for joinder of a party is because it is necessary for the person to be a party to an action so that he should be bound by the result and the question to be settled is such that cannot be effectually and completely settled unless he is a party. See Garrena v. Akinlase (2008) 14 N.WL.R. (pt.1107) SC 262. In the instance application the Applicant averred in para. 14 and 15 & 18 of the affidavit in support as follows:-
“14. That the Chief Registrar of the Federal High Court has not carried out the orders in the Ruling of the trial court of 1st July, 2009 perhaps as a demonstration of his understanding of the hierarchy of the Courts and respect for this Court.
15. That it is necessary to join the Chief Registrar of the Federal High Court to this suit in order to ensure that he is bound by any order of this court.
18. That it is necessary to restrain the Chief Registrar of the Federal High Court from implementing the Orders of the Federal High Court of 1st July, 2009.”
The aforesaid paragraphs containing the reasons for the joinder is rooted on the party to be joined being bound by any order of the court. The application for joinder should precede Reliefs 1, 2 & 3 on the Motion paper. Nevertheless, all the reliefs sought in this application can only be considered and granted after the applicant has discharged the onus of establishing special circumstance why he should seek such reliefs in this court in the first instance instead of the Federal High Court. The Applicant failed to aver to facts in the affidavit establishing special circumstance to warrant an entertainment by this court of this application. The appeal is yet to be entered. The Notice of Appeal is an interlocutory appeal with one ground of Appeal complaining about the error on the part of the Learned trial Judge.
There is no evidence that similar application has been filed in the court below in accordance with the Rules before proceeding to this court. The Applicant having failed to establish by facts why this application is filed in this court in the first instance instead of the court below cannot invoke the Jurisdiction of the court. It is my firm view that the application is incompetent. See Mba v. Nwosu (2008) 3 NW.L.R. (pt.1074) CA 329.
Consequently, I hold the application filed on the 15 of July, 2009 is incompetent. The appropriate order to make when reliefs sought are not competent or premature is to strike out the entire application. The motion is struck out I abide by the consequential order made in the lead Ruling.
Appearances
Prof. A. Adesanya SAN, A. Oduntan (esq), W. Kasali (esq), K. YekiniFor Appellant
AND
Chief Wole Olanipekin SAN, O. Omoniyi (esq), Bode Olanipekun (Esq), K. Ifeolu (esq), Ayo Adesanmi (Esq), and Kunle Fapounda (Esq)For Respondent
