SOLID UNIT NIG. LTD & ANOR v. GEOTESS NIG. LTD
(2013)LCN/6166(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 7th day of May, 2013
CA/J/211/2010
RATIO
COURT: THE COURT HAS A DUTY TO PRONOUNCE ON EVERY ISSUE PLACED BEFORE IT
The law is well settled, and has oft been stated by the appellate courts, that it is the duty of every court to pronounce on every issue properly placed before it for consideration and determination before arriving at a decision. Where it has failed to do so, it leads to a miscarriage of justice, in addition to breaching the right of the Appellants to a fair hearing. See the decisions in Ovunwo V. Woko (2011) 5 SCNJ 124; Federal College of Education V. Pusmut (supra); Dawodu V. National Population Commission (2000) WRN 116 @ 118. This point, concerning a court’s bounden duty to pronounce on every issue raised before it, is fundamental to resolving the instant questions raised in this Appeal and is visibly sustainable in view of the decision of the Supreme Court in Brawal Shipping (Nig.) Ltd. V. Onwadike Co. Ltd (2000) 5 SCNJ 508, wherein Uwaifo, JSC, held as follows:
“It is no longer in doubt that this court demands of, and admonishes the lower courts to pronounce, as a general rule, on all issues properly placed before them for determination, in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal.”
See also Katto V. C.B.N. (1991) 9 NWLR (Pt. 214) 126; Okonji V. Njokanma (1991) 7 NWLR (pt. 202) 131; Atanda V. Ajani (1989) 3 NWLR (Pt. 111) 511; Olobue V. Nnabia (1972) 6 SC 27; Oyediran V. Anise (1970 1 ANLR 313 @ 317. A deliberate failure to do so has been characterized as amounting to a failure to perform a statutory duty.PER JUMMAI HANNATU SANKEY, J.C.A.
DOCUMENTS: HOW TO PROVE DOCUMENTS
The law is that documents may be proved by primary evidence except in the cases mentioned in the Evidence Act, 2011, particularly in Sections 89 and 90 thereof. Primary evidence means either that (i) the document itself is produced before the court, (ii) any one of the documents which was executed in several parts, (iii) its counterparts where each has been executed by one or some of the parties and copies produced via one uniform process such as printing, computer or other electronic or mechanical process, etc.PER JUMMAI HANNATU SANKEY, J.C.A.
SECONDARY EVIDENCE: WHAT DOES SECONDARY EVIDENCE INCLUDE
Whereas Secondary evidence includes (i) copies made from the original by mechanical or electronic processes which in themselves ensure the accuracy of the copy and copies compared with such copies; etc. See Sections 85-88 of the Evidence Act. By these provisions, it can be safely said that licences and certificates issued to individuals by public authorities may be proved by tendering the actual originals of these documents, being primary evidence. Where, however, the complication arises, (as in this case), is: where a party tenders a photocopy of such documents which, admittedly, were issued to him by a public authority. In that circumstance, can such a photocopy be said to be primary evidence of the document as required by the law as set out in Sections 85 and 88? Furthermore, (and this is the crux of this issue), are the licence and certificate of revalidation issued by the Ministry of Mining and Solid Minerals to the Respondent, (Exhibits 1 & 2), public documents for which certification is undeniably required, or private documents? The Evidence Act has made clear provisions to guide parties and the courts in this matter and for ease of reference, the contents of Sections 102 and 103 of the Evidence Act are set out hereunder:
“102. The following documents are public documents –
(a) Documents forming the official acts or records of the official acts of-
(i) The sovereign authority,
(ii) Official bodies and tribunals, or
(iii) Public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and
(b) Public records kept in Nigeria of private documents.
103. All documents other than public documents are private documents.”PER JUMMAI HANNATU SANKEY, J.C.A.
HOW TO PROVE THE CONTENTS OF A DOCUMENT
That being the case, the law is since settled that the contents of a document can be proved in a proceeding by tendering the original document, or where the original is unavailable, by a certified copy of the said original as secondary evidence of the contents of the said original. Section 104 (1) & (2) (formerly 111(i) of the Evidence Act provides thus:
(1) “Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.
(2) The certificate mentioned in subsection (1) of this section shall be dated and subscribed by such officer with his name and official title, and shall be sealed whenever such officer is authorised by law to make use of a seal, and such copies so certified shall be called certified Copies.”PER JUMMAI HANNATU SANKEY, J.C.A.
PUBLIC DOCUMENT: THE ACCEPTABLE SECONDARY EVIDENCE OF A PUBLIC DOCUMENT
It is clear from these provisions that the only acceptable secondary evidence of a public document is a certified copy of the document. These provisions have put the position precisely, concisely and beyond speculation or conjecture by the words “but no other kind of secondary evidence is admissible” in Section 90(1) (c) (formerly 97 (2) (c) of the Act. Niki Tobi, JSC, in Araka V. Egbue (2003) 7 SCNJ 114 stated the rationale behind this provision lucidly at page 126 of the Report as follows:
“One main objective behind Section 97 (2) (c) of the Evidence Act is to ensure the authenticity of the document tendered vis-a-vis the original. This is in addition to the need for the preservation of public documents. In this age of sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the con of Section 97 (2) (c) could be tutored and therefore not authentic. Photo tricks could be applied in the process of copying the original document with the result that the copy, which is secondary evidence, does not completely and totally reflect the original and therefore not a carbon copy of the original. The court has not the eyes of an eagle to detect such tricks.”PER JUMMAI HANNATU SANKEY, J.C.A.
PUBLIC DOCUMENTS: EFFECT OF NON CERTIFICATION OF PUBLIC DOCUMENTS
This non-certification of these public documents renders them inadmissible and same cannot be used by the court. See the decisions in Goodwill & Trust Investment Ltd V. Witt & Bush Ltd (2011) 3 SCNJ 241; Federal Airports Authority of Nigeria (FAAN) V. Wamal Express Services (2011) 1 SCNJ 133; Agagu V. Dawodu (1990) 9 NWLR (Pt. 160) 56.PER JUMMAI HANNATU SANKEY, J.C.A.
COURTS: A COURT OF LAW IS TO ADMIT AND ACT ONLY ON LEGAL EVIDENCE
A court of law is expected in all proceedings before it to admit and act only on legal evidence. Accordingly where a trial Court inadvertently admits evidence which is absolutely inadmissible, it has a duty generally not to act upon it but rather to discountenance it. So too, if a document is unlawfully received in evidence in the trial Court, an appellate court has inherent jurisdiction to exclude and discountenance the document. See the decision in I.B.W.A. V. Imano Ltd (2001) 3 SCNJ 160.PER JUMMAI HANNATU SANKEY, J.C.A.
INTERLOCUTORY INJUNCTION: PURPOSE
The main purpose of an interlocutory injunction is thus to protect a plaintiff against injury by a violation of his right for which he cannot be adequately compensated in damages recoverable in the action if the case were resolved in his favour, at the trial. See the case Dyktrade Ltd V. Omnia Nig Ltd (2000) 7 SCNJ 90. It is therefore fundamental and indispensable that the Respondent must establish such a right before an order of interlocutory injunction may be made in its favour.PER JUMMAI HANNATU SANKEY, J.C.A.
INTERLOCUTORY INJUNCTIONS ARE ONLY GRANTED IN CASES OF URGENCY
In addition to the absence of a legal right to protect, it is the law that interlocutory injunctions are only granted in cases of urgency. Thus, an applicant who is guilty of delay thereby demonstrates the absence of any urgency requiring prompt relief. See Udeozo V. Ochoma (2006) 2 SCNJ 278.PER JUMMAI HANNATU SANKEY, J.C.A.
IBRAHIM SHATA BDLIYA, J.C.A.: I have had the privilege of reading before now, the lead judgment just delivered by my learned brother, Jummai Hannatu Sankey, J.C.A. The issues which called for determination in the appeal have been adequately considered and resolved appropriately. I have nothing useful to add. I adopt it as mine, I, too, do hereby allow the appeal. The order of injunction made on the 30th of June, 2010 by the trial court sitting in Jos, is hereby set aside. I abide by the order as to costs contained therein.
PETER OLABISI IGE, J.C.A: I was privileged to have read in advance the Judgment just delivered by my Lord Sankey, J.C.A. I entirely agree with the reasoning and conclusion reached by My Lord, The appeal succeeds and it is allowed, I abide with all the orders made in the leading Judgment including the order that parties shall bear their own costs.
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): The Respondent in this Appeal had commenced an action before the trial Court against the Appellants via a Writ of Summons and Statement of Claim filed on the 14th May, 2010 seeking:
i. “A Declaration that the Defendants have no right whatsoever to enter into the land covered by Exploration Licence No. 1100EL at Kampani Zurak, Wase Local Government Area of Plateau State, and carry out any mining activity whatsoever same being vested in the plaintiff under the Nigerian Minerals and Mining Act, 2007.
ii. Order of perpetual Injunction, restraining the Defendants by themselves, Agents or Privies from further entering into the area covered by the Plaintiff’s Exploration Licence, No. 1100EL situate and located at Kampani Zurak, Wase Local Government Area of Plateau.
iii. The sum of N900, 000, 000,00 (Nine Hundred Million Naira Only) as damages with respect to the unlawfully mining and evacuation of minerals by the Defendants which has occurred from the mining area covered by the Plaintiff’s Exploration Licence, No 1100EL.
iv. The cost of this action.”
Simultaneously, it filed a motion on notice seeking an order of interlocutory injunction against the Appellants, the lower Court having already made interim orders of injunction pursuant to a motion exparte. Therein, Respondent sought the following reliefs:
1. “For interlocutory injunction restraining the Defendants either by themselves, their agents, privies or any other person whatsoever acting on their behalf from entering into the area covered by Exploration License No. 1100EL which is issued to the Plaintiff by the Ministry of Mines and Steel Development (at Kampani Zurak, Wase Local Government Area) and carrying out any mining or other related activity whatsoever and/or evacuating any mineral from the said EL area, pending the determination of the substantive suit now pending before this Honourable Court.
2. Order sealing the Warehouse of the Defendants situate at Dengi, behind Royal House stocked Lead and Zinc brought from the site Kampani Zurak, Wase Local Government Area pending the determination of this suit.”
Both the Respondent and the Appellants filed their affidavits and counter affidavit respectively as well as their written addresses, wherein their arguments thereto where marshaled and canvassed. Ruling on the application on the 30th June, 2010, the learned trial Judge, Bello, J., granted the application in part in these terms (at pages 169-170 of the Record):
“I have examined carefully the affidavits (sic) evidence of both the plaintiff and the defendant and the exhibits attached, and also considered the erudite submissions of both counsel as could be seen above. Again at the beginning of this ruling I have also considered the facts of this case as disclosed by the plaintiff’s pleadings. In the circumstances of this case, I am of the view that the plaintiff has shown the existence of a legal through his exhibit 1 and 2 that is worthy of protection by an injunction. Consequently, prayer one of the plaintiff/applicant is granted pending the determination of the substantive suit, prayer 2 is not granted because the plaintiff has shown in the affidavits in support of this application that it has kept counts (sic) of the minerals that the defendants carted away from its Exploration Area. That could be compensated by damages if proved.”
(Underlining supplied for emphasis)
Dissatisfied by this Ruling, the Appellants filed an Appeal against same via their Notice of Appeal filed on 16/07/2010 wherein they complained on seven (7) Grounds. The Grounds of Appeal bereft of their particulars, state as follows:-
“Ground one:
The learned trial Court erred in law and occasioned a miscarriage of justice when it held thus:
“In the circumstances of this case, I am of the view that the plaintiff has shown the existence of a legal right through his EXHIBIT 1 and 2 (sic) that is worthy of protection by an injunction. Consequently, prayer one of the Plaintiff/Applicant is granted pending the determination of the substantive suit”
Ground Two:
The learned trial court erred in law, and thus occasioned a miscarriage of justice, when without first resolving the issue of the admissibility of EXHIBITS 1 and 2 to the Respondent’s motion, it relied on the said EXHIBITS to grant the interlocutory injunction sought by it.
Ground Three:
The learned trial Judge erred in law and, thus occasioned a miscarriage of justice, when, without resolving the question of balance of convenience, it granted the Respondent the order of interlocutory injunction sought by it.
Ground Four:
The learned trial Court erred in law and thus occasioned a miscarriage of justice when it granted the Respondent the order of interlocutory injunction it sought, when the Respondent did not prove that if it were to succeed at the trial in establishing its right to a permanent injunction, it would not be adequately compensated in damages.
Ground Five:
The learned trial Court erred in law and thus occasioned a miscarriage of justice, when, without resolving the issue of delay on the part of Respondent in bringing its application for injunction, it granted the Respondent the order of injunction sought.
Ground Six:
The learned trial Court erred in law and thus occasioned a miscarriage of justice when without following the led (sic) down principles for the grant or refusal of interlocutory injunctions, it granted the injunction sought by the Respondent who did not make out a case for the grant of same.
Ground Seven:
The learned trial Court erred in law and occasioned a miscarriage of justice, when it granted (sic) interlocutory injunction against the Appellants who were not proper parties before it, without resolving the question of the propriety or otherwise of their being parties in the matter.
The Appellants thus prayed the Court to allow the Appeal on these grounds, set aside the order of injunction made by the trial Court, and in its place, enter an order dismissing the Respondent’s motion for want of merit.
The Respondent filed a Notice of preliminary objection to the hearing of the Appeal on the 26th August, 2010, the grounds of which are stated thus:
1. The Appeal is incompetent for the reason that no leave was obtained to file same in consonance with the provisions of Section 241 of the Constitution of the Federal Republic of Nigeria, 1999 and Section 15 of the Court of Appeal Act, the Appeal being an interlocutory Appeal.
2. Grounds 1, 2, 3, 4, 5, 6 and 7 of the Appeal are all of law and facts for which leave is required as an interlocutory Appeal, and for the Appeal to be struck out for the reason of the incompetence.
Parties filed their Briefs of argument setting out their arguments in the Appeal. The Appellant’s Brief was filed on the 27-07-10, while the Respondent’s Brief was filed on 26-08-10. Thereafter, the Appellants’ Reply Brief was filed on 07-09-10. On the 6th February, 2013, when the Appeal was called up for hearing, Mr. Komak, learned Counsel for the Respondent, referred the Court to the Notice of preliminary objection and adopted his arguments as set out at pages 3 – 5 of the Respondent’s Brief of argument as his arguments on the objection. He urged the Court to strike out all the Grounds of Appeal for being incompetent, Mr. Ugwuala, learned Counsel for the Appellants, referred to pages 1-3 of his Reply Brief for his arguments on the preliminary objection raised to the hearing of the Appeal. He adopted these arguments in response to the objection and prayed the Court to dismiss same.
In respect of the main Appeal, Mr. Ugwuala adopted and relied on the Appellants’ Brief, as well as the arguments contained at pages 3-5 of the Reply Brief, as his arguments in this Appeal. He urged the Court to allow the Appeal and set aside the Ruling of the Federal High Court. In like vein, Mr. Komak adopted and relied on his arguments as set out at pages 5-18 of the Respondent’s Brief as his arguments in this Appeal. He urged the Court to dismiss the Appeal.
In arguing the preliminary objection to the hearing of the Appeal at pages 3-5 of his Respondent’s Brief of argument, the Respondent contends that the Appellants failed to seek leave to leave to file this interlocutory Appeal. He argues that the Grounds of Appeal relate to mixed facts and law. Specifically, Grounds one and two are attacks against Exhibits 1 and 2 which are in the nature of facts, as well as the collateral facts thereto. Indeed, he contends that all the Seven (7) Grounds are all tied to facts. He relies on Shell Petroleum Dev. Co. of Nigeria Ltd. v Katad Nig. Ltd (2006) 1 NWLR (Pt. 9960) 198; B.A.S.F. Nig. Ltd V Faith Enterprise Ltd (2010) 41 NSQR 381, amongst other authorities, to urge the Court to strike out all the Grounds of Appeal as well as the Appeal itself, for being incompetent.
The Appellants’ response to the objection, as aforesaid is at pages 1-3 of their Reply Brief. They refer to Section 241 (1) (f) (ii) of the 1999 Constitution to submit that the Appellants’ Appeal, being an Appeal against the grant of an injunction by the lower Court, does not need the leave of either the lower Court or of this Court to be competent. The Appellants argue that an Appeal shall lie from the decision of the High Court as of right in any decision where an injunction is granted or refused. Thus, no leave is required to file such an Appeal. He relies on Attamah & 4 others V. The Anglican Bishop of the Niger & 3 others (1999) 12 NWLR (Pt. 533) 6.
Having reviewed all the arguments of both learned Counsel I am of the view that the objection is totally misconceived. Section 241 (1) (f) (ii) of the Constitution expressly provides thus:
“241. (1) An Appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a)…
(b)…
(c)…
(d)…
(e)…
(f) decisions made or given by the Federal High Court or a High Court –
(i)…
(ii) where an injunction or the appointment of a receiver is granted or refused,”
(Underlining supplied for emphasis)
This Constitutional provision speaks for itself and requires no further elucidation. It thus lays to rest both the first and second Grounds of objection. No leave is required where the Appeal is against the grant or the refusal of an order of injunction. I am not unmindful of the fact that the Respondent, in its Notice of Preliminary Objection also relied on Section 15 of the Court of Appeal Act. It is self-evident that Section 15 of the Act, 2004 is inappropriate to this circumstance, and that the Respondent may have intended to refer to Section 14 thereof, which is more relatable to the issue raised in the objection. Indeed, section 14 of the Act provides:
“14. Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that court or of the Court of Appeal, lie to the Court of Appeal;…”
However, it is settled law that the Constitution being the grundnorm of all laws in this Country; it is the plumb line by which all laws must be measured. The Apex Court has itself given weight to the provision of the Constitution in this regard in the case of Attamah & 4 others V. The Anglican Bishop of the Niger & 3 others (supra). Therein, Kutigi, JSC, (as he then was), delivered the lead Judgment in an Appeal on similar facts from the decision of the Court of Appeal which had dismissed an Appeal from the decision of the High Court refusing to discharge its interim order of injunction. Relying on Section 220 (1) (g) (ii) of the 1979 Constitution, which is in pari materia with Section 241, (1) (f) (ii) of the 1999 Constitution, the learned Jurist held that an appeal shall lie as of right where an injunction is granted or refused.
In regard to the second ground of objection which complains that the grounds of Appeal are grounds of facts and mixed facts and law, there is no further need to consider same having found (as above) that the Appeal is covered by Section 241 (1) (g) (ii) of the Constitution, making the appeal as of right. While agreeing that the decisions in Shell Petroleum Dev. Co. of Nigeria Ltd V. Katad Nig, Ltd (2006) 1 NWLR (Pt. 9950) 198; B.A.S.F. Nig. Ltd V. Faith Enterprise Ltd (2010) 41 NSQR 381, (amongst other authorities cited by the Respondent), enunciate good and sound principles of law, they are inapplicable to the facts in this Appeal as they can be distinguished, not being Appeals from the grant/refusal of injunctions. I therefore find the objection bereft of merit. It is hereby overruled and dismissed.
From the seven (7) Grounds of Appeal, the Appellants distilled three (3) issues for determination by this Court, while the Respondent also formulated three (3) issues. Some of the issues are similar in content. However, since the Appellants’ issues succinctly and precisely address and cover all the areas raised in the Grounds, they are adopted for consideration in the resolution of this Appeal. They are thus paraphrased hereunder:
1. Whether the learned trial Court was right when, without first resolving the issue of the admissibility of the Respondent’s Exhibits 1 & 2 in the interlocutory proceedings, it relied on the said Exhibits to find and hold that the Respondent had shown the existence of a legal right worthy of protection by an injunction,
2. Whether the learned trial Court followed laid down principles for the grant or refusal of an order of interlocutory injunction when, without resolving the issues of adequacy of damages, balance of convenience and delay in bringing the application for injunction, it went ahead to grant the injunction sought.
3. Whether the learned trial Court was right when, without resolving the issue of proper parties raised before it, it made the order of injunction sought against the Appellants who were merely agents of a disclosed principal.
Before going into the merits or otherwise of the Appeal itself, I am of the view that it is prudent to first look into the issue raised by the learned Counsel for the Appellants in his Reply Brief on issue (2) as formulated by the Respondent and the arguments following. This is because its outcome, one way or the other, will determine whether or not the Court can consider the arguments under that issue in response to the Appeal. In his Reply Brief on point of law, Mr. Ugwuala submits that issue (2) formulated by the Respondent does not arise from the Appellants’ Grounds 2, 3 and 6 or any of the Appellants’ Grounds of Appeal. He also submits that, contrary to the issue and arguments therein, none of the Appellants’ Grounds of Appeal raises the issue of whether or not, other than Exhibits 1 & 2, there were other materials/Exhibits that established the Respondent’s interest and right to warrant and sustain the grant of injunction. In addition, Counsel contends that issue (2) and the arguments thereon are an attempt to sustain the grant of the injunction on grounds other than those relied upon by the lower Court, when the Respondent neither appealed nor filed a Respondent’s Notice as required by Order 9 Rule 2 of the Court of Appeal Rules, 2007. He contends that by Rule 3 thereof, the Respondent is prohibited from doing this without prior leave of Court. Counsel therefore submits that, not having not appealed nor complied with these Rules of court, the Respondent’s issue (2) and all the arguments thereon are predicated on a non-issue. Reliance is placed on Odibendi V. Ilodibe (2009) 3 NWLR (Pt. 1128) 269 @ 279. Learned Counsel thus urged the Court to discountenance the Respondent’s issue (2), all the arguments thereon and strike out same. Further reliance is placed on West African Cotton Ltd V. Yankara (2008) 4 NWLR (Pt. 1077) 323 @ 335; & Dada V. Dosunmu (2005) 18 NWLR (Pt. 1010) 134 @ 156 per Onnoghen, JSC. Mr. Ugwuala thus urged the Court to strike out the Respondent’s issue (2) and all the arguments thereon. It is noteworthy that the Respondent did not respond to these submissions, (made on point of law), either orally in Court or in writing.
The issue (2) under reference as set out on page 5 of the Respondent’s Brief of argument state as follows:
“2. Whether, other than Exhibits 1 and 2, there were other materials/exhibits that established the Respondent’s interest and right to warrant and sustain the existence of the court’s discretion to grant the interlocutory injunction.
I have already, (earlier on in the body of this Judgment), set out the Grounds of Appeal filed by the Appellants. Indeed, a painstaking and thorough examination of all the seven (7) Grounds reveals that there is indeed no Ground which deals with the Respondent’s issue (2) purportedly distilled from the said Grounds in its Brief. The issue is not covered by the Grounds at all. Having said that, our recourse must therefore necessarily be to the Rules guiding procedure in this Court to see in what circumstances, if any, a Respondent is allowed to raise issues outside an appellant’s grounds of appeal, and whether the Respondent complied with the rules.
Order 9 Rules 2 & 3 referred to by learned Counsel for the Appellants state as follows:
“2. A Respondent who desires to contend on Appeal that the decision of the court below should be affirmed on grounds, other than those relied upon by that court, must give notice to that effect specifying the grounds of that contention.
3. Except with the leave of the Court, a Respondent shall not be entitled on the hearing of the appeal to contend that the decision of the Court below should be varied upon grounds not specified in a notice given under this Rule, to apply for any relief not so specified or to support the decision of the court below upon any grounds not relied upon by that court or specified in such a notice.
Order 18 Rule 7 of the Court of Appeal Rules also states thus:
“7. A Respondent may, without leave, include arguments in respect of a cross-appeal or a Respondent’s notice in his brief for the original appeal and the cross-appeal or Respondent’s notice.”
The grounds relied upon by the court below in granting the order of injunction are very brief and succinct as contained in its Ruling at pages 158-170 of the printed Record of Appeal. I have already set out the relevant portion of the Ruling complained upon by the Appellants in their Notice of Appeal. It is also the ratio decidendi of the entire decision of the lower Court. However, for ease of reference, the lower Court found thus at page 169 of the Record:
“I have examined carefully the affidavits (sic) evidence of both the plaintiff and the defendant and the exhibits attached, and also considered the erudite submissions of both counsel as could be seen above. Again at the beginning of this ruling I have also considered the facts of this case as disclosed by the plaintiff’s pleadings. In the circumstances of this case, I am of the view that the plaintiff has shown the existence of a legal right through his exhibit 1 and 2 that is worthy of protection by an injunction. Consequently, prayer one of the plaintiff/applicant is granted pending the determination of the substantive suit. Prayer 2 is not granted because the plaintiff has shown in the affidavits in support of this application that it has kept counts (sic) of the minerals that the defendants carted away from its Exploration Area. That could be compensated by damages if proved.”
From the above, the trial Judge was very specific in her finding. What is also crystal clear is that the learned trial Judge based her decision to grant the order of injunction solely on the ground that the Respondent had disclosed the existence of a legal right worthy of protection based exclusively on its Exhibits 1 & 2. It is against this finding that the Appellants thus found Grounds one & two in their Notice of Appeal.
In the instant Appeal, it is beyond dispute that the Respondent did not file a cross-appeal. It is also incontestable that he did not file a Respondent’s Notice to contend that the decision of the court below be affirmed on reasons other than those relied upon by the said court. What this therefore means is that any reference, by the Respondent in its Brief of argument, to any other materials or exhibits that the lower Court should have, (in addition to Exhibits 1 & 2), relied upon to grant the injunction sought, is extraneous to this Appeal and cannot be raised by the Respondent, except in the circumstances as allowed by the Rules of this Court. Since however it is beyond disputation that the Respondent neither filed a cross-appeal nor a Respondent’s Notice to contend, (as required in Order 9 Rules 2 & 3 of the Rules of Court), the door is shut against it to now sneak in this issue through the back door, as it were, in its Brief of argument. I therefore, without further ado, uphold the arguments of Counsel for the Appellants in this respect. I hereby strike out issue 2 formulated by the Respondent in its Brief and discountenance all the arguments canvassed thereon.
In arguing issue one, Mr. Ugwuala, learned Counsel for the Appellants, argues that, in opposing the motion for the grant of the interlocutory injunction, the Appellants had challenged the admissibility of the Respondent’s Exhibits 1 & 2 on the ground that they are photocopies of public documents and ought to have been certified as true copies before the lower Court could look at them. The Respondent disagreed and argued that they were private documents. Counsel contends that the lower Court having reviewed the arguments of both Counsels, failed to resolve this issue, and instead, went ahead to rely on them in arriving at its decision to grant the order of injunction sought. Counsel relies on the decision in Federal College of Education, Pankshin V. Pusmut (2008) 12 NWLR (Pt. 1101) 405 to submit that the lower Court had a duty to consider and decide on the submission of Counsel one way or the other before relying on the said Exhibits to make its findings. This was also imperative in the event of an Appeal, in order for this Court to have the benefit of its opinion on the issue of the admissibility of the documents.
Learned Counsel further submits that the Exhibits 1 & 2, purporting to be an Exploration Licence and its revalidation certificate, are inadmissible in the proceedings being un-certified copies of public documents. Reliance is placed on Sections 97 (2) and 109 (a) of the Evidence Act. Counsel submits that Exhibits 1 & 2, being an Exploration Licence and its revalidation certificate, are issued by the Mining Cadastre Office, (a body corporate established under Section 5 (1) & (2) of the Nigerian Minerals & Mining Act, 2007), pursuant to its powers under Section 59 (1) of the Nigerian Minerals & Mining Act. Counsel referred to the case of Bisichi Tin Co. Ltd V Commissioner of Police (1963) NRNLR 71. Counsel submits that Exhibits 1 & 2 were inadmissible in law and could not be received in evidence in proof of any claim of right because the Court can only act on admissible evidence in all proceedings, whether interlocutory or substantial. He relied on a number of authorities, amongst which are: Araka v. Egbue (2003) 17 NWLR (Pt. 848) 1; Alade V. Olukade (1975) 2 SC 183; Abuul V. Benue State University (2003) 15 NWLR (Pt. 845) 59; Ajibiye V. Duro (2010) ALL FWLR (Pt. 507) 136; Fawehinmi V. I.G.P (2000) 7 NWLR (Pt. 665) 481; Alamieyeseigha V. Federal Republic of Nigeria (2005) 15 NWLR (Pt. 1004) 1; Babatunde V. Pan Atlantic Shipping & Transport Agencies Ltd (2007) 113.
Learned Counsel finally submits that the learned trial Court wrongly exercised its discretion to grant the injunction sought by using, acting and relying on legally inadmissible exhibits in coming to its decision that the Respondent had a legal interest worthy of protection by an injunction. Thus, he submits, the finding of the learned trial Judge was not supported by evidence. He urged the Court to set aside the finding of the learned trial Court made on the strength of the Exhibits 1 & 2.
Mr. Amechi, learned Counsel for the Respondent, in response to these arguments submits that, having regards to the provisions of the Nigerian Minerals & Mining Act, 2007, particularly Section 59 thereto and the general provisions of the law, the licence granted and issued to the Respondent was its private document. He refers to Section 48 which defines the Respondent as a person who is qualified to be granted and issued a licence as per Section 59. Relying on the definitions of ‘Licence’ and ‘Certificate’ as defined in The New Lexicon Webster’s Dictionary of English language, Deluxe Encyclopaedia Edition, 1990 in relation to Section 59, Counsel contends that the licence issued to the Respondent as in the Exhibit 1, is a personal and private document of the Respondent. Likewise Exhibit 2, the certificate of revalidation, Counsel contends, is also a private document. Counsel argues that, even though these documents emanate from a public authority, once issued, they became the private documents of the Respondent. Since they also emanated from the custody of the Respondent, they needed no certification. He therefore submits that photocopies of private documents can be used in affidavits and were appropriately exhibited to establish their existence. For the proposition that not all documents emanating from public bodies/establishments are public documents, Counsel relies on Abuul V. Benue State University (supra) @ 76; & Shylon V. University of Ibadan (2007) 1 NWLR (Pt. 1014) 1.
Learned counsel further submits that, independent of Exhibits 1 & 2, Exhibits 3, 4, 5 and 6 establish the interest of the Respondent in the area covered by 1100EL. Exhibits 3 & 4 are receipts of payment for service fees in respect of 1100EL and renewal, and these are buttressed by paragraphs 8 & 9 of the affidavit of Uche Ezealor. Counsel submits that within the con of these Exhibits the lower Court was right to reach the conclusion of the Applicants’ right and interest in 1100EL, the Licence. Exhibit 5 is a letter from the Ministry of Mines & Steel Development to the Respondent which confirmed that the Respondent’s Licence 11000E is valid and extant. In answer to the rhetorical question posed by it whether, having considered these materials placed by the Respondent, and having regard to the Minerals & Mining Act, 2007, it was appropriate for the lower court to have made the order to protect the deposits and interest of the Respondent, Counsel relies on Sections 6 (i) (e) (g) & 61 (4) to submit that, once the lower Court convinced itself of the existence of the Exploration Licence 1100EL in favour of the Respondent, it had a duty to grant the order of interlocutory injunction to protect the mineral deposits and interest of the Respondent.
Before resolving this issue, it is pertinent to point out here that I have, earlier on in this Judgment, discountenanced any arguments relating to other materials/exhibits before the Court below, which could have established the Respondent’s legal right but which were not relied upon by the trial Court in arriving at its decision. Thus, even though some of these arguments also surfaced in the Respondent’s arguments under his issue (1), they stand discountenanced. I do so hold.
On the first part of this issue, the facts speak for themselves. It is evident from pages 84 – 85 of the printed Record of Appeal that the Appellants challenged the admissibility of the Exhibits 1 & 2 annexed to the Respondent’s affidavit in support of its motion, (amongst other exhibits), on the ground that they are photocopies of public documents that ought to have been certified as true copies before the lower Court could use them. In its response, (contained at page 94 of the Record), the Respondent contended that they were its private documents received from a public institution and so, did not qualify as public documents. It is observed that whereas the learned trial Judge reviewed these submissions at pages 165 – 166 of the printed Record, it failed to resolve the issue raised one way or the other before proceeding to make its findings thereon at page 169 of the Record.
The law is well settled, and has oft been stated by the appellate courts, that it is the duty of every court to pronounce on every issue properly placed before it for consideration and determination before arriving at a decision. Where it has failed to do so, it leads to a miscarriage of justice, in addition to breaching the right of the Appellants to a fair hearing. See the decisions in Ovunwo V. Woko (2011) 5 SCNJ 124; Federal College of Education V. Pusmut (supra); Dawodu V. National Population Commission (2000) WRN 116 @ 118. This point, concerning a court’s bounden duty to pronounce on every issue raised before it, is fundamental to resolving the instant questions raised in this Appeal and is visibly sustainable in view of the decision of the Supreme Court in Brawal Shipping (Nig.) Ltd. V. Onwadike Co. Ltd (2000) 5 SCNJ 508, wherein Uwaifo, JSC, held as follows:
“It is no longer in doubt that this court demands of, and admonishes the lower courts to pronounce, as a general rule, on all issues properly placed before them for determination, in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal.”
See also Katto V. C.B.N. (1991) 9 NWLR (Pt. 214) 126; Okonji V. Njokanma (1991) 7 NWLR (pt. 202) 131; Atanda V. Ajani (1989) 3 NWLR (Pt. 111) 511; Olobue V. Nnabia (1972) 6 SC 27; Oyediran V. Anise (1970 1 ANLR 313 @ 317. A deliberate failure to do so has been characterized as amounting to a failure to perform a statutory duty.
Since the printed Record of Appeal bears out the complaint of the Appellants that the lower Court failed in its duty to pronounce on the issue raised of the admissibility or otherwise of the Exhibits 1 & 2 before it, I do hereby find that, in failing to address the issue raised by the Appellants on the admissibility of the said documents before it made its findings, the lower Court failed in its duty, and this has thereby occasioned a miscarriage of justice. This failure on the part of the court below has, in addition, deprived this Court of the benefit of its opinion on the issue of the admissibility of the documents. The second aspect of this issue is, whether the lower Court was therefore wrong when it used the Exhibits 1 & 2 to grant the order of injunction sought. The law is that documents may be proved by primary evidence except in the cases mentioned in the Evidence Act, 2011, particularly in Sections 89 and 90 thereof. Primary evidence means either that (i) the document itself is produced before the court, (ii) any one of the documents which was executed in several parts, (iii) its counterparts where each has been executed by one or some of the parties and copies produced via one uniform process such as printing, computer or other electronic or mechanical process, etc.
Whereas Secondary evidence includes (i) copies made from the original by mechanical or electronic processes which in themselves ensure the accuracy of the copy and copies compared with such copies; etc. See Sections 85-88 of the Evidence Act. By these provisions, it can be safely said that licences and certificates issued to individuals by public authorities may be proved by tendering the actual originals of these documents, being primary evidence. Where, however, the complication arises, (as in this case), is: where a party tenders a photocopy of such documents which, admittedly, were issued to him by a public authority. In that circumstance, can such a photocopy be said to be primary evidence of the document as required by the law as set out in Sections 85 and 88? Furthermore, (and this is the crux of this issue), are the licence and certificate of revalidation issued by the Ministry of Mining and Solid Minerals to the Respondent, (Exhibits 1 & 2), public documents for which certification is undeniably required, or private documents? The Evidence Act has made clear provisions to guide parties and the courts in this matter and for ease of reference, the contents of Sections 102 and 103 of the Evidence Act are set out hereunder:
“102. The following documents are public documents –
(a) Documents forming the official acts or records of the official acts of-
(i) The sovereign authority,
(ii) Official bodies and tribunals, or
(iii) Public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and
(b) Public records kept in Nigeria of private documents.
103. All documents other than public documents are private documents.”
I am of the considered view that, going by the above provisions, the licence and certificate of revalidation issued to the Respondent by the said Ministry, an official body/authority, to the Respondent, (Exhibits 1 & 2), are public documents. That being the case, the law is since settled that the contents of a document can be proved in a proceeding by tendering the original document, or where the original is unavailable, by a certified copy of the said original as secondary evidence of the contents of the said original. Section 104 (1) & (2) (formerly 111(i) of the Evidence Act provides thus:
(1) “Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.
(2) The certificate mentioned in subsection (1) of this section shall be dated and subscribed by such officer with his name and official title, and shall be sealed whenever such officer is authorised by law to make use of a seal, and such copies so certified shall be called certified Copies.”
It is clear from these provisions that the only acceptable secondary evidence of a public document is a certified copy of the document. These provisions have put the position precisely, concisely and beyond speculation or conjecture by the words “but no other kind of secondary evidence is admissible” in Section 90(1) (c) (formerly 97 (2) (c) of the Act. Niki Tobi, JSC, in Araka V. Egbue (2003) 7 SCNJ 114 stated the rationale behind this provision lucidly at page 126 of the Report as follows:
“One main objective behind Section 97 (2) (c) of the Evidence Act is to ensure the authenticity of the document tendered vis-a-vis the original. This is in addition to the need for the preservation of public documents. In this age of sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the con of Section 97 (2) (c) could be tutored and therefore not authentic. Photo tricks could be applied in the process of copying the original document with the result that the copy, which is secondary evidence, does not completely and totally reflect the original and therefore not a carbon copy of the original. The court has not the eyes of an eagle to detect such tricks.”
Exhibits 1 & 2 are undoubtedly not in conformity and lack all the requirements stipulated by the relevant provisions of the Evidence Act. They are evidently photocopies of originals which are not certified. This non-certification of these public documents renders them inadmissible and same cannot be used by the court. See the decisions in Goodwill & Trust Investment Ltd V. Witt & Bush Ltd (2011) 3 SCNJ 241; Federal Airports Authority of Nigeria (FAAN) V. Wamal Express Services (2011) 1 SCNJ 133; Agagu V. Dawodu (1990) 9 NWLR (Pt. 160) 56.
It is therefore difficult to see how the Court below acted on the said documents, even after its attention had been drawn to this fact by learned Counsel for the Appellant. Indeed, the lower Court simply ignored the submissions thereon and failed to resolve the issue one way or the other before it proceeded to act on the documents to grant the order of injunction sought.
A court of law is expected in all proceedings before it to admit and act only on legal evidence. Accordingly where a trial Court inadvertently admits evidence which is absolutely inadmissible, it has a duty generally not to act upon it but rather to discountenance it. So too, if a document is unlawfully received in evidence in the trial Court, an appellate court has inherent jurisdiction to exclude and discountenance the document. See the decision in I.B.W.A. V. Imano Ltd (2001) 3 SCNJ 160.
Thus, Exhibits 1 & 2, which are the cynosure of this Appeal, not being certified within the meaning of Section 111, (now 104 (1) & (2)) of the Evidence Act, should properly have been disregarded by the lower Court. It is therefore incumbent on this Court, pursuant to our powers in Section 15 of the Court of Appeal Act, 2004, to exclude and discountenance the said exhibits as inadmissible evidence. The documents are therefore hereby discountenanced.
It is thus for all these reasons that I hold that the lower court acted in error when, without resolving the issue of the admissibility or otherwise of the Exhibits 1 & 2, it relied on same to find that the Respondent had proved the existence of a legal right worthy of protection by an order of injunction. It is further my finding that the said Exhibits I & 2 are inadmissible being uncertified photocopies of public documents. I therefore resolve issue one in favour of the Appellant.
In respect of issue two, which is predicated on Grounds 3, 4, 5 & 6 of the Grounds of Appeal, learned Counsel relied on the decision of the Supreme Court in Oduntan V. General Oil Ltd (1995) 4 SCNJ 145; & Uket V. Okpa (2005) 8 NWLR (Pt.983) 464 for the principles to follow and issues to consider in the grant or refusal of an order of interlocutory injunction. Counsel refers to its written address before the lower Court at pages 85 – 87 of the Record where he argued that the Respondent was unable to show that the balance of convenience was in its favour, that damages can adequately compensate the Respondent in the event that the application is refused and it succeeds in its final claim, and that the Respondent was guilty of delay in bringing the application, since the activity sought to be restrained had been on-going, to the knowledge of the Respondent, for more than one year before the application was brought. Yet, the trial Court having reviewed these submissions of Counsel and issues raised therein, failed to resolve same one way or the other before going on to grant the order sought. Learned Counsel thus submits that where, as in this case, the lower Court failed to consider the relevant issues in the determination of the application for injunction, the appellate court will, in the exercise of its powers, consider the issues. He therefore urged the Court to go ahead and do so.
On the issue of the balance of convenience, learned Counsel for the Appellants submits that the Respondent was not able to show that the balance of convenience in the application was in its favour, and that damages cannot adequately compensate it for whatever injury it may suffer if the application was refused, nor that the Appellants would not be able to pay any damages that would be so awarded. Instead, the lower Court actually found that the Respondent can be compensated in damages in view of the depositions in its affidavit, and so refused prayer two on the motion paper. Counsel also contends that, since the Respondent claims N900, 000,000.00 as damages in the substantive suit, this confirms that its remedies are found in monetary damages. Reliance is placed on Orji V. Zaria Industries Ltd (19921 1 NWLR (Pt. 216) 124; & American Cyanamid Co. V. Ethicon Ltd (1975) AC 395. Learned Counsel thus urged the Court to hold that in view of the evidence and the express finding of the lower Court that damages could adequately compensate it, the Respondent was not entitled to the order of injunction granted to it.
It is further submitted by Counsel that the conduct of the Respondent in making this application was reprehensible in that it was guilty of undue delay in bringing it. Going by the affidavit evidence of the Appellants, particularly paragraphs 6 and 10 (a) thereof, the Appellants averred that the acts complained of had been on-going for a period of more than one year before filing the application and with no form of complain from the Respondent. This issue was also raised and canvassed in the written address of the Appellants. Nonetheless, the Respondent neither countered these facts in its counter affidavit nor did it respond to the arguments on this in its written address, and so it is deemed admitted. Counsel therefore contends that the admitted delay in bringing the application for an injunction defeats the application and the lower Court should not have granted it. Reliance is placed on Nika Fishing Co. Ltd V. Lavina Corporation (2008) 15 NWLR (Pt. 1114) 509; Anosike Building & Comm. Co. v. F.C.D.A. (1994) 8 NWLR (Pt. 363) 421; & Kotoye V. C.B.N. (1989) 1 NWLR (Pt. 98) 419. Counsel urged the Court to hold that the application is defeated by the fact of delay by the Respondent who stood by and watched while all the activities on site went on for over one year without complaining or coming to court. He therefore urged the Court to allow the Appeal and set aside the order of injunction on the grounds that damages would adequately compensate the Respondent; that the balance of convenience weighed more in favour of refusing the application; and the delay in bringing the application defeated it.
It is noted that The Respondent’s response in regard to Grounds 3 & 6 was made under his issue (2), which issue, as well as submissions, have been earlier discountenanced by this Court. However, the Respondent’s issue (3) is akin to the Appellants’ issue (2). Learned Counsel therein submits that the Appellants offered Exhibit MD1, an agreement for “sale & Purchase of Minerals/Lease of Machineries & Hiring of Expatriate Staff Agreement” with ‘Zumunci Multi-Purpose Co-operative Society Ltd’ as the sole justification for carrying out extensive mining activities and evacuation of Minerals from the area covered by the Lease. No further evidence is disclosed to show that the said ‘Zumunci Multi-Purpose Co-operative Society Ltd’ has any interest that is in consonance with Section 46 of the Act. Since Sections 59 (2) & 93 exclude any other interest in an existing Exploration Licence Area, the injunction granted by the lower Court should be held as appropriate.
On where the balance of convenience lies, learned Counsel submits that the Appellants have admitted to carrying out mining operations and yet have not shown any legal right or interest, thereby admitting to impunity. Thus Counsel contends that, between the Appellants’ impunity in un-authorized mining and evacuation of the minerals, the Respondent’s rights inured in the Exploration Licence, and Section 61 (4) of the Act, the balance of convenience favours the Respondent in the preservation of the mineral deposits by the interlocutory injunction granted by the lower Court.
On the allegation of delay made against the Respondent in bringing the application, Counsel cites paragraphs 16, 17, 18 & 19 of the affidavit of Uche Ezealor, as well as Exhibit 5 & 6 to disprove same. He submits that the issue of delay goes to no issue.
On the issue of damages being adequate compensation, Mr. Amechi, learned Counsel for the Respondent, submits that since the Minerals & Mining Act does not allow for the removal of any minerals from the Exploration Area other than as provided for under Section 60 (e) & (g), the argument of compensation for the Respondent by the Appellants cannot be sustained. Thus the lower Court had a duty to issue the injunction to give effect to the preservation of the minerals. In addition, Counsel contends that the reluctance of the lower Court to grant the order to seal the warehouse as urged on the lower Court in its prayer 2, explaining that compensation may inure or serve as recompense, does not detract from the power of the lower Court to stop further mining and evacuation of minerals by the Appellants, the legality of which is at the root of the substantive suit. Counsel submits that, given the prohibitions contained in the Minerals & Mining Act, 2007, the argument of the Appellants relating to compensation is untenable and inapplicable to this matter.
Furthermore, learned Counsel submits that the claim for N900,000,000.00 relates to the completed acts of the Appellants with respect to the unlawful mining and evacuation that has occurred which must be distinguished from the future interest of the Respondent entitled to the mining Lease in the area covered by the Exploration Licence. He contends that this must be distinguished from a situation where the Respondent is already a holder of a mining Lease, in which case, it would be entitled to compensation. Counsel argues that compensation is however not applicable in the instant case because at the exploration stage, the Minerals which are still deposits in the ground can only be protected and preserved for the Exploration Licence holder. (Reference is made to Section 60 (e) & (g) of the Act respectively). He submits that this is what was done by the lower Court by the grant of the order of injunction to prevent further mining and evacuation of the deposits, pending the determination of the substantive suit.
It must be stated, ab initio, that the law is settled that, except under some stated conditions, the Court of Appeal will not interfere with a discretion or finding of fact by a trial court. But where the discretion of the trial court was not judicially or judiciously exercised or where the finding of fact was perverse, the Court of Appeal will definitely interfere. See Makinde V. Akinwale (2000) 2 NWLR (Pt. 645) 435; Chikere V. Okegba (2000) 12 NWLR (Pt. 681) 274; Acme Builders Ltd V. K.S.W.B. (1999) 2 NWLR (Pt. 590) 288; Uzochi V. Onyemwe (1999) 1 NWLR (Pt. 587) 339. This Court will not interfere in the exercise of the discretion of a lower court unless the exercise of such discretion is “manifestly wrong, arbitrary, reckless or injudicious”. See per Nnamani, JSC in University of Lagos (1985) 7 NWLR 156 @ 163. See also In Re Adewunmi (1988) 13 NWLR (Pt. 83) 483; Lauwers Import-Export V. Jozebson Ltd. (1988) 13 NWLR (Pt. 88) 430; Nwabueze V. Nwosu (1988) 4 NWLR (Pt. 88) 257-262.
In the instant case, following my findings under issue one that the lower Court was in error when it failed to resolve the issue raised as to the admissibility or otherwise of Exhibits 1 & 2, and yet it went on to rely on same to find that the Respondent had a legal right worthy of protection by the grant of an injunction, I am of the view that the exercise of discretion by the trial Court was injudicious. It was also perverse as it was given adverse to the facts before it as disclosed in the affidavits. For that reason, I must interfere in the plainly wrongful exercise of discretion by the trial Court. Furthermore, in instances such as this, the Court of Appeal is empowered under Section 15 of the Court of Appeal Act to generally have full jurisdiction over the whole proceedings as if the proceedings have been instituted in the Court of Appeal as a court of first instance and may hear the case in whole or in part.
The principles for the grant of an interlocutory injunction have been well stated and restated in decisions of the highest Court of our land time and again, enough to make them now a matter of judicial recognition. An interlocutory injunction is procedurally between an interim injunction and a perpetual injunction, and it is granted pending the determination of the case. The locus classicus is Kotoye V. Central Bank of Nigeria (1989) 1 NWLR (Pt. 98) 419. In that case, the Supreme Court held as follows:
(a) “That the applicant must show that there is a serious question to be tried, i.e., that the applicant has a real possibility, not a probability of success at the trial, notwithstanding the defendant’s technical defence (if any), (Obey Memorial Specialist Hospital V. A-G Federation (1987) 3 NWLR (Pt. 50) 325 followed).
(b) That the applicant must show that the balance of convenience is on his side; that is that more justice will result in granting the application than in refusing it, Missini V. Balogun (1958) 1 ALL NLR 318 referred to.
(c) That the applicant must show that damages cannot be an adequate compensation for his damage or injury, if he succeeds at the end of the day.
(d) That the applicant must show that his conduct is not reprehensible for example that he is not guilty of any delay.
(e) No order for an interlocutory injunction should be made on notice unless the application gives a satisfactory undertaking as to damages save in recognised exceptions.
(f) Where a court of first instance fails to extract an undertaking as to damages, an appellate court ought normally to discharge the order of injunction on appeal.”
See also Akinpelu V. Adegbore (2008) 4 SCNJ 220; 7- Up Bottling Co. Ltd V. Abiola & Sons (Nig) (1995) 3 NWLR (Pt. 383) 257; Ogbonnaya V. Adapalm (Nig) Ltd (1993) 5 NWLR (Pt. 292) 147; Sotuminu V. Ocean Steamship (Nig) Ltd (1992) 5 NWLR (pt. 293) 1; Akibu V. Oduntan (1991) 2 NWLR (Pt. 171) 1; Globe Fishing In. Ltd V. Coker (1990) 7 NWLR (Pt. 162).
One other factor which is of importance to be considered for the grant of an interlocutory injunction is the preservation of the res. It is the province of the law that the res should not be destroyed or annihilated before the judgment of the court. The res in this case is the mining site at Kampani Zurak in Wase L.G.A. of Plateau State. The order of injunction is available to restrain a defendant from the repetition or the continuance of the wrongful act or breach of contract complained of. See the cases of Adenuga V. Odumeru (2001) 1 SCNJ 34; Union Beverages Ltd. V. Pepsicola International Ltd (1994) 3 NWLR 1. This is with the object of keeping matters in status quo until the question in issue between the parties is determined. See Okafor V. Nnaife (1987) 4 NWLR 613; Ojukwu V. Lagos State Government (1985) 3 NWLR 39.
It however is of paramount importance in applications of this nature that an applicant, seeking to stop the actions of an opposing party by the injunctive powers of the court, must show that he has sufficient interest in the reliefs sought. Put in other words, before the Respondent can be entitled to an order of injunction against the Appellants, it must be established that it has a legal right capable of being protected by such an order. See Akerele V. Awolowo (1962) WNLR 220 @ 224.
The main purpose of an interlocutory injunction is thus to protect a plaintiff against injury by a violation of his right for which he cannot be adequately compensated in damages recoverable in the action if the case were resolved in his favour, at the trial. See the case Dyktrade Ltd V. Omnia Nig Ltd (2000) 7 SCNJ 90. It is therefore fundamental and indispensable that the Respondent must establish such a right before an order of interlocutory injunction may be made in its favour.
It seems clear to me that the Respondent, contrary to the finding of the lower Court, failed to disclose that it had any legal right to protect against the Appellants in Court. Therefore, I adopt all my findings under issue one above where I have found as a fact that the Respondent failed to establish before the lower Court that it has any legal right whatsoever to protect since Exhibits 1 & 2 relied upon by the Court below, the purported licence and certificate, were legally inadmissible.
In addition to the absence of a legal right to protect, it is the law that interlocutory injunctions are only granted in cases of urgency. Thus, an applicant who is guilty of delay thereby demonstrates the absence of any urgency requiring prompt relief. See Udeozo V. Ochoma (2006) 2 SCNJ 278. In this case, no urgency was disclosed by the Respondent to enable this Court exercise its discretion in its favour. Instead, from the affidavit evidence of the Appellants, in conjunction with that of the Respondent, the Respondent’s behaviour can rightly be described as lackadaisical, laid-back and apathetical. This is because the Respondent leisurely waited in the wings and watched the Appellants mine the land, gleefully counting the alleged tons and tons of minerals removed from the land, at the rate of twelve (12) trucks a day, for over one year before approaching the lower court for relief, seeking an order of injunction and the whopping sum of Nine Hundred Million Naira (N900, 000, 000.00) in damages for the minerals allegedly removed from the site. The Respondent was manifestly guilty of delay, and it is trite that delay defeats equity, particularly where the exercise of the discretion of a court is sought. It is no wonder that the lower Court refused the second prayer of the Respondent to seal the warehouse where the minerals were allegedly stored, since it is evident that the Respondent’s losses, if proved, can be compensated in damages.
Having taken a full and careful look at all the facts of this case as disclosed in the parties’ affidavits and the legally admissible evidence before the trial Court, I take the firm view that the trial Court’s discretion was wrongly exercised and it is liable to be set aside in the interest of justice. Issue two is resolved in favour of the Appellants.
In respect of the third and final issue, Mr. Ugwuala, learned Counsel for the Appellants, submits that the learned trial Court was wrong when it made the order of injunction without first resolving the issue of proper parties raised before it by the Appellants. He refers to paragraphs 5-11 & 16 of the Appellants’ counter affidavit before the trial Court where they had disclosed that they were, at best, merely agents of the Company carrying out the mining activities complained of, i.e. Kampani Zurak Community, as they were hired by the latter to carry out the said jobs. In furtherance of this, Kampani Zurak, applied to be joined as a party to the matter two weeks before the Ruling of the lower Court was delivered. The said Kampani Zurak Community deposed to facts confirming this in the several affidavits in support of its motion for joinder. It also expressly admitted to being the party carrying out the mining activities complained of and not the Appellants. That being the case, Counsel submits that the Appellants were not the proper parties against whom the order of injunction ought to have been made, but Kampani Zurak Community, who unfortunately, were not parties at the time. Learned Counsel therefore submits that the lower Court ought to have considered all these facts placed before it in coming to its decision. Further to this, Counsel contends that even the 2nd Appellant as the Managing Director of the 1st Appellant Company, was thus also an agent of a disclosed principal, the order of injunction ought not to have been made against him. Reliance was placed on a number of authorities which shall be considered as we go along. He therefore urged the Court to allow the Appeal on this issue also and hold that the Appellants were not the proper parties against whom the order of injunction should have been made.
In conclusion, Mr. Ugwuala urged the Court to allow the Appeal, set aside the orders of injunction made by the trial Court and in its place, enter an order dismissing the Respondent’s motion for injunction,
In its Response, Mr. Amechi, learned Counsel for the Respondent, submits that the Appellants never revealed to the lower Court the existence of a contrary title to the Respondent’s Licence 1100EL, which formed the basis of their carrying out mining operations and the depletion of the minerals, He submits that it is of no moment that the Appellants claim to be related to any other person of no revealed legal right or interest. On the other hand, at the time the application was argued and reserved for ruling, the Appellants were the only defendants presented to the lower Court and the facts place the mischief as their responsibility. Reliance is placed on Nwoke V. Okoye (2010) 41 NSSQR 1 @ 46; & Ayorinde v. Airat (2000) 75 LRCN 206 @ 235. Counsel therefore submits that the Appellants have not made a case to warrant tampering with the discretion of the trial Court in the grant of the interlocutory injunction.
Indeed, Exhibit MD1 annexed to the Appellants’ counter affidavit is an agreement which alleged that the Appellants’ presence on the land was as agents of a disclosed principal. Since this is also a crucial issue in the determination of the Appeal, I will reproduce relevant portions of the agreement hereunder:
“SALE AND PURCHASE OF MINERALS/LEASE OF MECHINARIES AND HIRING OF EXPATRIATE STAFF AGREEMENT
THIS AGREEMENT entered into this 10th day of July 2008 by and between SOLID UNIT NIGERIA LTD … (hereinafter referred to as the “Company”)…
AND
ZUMUNCT MULTI-PURPOSE CO-OPERATIVE SOCIETY LTD … (hereinafter referred to as the “Community”)…
NOW THIS AGREEMENT WITNESS AS FOLLOWS.
1. That the Community shall lease equipment and expatriate workers from the company at a fee and price to be determined by the Community and the Company from time to time depending on the prevailing rate at the point in time.
2. That the Community shall sell all the mined products to the Company at a price to be determined by both the Community and the Company depending on the prevailing rate at the point in time.
3…
IN WITNESS WHEREOF the parties herein have executed this agreement in the manner herein the day and year above written.
THE COMMON SEAL OF within name ZUMUNCI MULTI-PURPOSE COOPERATIVE SOCIETY LTD was affixed hereunto in the presence of
(Signed & Sealed) (signed & Sealed)
Chairman Secretary
THE COMMON SEAL OF within named SOLID UNIT NIG. LTD was affixed hereinto in the presence of
(Signed & Sealed) (Signed & Sealed)
Managing Director Secretary”
At pages 112-117 is a motion on notice filed on 15th June, 2010 by three named persons, for themselves and on behalf of Zumunci Multi-purpose Co-operative Society Ltd, as Applicants, against the Respondent/Plaintiff and the Appellants/Defendants as Respondents, seeking:
“a) An order joining the Applicants as co-Defendants in suit No FHC/J/CS/21/2010.”
In support of the motion is a 5 paragraph affidavit wherein the Applicants state inter alia thus:
“3 a) That the Defendants/Respondents are working for the Applicants on their land at Kampani Zurak, Was L.G.A. which land the Plaintiff claims it is covered by EL100 belonging to it.
b) That the Plaintiff/Respondent sued the Defendants/Respondents before this Honourable Court claiming among others that it has exploration licence (EL100) covering the land.
c) That the Plaintiff/Respondent is also challenging the Defendants/Respondents over the work the Defendants/Respondents are doing for the Applicants on the land at Kampani Zurak Wase L.G.A. which the Plaintiff/Respondent claim to have EL100 covering it,
d) hat the land in which the Plaintiff/Applicant (sic) is seeking reliefs contained in the Plaintiff/Applicant (sic) statement of claim belongs to the Applicants, the Plaintiff/Respondent have no interest whatsoever on the land.
e) That the subject matter of litigation between the Plaintiff/Respondent and the Defendants/Respondents belongs to the Applicants
f) That the Applicants through the 4th Applicant engaged the services of the Defendants/Respondents to work and mine on their behalf on their land which the Plaintiff/Respondent claims to have EL1100 covering it.
g) That the Applicants intend to defend and counterclaim against the Plaintiff/Respondent in suit No. FHC/J/CS/21/2010.”
The Applicants accompanied their motion with a “Written Address” at pages 115-117 of the Record. Upon being served these processes, the Respondent herein promptly filed its counter affidavit to this motion on 26-06-2010 as well as its “Written Address” and same is contained at pages 118-123 of the Record, to which the Applicants filed a “Further & Better Affidavit” and “Written Address” in support at pages 124-142 of the Record. Wherein the Respondent/Plaintiff again filed a “Further Written Address” in reply to the issues raised in the Further and Better Affidavit at pages 142-144, which provoked a “Reply to Further Reply” by the Applicants seeking to be joined at pages 145-146 of the Record.
On the 30-06-2010, the matter came up before the lower Court for ruling in the application for the grant of an interlocutory injunction against the Appellants. In the interim, the above-mentioned motion for joinder had been filed, precisely two weeks before the date slated for the ruling. It is the law that it is the duty of a court to take judicial notice of all processes filed in a matter before it. See Nwora V. Nwabueze (2011) 12 SCNJ 67. Thus, the very contentious nature of the application for joinder should have been a red flag to the Court below on the necessity to settle the issue of the proper parties before it. However, surprisingly, when the lower Court’s attention was drawn to the application by Counsel for the Applicants, who was in Court, the Court below declined to hear it. (See pages 152-153 of the Record).
A necessary party to a proceeding is a party whose presence and participation in the proceeding is necessary or essential for the effective and complete determination of the claim before the court See In Re-Mogaji (1986) 1 NWLR (Pt. 19) 579.
The law requires that a person who has an interest in any case, and who is aware of a pending action in a court of law involving this same interest should at the earliest opportunity seek to be joined as a party in the suit. A party cannot fold its arms and wait, leaving other parties to fight its battles for him as the suit is in progress, only to seek to grab an advantage at the end of the proceedings at the trial court.
Furthermore, an application for joinder may be entertained and granted to avoid a multiplicity of actions or to eliminate the possibility of two courts of coordinate jurisdiction, giving different and conflicting decisions in two cases that are substantially the same. See the cases of Bank of Ireland V. Union Bank (1998) 7 SCNJ 385; Kigo (Nig.) Ltd V Holman Bros (Nig.) Ltd (1990) NSCC 204 @ 211. Thus, a party may be joined as a person interested in a suit very early or midstream, depending on when he became aware of the pending proceedings. See Re: Arowolo (1993) 2 NWLR (Pt. 275) 317.
The reason for making a person a party to an action is that he should be bound by the result of the action. Consequently, the question to be settled in the action must be one which cannot be effectually and completely settled unless he is a party. Joinder is necessary to ensure that proper parties are before the court for determining the point in issue. An application to join may be made at any time. Se
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
1. SOLID UNIT NIG. LTD
2. ABDULLAHI ADAMU USMAN
(ALIAS DAN CHINA) Appellant(s)
AND
GEOTESS NIG. LTD Respondent(s)
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): The Respondent in this Appeal had commenced an action before the trial Court against the Appellants via a Writ of Summons and Statement of Claim filed on the 14th May, 2010 seeking:
i. “A Declaration that the Defendants have no right whatsoever to enter into the land covered by Exploration Licence No. 1100EL at Kampani Zurak, Wase Local Government Area of Plateau State, and carry out any mining activity whatsoever same being vested in the plaintiff under the Nigerian Minerals and Mining Act, 2007.
ii. Order of perpetual Injunction, restraining the Defendants by themselves, Agents or Privies from further entering into the area covered by the Plaintiff’s Exploration Licence, No. 1100EL situate and located at Kampani Zurak, Wase Local Government Area of Plateau.
iii. The sum of N900, 000, 000,00 (Nine Hundred Million Naira Only) as damages with respect to the unlawfully mining and evacuation of minerals by the Defendants which has occurred from the mining area covered by the Plaintiff’s Exploration Licence, No 1100EL.
iv. The cost of this action.”
Simultaneously, it filed a motion on notice seeking an order of interlocutory injunction against the Appellants, the lower Court having already made interim orders of injunction pursuant to a motion exparte. Therein, Respondent sought the following reliefs:
1. “For interlocutory injunction restraining the Defendants either by themselves, their agents, privies or any other person whatsoever acting on their behalf from entering into the area covered by Exploration License No. 1100EL which is issued to the Plaintiff by the Ministry of Mines and Steel Development (at Kampani Zurak, Wase Local Government Area) and carrying out any mining or other related activity whatsoever and/or evacuating any mineral from the said EL area, pending the determination of the substantive suit now pending before this Honourable Court.
2. Order sealing the Warehouse of the Defendants situate at Dengi, behind Royal House stocked Lead and Zinc brought from the site Kampani Zurak, Wase Local Government Area pending the determination of this suit.”
Both the Respondent and the Appellants filed their affidavits and counter affidavit respectively as well as their written addresses, wherein their arguments thereto where marshaled and canvassed. Ruling on the application on the 30th June, 2010, the learned trial Judge, Bello, J., granted the application in part in these terms (at pages 169-170 of the Record):
“I have examined carefully the affidavits (sic) evidence of both the plaintiff and the defendant and the exhibits attached, and also considered the erudite submissions of both counsel as could be seen above. Again at the beginning of this ruling I have also considered the facts of this case as disclosed by the plaintiff’s pleadings. In the circumstances of this case, I am of the view that the plaintiff has shown the existence of a legal through his exhibit 1 and 2 that is worthy of protection by an injunction. Consequently, prayer one of the plaintiff/applicant is granted pending the determination of the substantive suit, prayer 2 is not granted because the plaintiff has shown in the affidavits in support of this application that it has kept counts (sic) of the minerals that the defendants carted away from its Exploration Area. That could be compensated by damages if proved.”
(Underlining supplied for emphasis)
Dissatisfied by this Ruling, the Appellants filed an Appeal against same via their Notice of Appeal filed on 16/07/2010 wherein they complained on seven (7) Grounds. The Grounds of Appeal bereft of their particulars, state as follows:-
“Ground one:
The learned trial Court erred in law and occasioned a miscarriage of justice when it held thus:
“In the circumstances of this case, I am of the view that the plaintiff has shown the existence of a legal right through his EXHIBIT 1 and 2 (sic) that is worthy of protection by an injunction. Consequently, prayer one of the Plaintiff/Applicant is granted pending the determination of the substantive suit”
Ground Two:
The learned trial court erred in law, and thus occasioned a miscarriage of justice, when without first resolving the issue of the admissibility of EXHIBITS 1 and 2 to the Respondent’s motion, it relied on the said EXHIBITS to grant the interlocutory injunction sought by it.
Ground Three:
The learned trial Judge erred in law and, thus occasioned a miscarriage of justice, when, without resolving the question of balance of convenience, it granted the Respondent the order of interlocutory injunction sought by it.
Ground Four:
The learned trial Court erred in law and thus occasioned a miscarriage of justice when it granted the Respondent the order of interlocutory injunction it sought, when the Respondent did not prove that if it were to succeed at the trial in establishing its right to a permanent injunction, it would not be adequately compensated in damages.
Ground Five:
The learned trial Court erred in law and thus occasioned a miscarriage of justice, when, without resolving the issue of delay on the part of Respondent in bringing its application for injunction, it granted the Respondent the order of injunction sought.
Ground Six:
The learned trial Court erred in law and thus occasioned a miscarriage of justice when without following the led (sic) down principles for the grant or refusal of interlocutory injunctions, it granted the injunction sought by the Respondent who did not make out a case for the grant of same.
Ground Seven:
The learned trial Court erred in law and occasioned a miscarriage of justice, when it granted (sic) interlocutory injunction against the Appellants who were not proper parties before it, without resolving the question of the propriety or otherwise of their being parties in the matter.
The Appellants thus prayed the Court to allow the Appeal on these grounds, set aside the order of injunction made by the trial Court, and in its place, enter an order dismissing the Respondent’s motion for want of merit.
The Respondent filed a Notice of preliminary objection to the hearing of the Appeal on the 26th August, 2010, the grounds of which are stated thus:
1. The Appeal is incompetent for the reason that no leave was obtained to file same in consonance with the provisions of Section 241 of the Constitution of the Federal Republic of Nigeria, 1999 and Section 15 of the Court of Appeal Act, the Appeal being an interlocutory Appeal.
2. Grounds 1, 2, 3, 4, 5, 6 and 7 of the Appeal are all of law and facts for which leave is required as an interlocutory Appeal, and for the Appeal to be struck out for the reason of the incompetence.
Parties filed their Briefs of argument setting out their arguments in the Appeal. The Appellant’s Brief was filed on the 27-07-10, while the Respondent’s Brief was filed on 26-08-10. Thereafter, the Appellants’ Reply Brief was filed on 07-09-10. On the 6th February, 2013, when the Appeal was called up for hearing, Mr. Komak, learned Counsel for the Respondent, referred the Court to the Notice of preliminary objection and adopted his arguments as set out at pages 3 – 5 of the Respondent’s Brief of argument as his arguments on the objection. He urged the Court to strike out all the Grounds of Appeal for being incompetent, Mr. Ugwuala, learned Counsel for the Appellants, referred to pages 1-3 of his Reply Brief for his arguments on the preliminary objection raised to the hearing of the Appeal. He adopted these arguments in response to the objection and prayed the Court to dismiss same.
In respect of the main Appeal, Mr. Ugwuala adopted and relied on the Appellants’ Brief, as well as the arguments contained at pages 3-5 of the Reply Brief, as his arguments in this Appeal. He urged the Court to allow the Appeal and set aside the Ruling of the Federal High Court. In like vein, Mr. Komak adopted and relied on his arguments as set out at pages 5-18 of the Respondent’s Brief as his arguments in this Appeal. He urged the Court to dismiss the Appeal.
In arguing the preliminary objection to the hearing of the Appeal at pages 3-5 of his Respondent’s Brief of argument, the Respondent contends that the Appellants failed to seek leave to leave to file this interlocutory Appeal. He argues that the Grounds of Appeal relate to mixed facts and law. Specifically, Grounds one and two are attacks against Exhibits 1 and 2 which are in the nature of facts, as well as the collateral facts thereto. Indeed, he contends that all the Seven (7) Grounds are all tied to facts. He relies on Shell Petroleum Dev. Co. of Nigeria Ltd. v Katad Nig. Ltd (2006) 1 NWLR (Pt. 9960) 198; B.A.S.F. Nig. Ltd V Faith Enterprise Ltd (2010) 41 NSQR 381, amongst other authorities, to urge the Court to strike out all the Grounds of Appeal as well as the Appeal itself, for being incompetent.
The Appellants’ response to the objection, as aforesaid is at pages 1-3 of their Reply Brief. They refer to Section 241 (1) (f) (ii) of the 1999 Constitution to submit that the Appellants’ Appeal, being an Appeal against the grant of an injunction by the lower Court, does not need the leave of either the lower Court or of this Court to be competent. The Appellants argue that an Appeal shall lie from the decision of the High Court as of right in any decision where an injunction is granted or refused. Thus, no leave is required to file such an Appeal. He relies on Attamah & 4 others V. The Anglican Bishop of the Niger & 3 others (1999) 12 NWLR (Pt. 533) 6.
Having reviewed all the arguments of both learned Counsel I am of the view that the objection is totally misconceived. Section 241 (1) (f) (ii) of the Constitution expressly provides thus:
“241. (1) An Appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a)…
(b)…
(c)…
(d)…
(e)…
(f) decisions made or given by the Federal High Court or a High Court –
(i)…
(ii) where an injunction or the appointment of a receiver is granted or refused,”
(Underlining supplied for emphasis)
This Constitutional provision speaks for itself and requires no further elucidation. It thus lays to rest both the first and second Grounds of objection. No leave is required where the Appeal is against the grant or the refusal of an order of injunction. I am not unmindful of the fact that the Respondent, in its Notice of Preliminary Objection also relied on Section 15 of the Court of Appeal Act. It is self-evident that Section 15 of the Act, 2004 is inappropriate to this circumstance, and that the Respondent may have intended to refer to Section 14 thereof, which is more relatable to the issue raised in the objection. Indeed, section 14 of the Act provides:
“14. Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that court or of the Court of Appeal, lie to the Court of Appeal;…”
However, it is settled law that the Constitution being the grundnorm of all laws in this Country; it is the plumb line by which all laws must be measured. The Apex Court has itself given weight to the provision of the Constitution in this regard in the case of Attamah & 4 others V. The Anglican Bishop of the Niger & 3 others (supra). Therein, Kutigi, JSC, (as he then was), delivered the lead Judgment in an Appeal on similar facts from the decision of the Court of Appeal which had dismissed an Appeal from the decision of the High Court refusing to discharge its interim order of injunction. Relying on Section 220 (1) (g) (ii) of the 1979 Constitution, which is in pari materia with Section 241, (1) (f) (ii) of the 1999 Constitution, the learned Jurist held that an appeal shall lie as of right where an injunction is granted or refused.
In regard to the second ground of objection which complains that the grounds of Appeal are grounds of facts and mixed facts and law, there is no further need to consider same having found (as above) that the Appeal is covered by Section 241 (1) (g) (ii) of the Constitution, making the appeal as of right. While agreeing that the decisions in Shell Petroleum Dev. Co. of Nigeria Ltd V. Katad Nig, Ltd (2006) 1 NWLR (Pt. 9950) 198; B.A.S.F. Nig. Ltd V. Faith Enterprise Ltd (2010) 41 NSQR 381, (amongst other authorities cited by the Respondent), enunciate good and sound principles of law, they are inapplicable to the facts in this Appeal as they can be distinguished, not being Appeals from the grant/refusal of injunctions. I therefore find the objection bereft of merit. It is hereby overruled and dismissed.
From the seven (7) Grounds of Appeal, the Appellants distilled three (3) issues for determination by this Court, while the Respondent also formulated three (3) issues. Some of the issues are similar in content. However, since the Appellants’ issues succinctly and precisely address and cover all the areas raised in the Grounds, they are adopted for consideration in the resolution of this Appeal. They are thus paraphrased hereunder:
1. Whether the learned trial Court was right when, without first resolving the issue of the admissibility of the Respondent’s Exhibits 1 & 2 in the interlocutory proceedings, it relied on the said Exhibits to find and hold that the Respondent had shown the existence of a legal right worthy of protection by an injunction,
2. Whether the learned trial Court followed laid down principles for the grant or refusal of an order of interlocutory injunction when, without resolving the issues of adequacy of damages, balance of convenience and delay in bringing the application for injunction, it went ahead to grant the injunction sought.
3. Whether the learned trial Court was right when, without resolving the issue of proper parties raised before it, it made the order of injunction sought against the Appellants who were merely agents of a disclosed principal.
Before going into the merits or otherwise of the Appeal itself, I am of the view that it is prudent to first look into the issue raised by the learned Counsel for the Appellants in his Reply Brief on issue (2) as formulated by the Respondent and the arguments following. This is because its outcome, one way or the other, will determine whether or not the Court can consider the arguments under that issue in response to the Appeal. In his Reply Brief on point of law, Mr. Ugwuala submits that issue (2) formulated by the Respondent does not arise from the Appellants’ Grounds 2, 3 and 6 or any of the Appellants’ Grounds of Appeal. He also submits that, contrary to the issue and arguments therein, none of the Appellants’ Grounds of Appeal raises the issue of whether or not, other than Exhibits 1 & 2, there were other materials/Exhibits that established the Respondent’s interest and right to warrant and sustain the grant of injunction. In addition, Counsel contends that issue (2) and the arguments thereon are an attempt to sustain the grant of the injunction on grounds other than those relied upon by the lower Court, when the Respondent neither appealed nor filed a Respondent’s Notice as required by Order 9 Rule 2 of the Court of Appeal Rules, 2007. He contends that by Rule 3 thereof, the Respondent is prohibited from doing this without prior leave of Court. Counsel therefore submits that, not having not appealed nor complied with these Rules of court, the Respondent’s issue (2) and all the arguments thereon are predicated on a non-issue. Reliance is placed on Odibendi V. Ilodibe (2009) 3 NWLR (Pt. 1128) 269 @ 279. Learned Counsel thus urged the Court to discountenance the Respondent’s issue (2), all the arguments thereon and strike out same. Further reliance is placed on West African Cotton Ltd V. Yankara (2008) 4 NWLR (Pt. 1077) 323 @ 335; & Dada V. Dosunmu (2005) 18 NWLR (Pt. 1010) 134 @ 156 per Onnoghen, JSC. Mr. Ugwuala thus urged the Court to strike out the Respondent’s issue (2) and all the arguments thereon. It is noteworthy that the Respondent did not respond to these submissions, (made on point of law), either orally in Court or in writing.
The issue (2) under reference as set out on page 5 of the Respondent’s Brief of argument state as follows:
“2. Whether, other than Exhibits 1 and 2, there were other materials/exhibits that established the Respondent’s interest and right to warrant and sustain the existence of the court’s discretion to grant the interlocutory injunction.
I have already, (earlier on in the body of this Judgment), set out the Grounds of Appeal filed by the Appellants. Indeed, a painstaking and thorough examination of all the seven (7) Grounds reveals that there is indeed no Ground which deals with the Respondent’s issue (2) purportedly distilled from the said Grounds in its Brief. The issue is not covered by the Grounds at all. Having said that, our recourse must therefore necessarily be to the Rules guiding procedure in this Court to see in what circumstances, if any, a Respondent is allowed to raise issues outside an appellant’s grounds of appeal, and whether the Respondent complied with the rules.
Order 9 Rules 2 & 3 referred to by learned Counsel for the Appellants state as follows:
“2. A Respondent who desires to contend on Appeal that the decision of the court below should be affirmed on grounds, other than those relied upon by that court, must give notice to that effect specifying the grounds of that contention.
3. Except with the leave of the Court, a Respondent shall not be entitled on the hearing of the appeal to contend that the decision of the Court below should be varied upon grounds not specified in a notice given under this Rule, to apply for any relief not so specified or to support the decision of the court below upon any grounds not relied upon by that court or specified in such a notice.
Order 18 Rule 7 of the Court of Appeal Rules also states thus:
“7. A Respondent may, without leave, include arguments in respect of a cross-appeal or a Respondent’s notice in his brief for the original appeal and the cross-appeal or Respondent’s notice.”
The grounds relied upon by the court below in granting the order of injunction are very brief and succinct as contained in its Ruling at pages 158-170 of the printed Record of Appeal. I have already set out the relevant portion of the Ruling complained upon by the Appellants in their Notice of Appeal. It is also the ratio decidendi of the entire decision of the lower Court. However, for ease of reference, the lower Court found thus at page 169 of the Record:
“I have examined carefully the affidavits (sic) evidence of both the plaintiff and the defendant and the exhibits attached, and also considered the erudite submissions of both counsel as could be seen above. Again at the beginning of this ruling I have also considered the facts of this case as disclosed by the plaintiff’s pleadings. In the circumstances of this case, I am of the view that the plaintiff has shown the existence of a legal right through his exhibit 1 and 2 that is worthy of protection by an injunction. Consequently, prayer one of the plaintiff/applicant is granted pending the determination of the substantive suit. Prayer 2 is not granted because the plaintiff has shown in the affidavits in support of this application that it has kept counts (sic) of the minerals that the defendants carted away from its Exploration Area. That could be compensated by damages if proved.”
From the above, the trial Judge was very specific in her finding. What is also crystal clear is that the learned trial Judge based her decision to grant the order of injunction solely on the ground that the Respondent had disclosed the existence of a legal right worthy of protection based exclusively on its Exhibits 1 & 2. It is against this finding that the Appellants thus found Grounds one & two in their Notice of Appeal.
In the instant Appeal, it is beyond dispute that the Respondent did not file a cross-appeal. It is also incontestable that he did not file a Respondent’s Notice to contend that the decision of the court below be affirmed on reasons other than those relied upon by the said court. What this therefore means is that any reference, by the Respondent in its Brief of argument, to any other materials or exhibits that the lower Court should have, (in addition to Exhibits 1 & 2), relied upon to grant the injunction sought, is extraneous to this Appeal and cannot be raised by the Respondent, except in the circumstances as allowed by the Rules of this Court. Since however it is beyond disputation that the Respondent neither filed a cross-appeal nor a Respondent’s Notice to contend, (as required in Order 9 Rules 2 & 3 of the Rules of Court), the door is shut against it to now sneak in this issue through the back door, as it were, in its Brief of argument. I therefore, without further ado, uphold the arguments of Counsel for the Appellants in this respect. I hereby strike out issue 2 formulated by the Respondent in its Brief and discountenance all the arguments canvassed thereon.
In arguing issue one, Mr. Ugwuala, learned Counsel for the Appellants, argues that, in opposing the motion for the grant of the interlocutory injunction, the Appellants had challenged the admissibility of the Respondent’s Exhibits 1 & 2 on the ground that they are photocopies of public documents and ought to have been certified as true copies before the lower Court could look at them. The Respondent disagreed and argued that they were private documents. Counsel contends that the lower Court having reviewed the arguments of both Counsels, failed to resolve this issue, and instead, went ahead to rely on them in arriving at its decision to grant the order of injunction sought. Counsel relies on the decision in Federal College of Education, Pankshin V. Pusmut (2008) 12 NWLR (Pt. 1101) 405 to submit that the lower Court had a duty to consider and decide on the submission of Counsel one way or the other before relying on the said Exhibits to make its findings. This was also imperative in the event of an Appeal, in order for this Court to have the benefit of its opinion on the issue of the admissibility of the documents.
Learned Counsel further submits that the Exhibits 1 & 2, purporting to be an Exploration Licence and its revalidation certificate, are inadmissible in the proceedings being un-certified copies of public documents. Reliance is placed on Sections 97 (2) and 109 (a) of the Evidence Act. Counsel submits that Exhibits 1 & 2, being an Exploration Licence and its revalidation certificate, are issued by the Mining Cadastre Office, (a body corporate established under Section 5 (1) & (2) of the Nigerian Minerals & Mining Act, 2007), pursuant to its powers under Section 59 (1) of the Nigerian Minerals & Mining Act. Counsel referred to the case of Bisichi Tin Co. Ltd V Commissioner of Police (1963) NRNLR 71. Counsel submits that Exhibits 1 & 2 were inadmissible in law and could not be received in evidence in proof of any claim of right because the Court can only act on admissible evidence in all proceedings, whether interlocutory or substantial. He relied on a number of authorities, amongst which are: Araka v. Egbue (2003) 17 NWLR (Pt. 848) 1; Alade V. Olukade (1975) 2 SC 183; Abuul V. Benue State University (2003) 15 NWLR (Pt. 845) 59; Ajibiye V. Duro (2010) ALL FWLR (Pt. 507) 136; Fawehinmi V. I.G.P (2000) 7 NWLR (Pt. 665) 481; Alamieyeseigha V. Federal Republic of Nigeria (2005) 15 NWLR (Pt. 1004) 1; Babatunde V. Pan Atlantic Shipping & Transport Agencies Ltd (2007) 113.
Learned Counsel finally submits that the learned trial Court wrongly exercised its discretion to grant the injunction sought by using, acting and relying on legally inadmissible exhibits in coming to its decision that the Respondent had a legal interest worthy of protection by an injunction. Thus, he submits, the finding of the learned trial Judge was not supported by evidence. He urged the Court to set aside the finding of the learned trial Court made on the strength of the Exhibits 1 & 2.
Mr. Amechi, learned Counsel for the Respondent, in response to these arguments submits that, having regards to the provisions of the Nigerian Minerals & Mining Act, 2007, particularly Section 59 thereto and the general provisions of the law, the licence granted and issued to the Respondent was its private document. He refers to Section 48 which defines the Respondent as a person who is qualified to be granted and issued a licence as per Section 59. Relying on the definitions of ‘Licence’ and ‘Certificate’ as defined in The New Lexicon Webster’s Dictionary of English language, Deluxe Encyclopaedia Edition, 1990 in relation to Section 59, Counsel contends that the licence issued to the Respondent as in the Exhibit 1, is a personal and private document of the Respondent. Likewise Exhibit 2, the certificate of revalidation, Counsel contends, is also a private document. Counsel argues that, even though these documents emanate from a public authority, once issued, they became the private documents of the Respondent. Since they also emanated from the custody of the Respondent, they needed no certification. He therefore submits that photocopies of private documents can be used in affidavits and were appropriately exhibited to establish their existence. For the proposition that not all documents emanating from public bodies/establishments are public documents, Counsel relies on Abuul V. Benue State University (supra) @ 76; & Shylon V. University of Ibadan (2007) 1 NWLR (Pt. 1014) 1.
Learned counsel further submits that, independent of Exhibits 1 & 2, Exhibits 3, 4, 5 and 6 establish the interest of the Respondent in the area covered by 1100EL. Exhibits 3 & 4 are receipts of payment for service fees in respect of 1100EL and renewal, and these are buttressed by paragraphs 8 & 9 of the affidavit of Uche Ezealor. Counsel submits that within the con of these Exhibits the lower Court was right to reach the conclusion of the Applicants’ right and interest in 1100EL, the Licence. Exhibit 5 is a letter from the Ministry of Mines & Steel Development to the Respondent which confirmed that the Respondent’s Licence 11000E is valid and extant. In answer to the rhetorical question posed by it whether, having considered these materials placed by the Respondent, and having regard to the Minerals & Mining Act, 2007, it was appropriate for the lower court to have made the order to protect the deposits and interest of the Respondent, Counsel relies on Sections 6 (i) (e) (g) & 61 (4) to submit that, once the lower Court convinced itself of the existence of the Exploration Licence 1100EL in favour of the Respondent, it had a duty to grant the order of interlocutory injunction to protect the mineral deposits and interest of the Respondent.
Before resolving this issue, it is pertinent to point out here that I have, earlier on in this Judgment, discountenanced any arguments relating to other materials/exhibits before the Court below, which could have established the Respondent’s legal right but which were not relied upon by the trial Court in arriving at its decision. Thus, even though some of these arguments also surfaced in the Respondent’s arguments under his issue (1), they stand discountenanced. I do so hold.
On the first part of this issue, the facts speak for themselves. It is evident from pages 84 – 85 of the printed Record of Appeal that the Appellants challenged the admissibility of the Exhibits 1 & 2 annexed to the Respondent’s affidavit in support of its motion, (amongst other exhibits), on the ground that they are photocopies of public documents that ought to have been certified as true copies before the lower Court could use them. In its response, (contained at page 94 of the Record), the Respondent contended that they were its private documents received from a public institution and so, did not qualify as public documents. It is observed that whereas the learned trial Judge reviewed these submissions at pages 165 – 166 of the printed Record, it failed to resolve the issue raised one way or the other before proceeding to make its findings thereon at page 169 of the Record.
The law is well settled, and has oft been stated by the appellate courts, that it is the duty of every court to pronounce on every issue properly placed before it for consideration and determination before arriving at a decision. Where it has failed to do so, it leads to a miscarriage of justice, in addition to breaching the right of the Appellants to a fair hearing. See the decisions in Ovunwo V. Woko (2011) 5 SCNJ 124; Federal College of Education V. Pusmut (supra); Dawodu V. National Population Commission (2000) WRN 116 @ 118. This point, concerning a court’s bounden duty to pronounce on every issue raised before it, is fundamental to resolving the instant questions raised in this Appeal and is visibly sustainable in view of the decision of the Supreme Court in Brawal Shipping (Nig.) Ltd. V. Onwadike Co. Ltd (2000) 5 SCNJ 508, wherein Uwaifo, JSC, held as follows:
“It is no longer in doubt that this court demands of, and admonishes the lower courts to pronounce, as a general rule, on all issues properly placed before them for determination, in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal.”
See also Katto V. C.B.N. (1991) 9 NWLR (Pt. 214) 126; Okonji V. Njokanma (1991) 7 NWLR (pt. 202) 131; Atanda V. Ajani (1989) 3 NWLR (Pt. 111) 511; Olobue V. Nnabia (1972) 6 SC 27; Oyediran V. Anise (1970 1 ANLR 313 @ 317. A deliberate failure to do so has been characterized as amounting to a failure to perform a statutory duty.
Since the printed Record of Appeal bears out the complaint of the Appellants that the lower Court failed in its duty to pronounce on the issue raised of the admissibility or otherwise of the Exhibits 1 & 2 before it, I do hereby find that, in failing to address the issue raised by the Appellants on the admissibility of the said documents before it made its findings, the lower Court failed in its duty, and this has thereby occasioned a miscarriage of justice. This failure on the part of the court below has, in addition, deprived this Court of the benefit of its opinion on the issue of the admissibility of the documents. The second aspect of this issue is, whether the lower Court was therefore wrong when it used the Exhibits 1 & 2 to grant the order of injunction sought. The law is that documents may be proved by primary evidence except in the cases mentioned in the Evidence Act, 2011, particularly in Sections 89 and 90 thereof. Primary evidence means either that (i) the document itself is produced before the court, (ii) any one of the documents which was executed in several parts, (iii) its counterparts where each has been executed by one or some of the parties and copies produced via one uniform process such as printing, computer or other electronic or mechanical process, etc.
Whereas Secondary evidence includes (i) copies made from the original by mechanical or electronic processes which in themselves ensure the accuracy of the copy and copies compared with such copies; etc. See Sections 85-88 of the Evidence Act. By these provisions, it can be safely said that licences and certificates issued to individuals by public authorities may be proved by tendering the actual originals of these documents, being primary evidence. Where, however, the complication arises, (as in this case), is: where a party tenders a photocopy of such documents which, admittedly, were issued to him by a public authority. In that circumstance, can such a photocopy be said to be primary evidence of the document as required by the law as set out in Sections 85 and 88? Furthermore, (and this is the crux of this issue), are the licence and certificate of revalidation issued by the Ministry of Mining and Solid Minerals to the Respondent, (Exhibits 1 & 2), public documents for which certification is undeniably required, or private documents? The Evidence Act has made clear provisions to guide parties and the courts in this matter and for ease of reference, the contents of Sections 102 and 103 of the Evidence Act are set out hereunder:
“102. The following documents are public documents –
(a) Documents forming the official acts or records of the official acts of-
(i) The sovereign authority,
(ii) Official bodies and tribunals, or
(iii) Public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and
(b) Public records kept in Nigeria of private documents.
103. All documents other than public documents are private documents.”
I am of the considered view that, going by the above provisions, the licence and certificate of revalidation issued to the Respondent by the said Ministry, an official body/authority, to the Respondent, (Exhibits 1 & 2), are public documents. That being the case, the law is since settled that the contents of a document can be proved in a proceeding by tendering the original document, or where the original is unavailable, by a certified copy of the said original as secondary evidence of the contents of the said original. Section 104 (1) & (2) (formerly 111(i) of the Evidence Act provides thus:
(1) “Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.
(2) The certificate mentioned in subsection (1) of this section shall be dated and subscribed by such officer with his name and official title, and shall be sealed whenever such officer is authorised by law to make use of a seal, and such copies so certified shall be called certified Copies.”
It is clear from these provisions that the only acceptable secondary evidence of a public document is a certified copy of the document. These provisions have put the position precisely, concisely and beyond speculation or conjecture by the words “but no other kind of secondary evidence is admissible” in Section 90(1) (c) (formerly 97 (2) (c) of the Act. Niki Tobi, JSC, in Araka V. Egbue (2003) 7 SCNJ 114 stated the rationale behind this provision lucidly at page 126 of the Report as follows:
“One main objective behind Section 97 (2) (c) of the Evidence Act is to ensure the authenticity of the document tendered vis-a-vis the original. This is in addition to the need for the preservation of public documents. In this age of sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the con of Section 97 (2) (c) could be tutored and therefore not authentic. Photo tricks could be applied in the process of copying the original document with the result that the copy, which is secondary evidence, does not completely and totally reflect the original and therefore not a carbon copy of the original. The court has not the eyes of an eagle to detect such tricks.”
Exhibits 1 & 2 are undoubtedly not in conformity and lack all the requirements stipulated by the relevant provisions of the Evidence Act. They are evidently photocopies of originals which are not certified. This non-certification of these public documents renders them inadmissible and same cannot be used by the court. See the decisions in Goodwill & Trust Investment Ltd V. Witt & Bush Ltd (2011) 3 SCNJ 241; Federal Airports Authority of Nigeria (FAAN) V. Wamal Express Services (2011) 1 SCNJ 133; Agagu V. Dawodu (1990) 9 NWLR (Pt. 160) 56.
It is therefore difficult to see how the Court below acted on the said documents, even after its attention had been drawn to this fact by learned Counsel for the Appellant. Indeed, the lower Court simply ignored the submissions thereon and failed to resolve the issue one way or the other before it proceeded to act on the documents to grant the order of injunction sought.
A court of law is expected in all proceedings before it to admit and act only on legal evidence. Accordingly where a trial Court inadvertently admits evidence which is absolutely inadmissible, it has a duty generally not to act upon it but rather to discountenance it. So too, if a document is unlawfully received in evidence in the trial Court, an appellate court has inherent jurisdiction to exclude and discountenance the document. See the decision in I.B.W.A. V. Imano Ltd (2001) 3 SCNJ 160.
Thus, Exhibits 1 & 2, which are the cynosure of this Appeal, not being certified within the meaning of Section 111, (now 104 (1) & (2)) of the Evidence Act, should properly have been disregarded by the lower Court. It is therefore incumbent on this Court, pursuant to our powers in Section 15 of the Court of Appeal Act, 2004, to exclude and discountenance the said exhibits as inadmissible evidence. The documents are therefore hereby discountenanced.
It is thus for all these reasons that I hold that the lower court acted in error when, without resolving the issue of the admissibility or otherwise of the Exhibits 1 & 2, it relied on same to find that the Respondent had proved the existence of a legal right worthy of protection by an order of injunction. It is further my finding that the said Exhibits I & 2 are inadmissible being uncertified photocopies of public documents. I therefore resolve issue one in favour of the Appellant.
In respect of issue two, which is predicated on Grounds 3, 4, 5 & 6 of the Grounds of Appeal, learned Counsel relied on the decision of the Supreme Court in Oduntan V. General Oil Ltd (1995) 4 SCNJ 145; & Uket V. Okpa (2005) 8 NWLR (Pt.983) 464 for the principles to follow and issues to consider in the grant or refusal of an order of interlocutory injunction. Counsel refers to its written address before the lower Court at pages 85 – 87 of the Record where he argued that the Respondent was unable to show that the balance of convenience was in its favour, that damages can adequately compensate the Respondent in the event that the application is refused and it succeeds in its final claim, and that the Respondent was guilty of delay in bringing the application, since the activity sought to be restrained had been on-going, to the knowledge of the Respondent, for more than one year before the application was brought. Yet, the trial Court having reviewed these submissions of Counsel and issues raised therein, failed to resolve same one way or the other before going on to grant the order sought. Learned Counsel thus submits that where, as in this case, the lower Court failed to consider the relevant issues in the determination of the application for injunction, the appellate court will, in the exercise of its powers, consider the issues. He therefore urged the Court to go ahead and do so.
On the issue of the balance of convenience, learned Counsel for the Appellants submits that the Respondent was not able to show that the balance of convenience in the application was in its favour, and that damages cannot adequately compensate it for whatever injury it may suffer if the application was refused, nor that the Appellants would not be able to pay any damages that would be so awarded. Instead, the lower Court actually found that the Respondent can be compensated in damages in view of the depositions in its affidavit, and so refused prayer two on the motion paper. Counsel also contends that, since the Respondent claims N900, 000,000.00 as damages in the substantive suit, this confirms that its remedies are found in monetary damages. Reliance is placed on Orji V. Zaria Industries Ltd (19921 1 NWLR (Pt. 216) 124; & American Cyanamid Co. V. Ethicon Ltd (1975) AC 395. Learned Counsel thus urged the Court to hold that in view of the evidence and the express finding of the lower Court that damages could adequately compensate it, the Respondent was not entitled to the order of injunction granted to it.
It is further submitted by Counsel that the conduct of the Respondent in making this application was reprehensible in that it was guilty of undue delay in bringing it. Going by the affidavit evidence of the Appellants, particularly paragraphs 6 and 10 (a) thereof, the Appellants averred that the acts complained of had been on-going for a period of more than one year before filing the application and with no form of complain from the Respondent. This issue was also raised and canvassed in the written address of the Appellants. Nonetheless, the Respondent neither countered these facts in its counter affidavit nor did it respond to the arguments on this in its written address, and so it is deemed admitted. Counsel therefore contends that the admitted delay in bringing the application for an injunction defeats the application and the lower Court should not have granted it. Reliance is placed on Nika Fishing Co. Ltd V. Lavina Corporation (2008) 15 NWLR (Pt. 1114) 509; Anosike Building & Comm. Co. v. F.C.D.A. (1994) 8 NWLR (Pt. 363) 421; & Kotoye V. C.B.N. (1989) 1 NWLR (Pt. 98) 419. Counsel urged the Court to hold that the application is defeated by the fact of delay by the Respondent who stood by and watched while all the activities on site went on for over one year without complaining or coming to court. He therefore urged the Court to allow the Appeal and set aside the order of injunction on the grounds that damages would adequately compensate the Respondent; that the balance of convenience weighed more in favour of refusing the application; and the delay in bringing the application defeated it.
It is noted that The Respondent’s response in regard to Grounds 3 & 6 was made under his issue (2), which issue, as well as submissions, have been earlier discountenanced by this Court. However, the Respondent’s issue (3) is akin to the Appellants’ issue (2). Learned Counsel therein submits that the Appellants offered Exhibit MD1, an agreement for “sale & Purchase of Minerals/Lease of Machineries & Hiring of Expatriate Staff Agreement” with ‘Zumunci Multi-Purpose Co-operative Society Ltd’ as the sole justification for carrying out extensive mining activities and evacuation of Minerals from the area covered by the Lease. No further evidence is disclosed to show that the said ‘Zumunci Multi-Purpose Co-operative Society Ltd’ has any interest that is in consonance with Section 46 of the Act. Since Sections 59 (2) & 93 exclude any other interest in an existing Exploration Licence Area, the injunction granted by the lower Court should be held as appropriate.
On where the balance of convenience lies, learned Counsel submits that the Appellants have admitted to carrying out mining operations and yet have not shown any legal right or interest, thereby admitting to impunity. Thus Counsel contends that, between the Appellants’ impunity in un-authorized mining and evacuation of the minerals, the Respondent’s rights inured in the Exploration Licence, and Section 61 (4) of the Act, the balance of convenience favours the Respondent in the preservation of the mineral deposits by the interlocutory injunction granted by the lower Court.
On the allegation of delay made against the Respondent in bringing the application, Counsel cites paragraphs 16, 17, 18 & 19 of the affidavit of Uche Ezealor, as well as Exhibit 5 & 6 to disprove same. He submits that the issue of delay goes to no issue.
On the issue of damages being adequate compensation, Mr. Amechi, learned Counsel for the Respondent, submits that since the Minerals & Mining Act does not allow for the removal of any minerals from the Exploration Area other than as provided for under Section 60 (e) & (g), the argument of compensation for the Respondent by the Appellants cannot be sustained. Thus the lower Court had a duty to issue the injunction to give effect to the preservation of the minerals. In addition, Counsel contends that the reluctance of the lower Court to grant the order to seal the warehouse as urged on the lower Court in its prayer 2, explaining that compensation may inure or serve as recompense, does not detract from the power of the lower Court to stop further mining and evacuation of minerals by the Appellants, the legality of which is at the root of the substantive suit. Counsel submits that, given the prohibitions contained in the Minerals & Mining Act, 2007, the argument of the Appellants relating to compensation is untenable and inapplicable to this matter.
Furthermore, learned Counsel submits that the claim for N900,000,000.00 relates to the completed acts of the Appellants with respect to the unlawful mining and evacuation that has occurred which must be distinguished from the future interest of the Respondent entitled to the mining Lease in the area covered by the Exploration Licence. He contends that this must be distinguished from a situation where the Respondent is already a holder of a mining Lease, in which case, it would be entitled to compensation. Counsel argues that compensation is however not applicable in the instant case because at the exploration stage, the Minerals which are still deposits in the ground can only be protected and preserved for the Exploration Licence holder. (Reference is made to Section 60 (e) & (g) of the Act respectively). He submits that this is what was done by the lower Court by the grant of the order of injunction to prevent further mining and evacuation of the deposits, pending the determination of the substantive suit.
It must be stated, ab initio, that the law is settled that, except under some stated conditions, the Court of Appeal will not interfere with a discretion or finding of fact by a trial court. But where the discretion of the trial court was not judicially or judiciously exercised or where the finding of fact was perverse, the Court of Appeal will definitely interfere. See Makinde V. Akinwale (2000) 2 NWLR (Pt. 645) 435; Chikere V. Okegba (2000) 12 NWLR (Pt. 681) 274; Acme Builders Ltd V. K.S.W.B. (1999) 2 NWLR (Pt. 590) 288; Uzochi V. Onyemwe (1999) 1 NWLR (Pt. 587) 339. This Court will not interfere in the exercise of the discretion of a lower court unless the exercise of such discretion is “manifestly wrong, arbitrary, reckless or injudicious”. See per Nnamani, JSC in University of Lagos (1985) 7 NWLR 156 @ 163. See also In Re Adewunmi (1988) 13 NWLR (Pt. 83) 483; Lauwers Import-Export V. Jozebson Ltd. (1988) 13 NWLR (Pt. 88) 430; Nwabueze V. Nwosu (1988) 4 NWLR (Pt. 88) 257-262.
In the instant case, following my findings under issue one that the lower Court was in error when it failed to resolve the issue raised as to the admissibility or otherwise of Exhibits 1 & 2, and yet it went on to rely on same to find that the Respondent had a legal right worthy of protection by the grant of an injunction, I am of the view that the exercise of discretion by the trial Court was injudicious. It was also perverse as it was given adverse to the facts before it as disclosed in the affidavits. For that reason, I must interfere in the plainly wrongful exercise of discretion by the trial Court. Furthermore, in instances such as this, the Court of Appeal is empowered under Section 15 of the Court of Appeal Act to generally have full jurisdiction over the whole proceedings as if the proceedings have been instituted in the Court of Appeal as a court of first instance and may hear the case in whole or in part.
The principles for the grant of an interlocutory injunction have been well stated and restated in decisions of the highest Court of our land time and again, enough to make them now a matter of judicial recognition. An interlocutory injunction is procedurally between an interim injunction and a perpetual injunction, and it is granted pending the determination of the case. The locus classicus is Kotoye V. Central Bank of Nigeria (1989) 1 NWLR (Pt. 98) 419. In that case, the Supreme Court held as follows:
(a) “That the applicant must show that there is a serious question to be tried, i.e., that the applicant has a real possibility, not a probability of success at the trial, notwithstanding the defendant’s technical defence (if any), (Obey Memorial Specialist Hospital V. A-G Federation (1987) 3 NWLR (Pt. 50) 325 followed).
(b) That the applicant must show that the balance of convenience is on his side; that is that more justice will result in granting the application than in refusing it, Missini V. Balogun (1958) 1 ALL NLR 318 referred to.
(c) That the applicant must show that damages cannot be an adequate compensation for his damage or injury, if he succeeds at the end of the day.
(d) That the applicant must show that his conduct is not reprehensible for example that he is not guilty of any delay.
(e) No order for an interlocutory injunction should be made on notice unless the application gives a satisfactory undertaking as to damages save in recognised exceptions.
(f) Where a court of first instance fails to extract an undertaking as to damages, an appellate court ought normally to discharge the order of injunction on appeal.”
See also Akinpelu V. Adegbore (2008) 4 SCNJ 220; 7- Up Bottling Co. Ltd V. Abiola & Sons (Nig) (1995) 3 NWLR (Pt. 383) 257; Ogbonnaya V. Adapalm (Nig) Ltd (1993) 5 NWLR (Pt. 292) 147; Sotuminu V. Ocean Steamship (Nig) Ltd (1992) 5 NWLR (pt. 293) 1; Akibu V. Oduntan (1991) 2 NWLR (Pt. 171) 1; Globe Fishing In. Ltd V. Coker (1990) 7 NWLR (Pt. 162).
One other factor which is of importance to be considered for the grant of an interlocutory injunction is the preservation of the res. It is the province of the law that the res should not be destroyed or annihilated before the judgment of the court. The res in this case is the mining site at Kampani Zurak in Wase L.G.A. of Plateau State. The order of injunction is available to restrain a defendant from the repetition or the continuance of the wrongful act or breach of contract complained of. See the cases of Adenuga V. Odumeru (2001) 1 SCNJ 34; Union Beverages Ltd. V. Pepsicola International Ltd (1994) 3 NWLR 1. This is with the object of keeping matters in status quo until the question in issue between the parties is determined. See Okafor V. Nnaife (1987) 4 NWLR 613; Ojukwu V. Lagos State Government (1985) 3 NWLR 39.
It however is of paramount importance in applications of this nature that an applicant, seeking to stop the actions of an opposing party by the injunctive powers of the court, must show that he has sufficient interest in the reliefs sought. Put in other words, before the Respondent can be entitled to an order of injunction against the Appellants, it must be established that it has a legal right capable of being protected by such an order. See Akerele V. Awolowo (1962) WNLR 220 @ 224.
The main purpose of an interlocutory injunction is thus to protect a plaintiff against injury by a violation of his right for which he cannot be adequately compensated in damages recoverable in the action if the case were resolved in his favour, at the trial. See the case Dyktrade Ltd V. Omnia Nig Ltd (2000) 7 SCNJ 90. It is therefore fundamental and indispensable that the Respondent must establish such a right before an order of interlocutory injunction may be made in its favour.
It seems clear to me that the Respondent, contrary to the finding of the lower Court, failed to disclose that it had any legal right to protect against the Appellants in Court. Therefore, I adopt all my findings under issue one above where I have found as a fact that the Respondent failed to establish before the lower Court that it has any legal right whatsoever to protect since Exhibits 1 & 2 relied upon by the Court below, the purported licence and certificate, were legally inadmissible.
In addition to the absence of a legal right to protect, it is the law that interlocutory injunctions are only granted in cases of urgency. Thus, an applicant who is guilty of delay thereby demonstrates the absence of any urgency requiring prompt relief. See Udeozo V. Ochoma (2006) 2 SCNJ 278. In this case, no urgency was disclosed by the Respondent to enable this Court exercise its discretion in its favour. Instead, from the affidavit evidence of the Appellants, in conjunction with that of the Respondent, the Respondent’s behaviour can rightly be described as lackadaisical, laid-back and apathetical. This is because the Respondent leisurely waited in the wings and watched the Appellants mine the land, gleefully counting the alleged tons and tons of minerals removed from the land, at the rate of twelve (12) trucks a day, for over one year before approaching the lower court for relief, seeking an order of injunction and the whopping sum of Nine Hundred Million Naira (N900, 000, 000.00) in damages for the minerals allegedly removed from the site. The Respondent was manifestly guilty of delay, and it is trite that delay defeats equity, particularly where the exercise of the discretion of a court is sought. It is no wonder that the lower Court refused the second prayer of the Respondent to seal the warehouse where the minerals were allegedly stored, since it is evident that the Respondent’s losses, if proved, can be compensated in damages.
Having taken a full and careful look at all the facts of this case as disclosed in the parties’ affidavits and the legally admissible evidence before the trial Court, I take the firm view that the trial Court’s discretion was wrongly exercised and it is liable to be set aside in the interest of justice. Issue two is resolved in favour of the Appellants.
In respect of the third and final issue, Mr. Ugwuala, learned Counsel for the Appellants, submits that the learned trial Court was wrong when it made the order of injunction without first resolving the issue of proper parties raised before it by the Appellants. He refers to paragraphs 5-11 & 16 of the Appellants’ counter affidavit before the trial Court where they had disclosed that they were, at best, merely agents of the Company carrying out the mining activities complained of, i.e. Kampani Zurak Community, as they were hired by the latter to carry out the said jobs. In furtherance of this, Kampani Zurak, applied to be joined as a party to the matter two weeks before the Ruling of the lower Court was delivered. The said Kampani Zurak Community deposed to facts confirming this in the several affidavits in support of its motion for joinder. It also expressly admitted to being the party carrying out the mining activities complained of and not the Appellants. That being the case, Counsel submits that the Appellants were not the proper parties against whom the order of injunction ought to have been made, but Kampani Zurak Community, who unfortunately, were not parties at the time. Learned Counsel therefore submits that the lower Court ought to have considered all these facts placed before it in coming to its decision. Further to this, Counsel contends that even the 2nd Appellant as the Managing Director of the 1st Appellant Company, was thus also an agent of a disclosed principal, the order of injunction ought not to have been made against him. Reliance was placed on a number of authorities which shall be considered as we go along. He therefore urged the Court to allow the Appeal on this issue also and hold that the Appellants were not the proper parties against whom the order of injunction should have been made.
In conclusion, Mr. Ugwuala urged the Court to allow the Appeal, set aside the orders of injunction made by the trial Court and in its place, enter an order dismissing the Respondent’s motion for injunction,
In its Response, Mr. Amechi, learned Counsel for the Respondent, submits that the Appellants never revealed to the lower Court the existence of a contrary title to the Respondent’s Licence 1100EL, which formed the basis of their carrying out mining operations and the depletion of the minerals, He submits that it is of no moment that the Appellants claim to be related to any other person of no revealed legal right or interest. On the other hand, at the time the application was argued and reserved for ruling, the Appellants were the only defendants presented to the lower Court and the facts place the mischief as their responsibility. Reliance is placed on Nwoke V. Okoye (2010) 41 NSSQR 1 @ 46; & Ayorinde v. Airat (2000) 75 LRCN 206 @ 235. Counsel therefore submits that the Appellants have not made a case to warrant tampering with the discretion of the trial Court in the grant of the interlocutory injunction.
Indeed, Exhibit MD1 annexed to the Appellants’ counter affidavit is an agreement which alleged that the Appellants’ presence on the land was as agents of a disclosed principal. Since this is also a crucial issue in the determination of the Appeal, I will reproduce relevant portions of the agreement hereunder:
“SALE AND PURCHASE OF MINERALS/LEASE OF MECHINARIES AND HIRING OF EXPATRIATE STAFF AGREEMENT
THIS AGREEMENT entered into this 10th day of July 2008 by and between SOLID UNIT NIGERIA LTD … (hereinafter referred to as the “Company”)…
AND
ZUMUNCT MULTI-PURPOSE CO-OPERATIVE SOCIETY LTD … (hereinafter referred to as the “Community”)…
NOW THIS AGREEMENT WITNESS AS FOLLOWS.
1. That the Community shall lease equipment and expatriate workers from the company at a fee and price to be determined by the Community and the Company from time to time depending on the prevailing rate at the point in time.
2. That the Community shall sell all the mined products to the Company at a price to be determined by both the Community and the Company depending on the prevailing rate at the point in time.
3…
IN WITNESS WHEREOF the parties herein have executed this agreement in the manner herein the day and year above written.
THE COMMON SEAL OF within name ZUMUNCI MULTI-PURPOSE COOPERATIVE SOCIETY LTD was affixed hereunto in the presence of
(Signed & Sealed) (signed & Sealed)
Chairman Secretary
THE COMMON SEAL OF within named SOLID UNIT NIG. LTD was affixed hereinto in the presence of
(Signed & Sealed) (Signed & Sealed)
Managing Director Secretary”
At pages 112-117 is a motion on notice filed on 15th June, 2010 by three named persons, for themselves and on behalf of Zumunci Multi-purpose Co-operative Society Ltd, as Applicants, against the Respondent/Plaintiff and the Appellants/Defendants as Respondents, seeking:
“a) An order joining the Applicants as co-Defendants in suit No FHC/J/CS/21/2010.”
In support of the motion is a 5 paragraph affidavit wherein the Applicants state inter alia thus:
“3 a) That the Defendants/Respondents are working for the Applicants on their land at Kampani Zurak, Was L.G.A. which land the Plaintiff claims it is covered by EL100 belonging to it.
b) That the Plaintiff/Respondent sued the Defendants/Respondents before this Honourable Court claiming among others that it has exploration licence (EL100) covering the land.
c) That the Plaintiff/Respondent is also challenging the Defendants/Respondents over the work the Defendants/Respondents are doing for the Applicants on the land at Kampani Zurak Wase L.G.A. which the Plaintiff/Respondent claim to have EL100 covering it,
d) hat the land in which the Plaintiff/Applicant (sic) is seeking reliefs contained in the Plaintiff/Applicant (sic) statement of claim belongs to the Applicants, the Plaintiff/Respondent have no interest whatsoever on the land.
e) That the subject matter of litigation between the Plaintiff/Respondent and the Defendants/Respondents belongs to the Applicants
f) That the Applicants through the 4th Applicant engaged the services of the Defendants/Respondents to work and mine on their behalf on their land which the Plaintiff/Respondent claims to have EL1100 covering it.
g) That the Applicants intend to defend and counterclaim against the Plaintiff/Respondent in suit No. FHC/J/CS/21/2010.”
The Applicants accompanied their motion with a “Written Address” at pages 115-117 of the Record. Upon being served these processes, the Respondent herein promptly filed its counter affidavit to this motion on 26-06-2010 as well as its “Written Address” and same is contained at pages 118-123 of the Record, to which the Applicants filed a “Further & Better Affidavit” and “Written Address” in support at pages 124-142 of the Record. Wherein the Respondent/Plaintiff again filed a “Further Written Address” in reply to the issues raised in the Further and Better Affidavit at pages 142-144, which provoked a “Reply to Further Reply” by the Applicants seeking to be joined at pages 145-146 of the Record.
On the 30-06-2010, the matter came up before the lower Court for ruling in the application for the grant of an interlocutory injunction against the Appellants. In the interim, the above-mentioned motion for joinder had been filed, precisely two weeks before the date slated for the ruling. It is the law that it is the duty of a court to take judicial notice of all processes filed in a matter before it. See Nwora V. Nwabueze (2011) 12 SCNJ 67. Thus, the very contentious nature of the application for joinder should have been a red flag to the Court below on the necessity to settle the issue of the proper parties before it. However, surprisingly, when the lower Court’s attention was drawn to the application by Counsel for the Applicants, who was in Court, the Court below declined to hear it. (See pages 152-153 of the Record).
A necessary party to a proceeding is a party whose presence and participation in the proceeding is necessary or essential for the effective and complete determination of the claim before the court See In Re-Mogaji (1986) 1 NWLR (Pt. 19) 579.
The law requires that a person who has an interest in any case, and who is aware of a pending action in a court of law involving this same interest should at the earliest opportunity seek to be joined as a party in the suit. A party cannot fold its arms and wait, leaving other parties to fight its battles for him as the suit is in progress, only to seek to grab an advantage at the end of the proceedings at the trial court.
Furthermore, an application for joinder may be entertained and granted to avoid a multiplicity of actions or to eliminate the possibility of two courts of coordinate jurisdiction, giving different and conflicting decisions in two cases that are substantially the same. See the cases of Bank of Ireland V. Union Bank (1998) 7 SCNJ 385; Kigo (Nig.) Ltd V Holman Bros (Nig.) Ltd (1990) NSCC 204 @ 211. Thus, a party may be joined as a person interested in a suit very early or midstream, depending on when he became aware of the pending proceedings. See Re: Arowolo (1993) 2 NWLR (Pt. 275) 317.
The reason for making a person a party to an action is that he should be bound by the result of the action. Consequently, the question to be settled in the action must be one which cannot be effectually and completely settled unless he is a party. Joinder is necessary to ensure that proper parties are before the court for determining the point in issue. An application to join may be made at any time. See Panalpina World Transport (Nig.) Ltd V JB Olandeen International (2010) 12 SCNJ 494; Green V. Green (1987) 3 NWLR (Pt. 61) 480; Peenok Investment Ltd V. Hotel presidential Ltd (1932) 12 SC 1; Lajumoke V. Doherty (1959) NMLR 281.
However, in a situation where a court is being called upon to restrain the actions of a parties before it who claim they were agents of a disclosed principal, and the disclosed principal himself owns up to being the force behind the action now being sought to be restrained, then it becomes, not only imperative but prudent and necessary to hear and determine the motion for joinder before proceeding further.
From the affidavit of the Applicants seeking to be joined, it is apparent that they claim ownership of the land being mined by the Appellants, as well as claiming that the Appellants were only hired by them to carry out these works in line with the Agreement, Exhibit MD1. At this point it should have been more sensible, perceptible and prudent for the learned trial Judge to have heard the Applicants on their motion. This is because in the face of the claim of ownership by the Applicants, it had become imperative and crucial to settle the issue of the proper parties before the trial Court before it proceeded further, as it is adverse, unwarranted and inequitable to slam a restraining order on only persons who were mere agents of a disclosed principal. This is even more so since an agent acting on behalf of a known and disclosed principal incurs no personal liability. See the decision in the case of Osigwe V. PSPLS Management Consortium Ltd (2009) 1 SCNJ 1.
The Applicants for joinder before the trial Court may or may not have a right to be heard. Nevertheless, having filed a motion before the lower Court disclosing their interest, the lower Court was duty bound to have disposed of that vital issue before going on to make the order of injunction restraining the Appellants. I therefore find that the issue of who were the proper parties should have been settled before, or at the very least, simultaneously with the application for the order of injunction sought. Consequently, I also resolve this third issue in favour of the Appellants.
In the result, the grant of an interlocutory injunction in favour of the Respondent cannot be proper or right in law as the Respondent woefully failed to disclose what legal right it possesses that was worthy of protection by this injunctive relief. Hence, I find the Appeal pregnant with merit. It succeeds and is allowed. Consequently, the motion seeking an interlocutory injunction restraining the Appellants from mining the land in question at Kampani Zurak in Wase Local Government Area of Plateau State, pending the determination of the substantive suit before the trial Federal Court sitting in Jos, is hereby refused and accordingly dismissed. The order of injunction made on the 30-06-2010 by the Federal High Court sitting in Jos is hereby set aside. Both parties are ordered to bear their own costs.
IBRAHIM SHATA BDLIYA, J.C.A.: I have had the privilege of reading before now, the lead judgment just delivered by my learned brother, Jummai Hannatu Sankey, J.C.A. The issues which called for determination in the appeal have been adequately considered and resolved appropriately. I have nothing useful to add. I adopt it as mine, I, too, do hereby allow the appeal. The order of injunction made on the 30th of June, 2010 by the trial court sitting in Jos, is hereby set aside. I abide by the order as to costs contained therein.
PETER OLABISI IGE, J.C.A: I was privileged to have read in advance the Judgment just delivered by my Lord Sankey, J.C.A. I entirely agree with the reasoning and conclusion reached by My Lord, The appeal succeeds and it is allowed, I abide with all the orders made in the leading Judgment including the order that parties shall bear their own costs.
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): The Respondent in this Appeal had commenced an action before the trial Court against the Appellants via a Writ of Summons and Statement of Claim filed on the 14th May, 2010 seeking:
i. “A Declaration that the Defendants have no right whatsoever to enter into the land covered by Exploration Licence No. 1100EL at Kampani Zurak, Wase Local Government Area of Plateau State, and carry out any mining activity whatsoever same being vested in the plaintiff under the Nigerian Minerals and Mining Act, 2007.
ii. Order of perpetual Injunction, restraining the Defendants by themselves, Agents or Privies from further entering into the area covered by the Plaintiff’s Exploration Licence, No. 1100EL situate and located at Kampani Zurak, Wase Local Government Area of Plateau.
iii. The sum of N900, 000, 000,00 (Nine Hundred Million Naira Only) as damages with respect to the unlawfully mining and evacuation of minerals by the Defendants which has occurred from the mining area covered by the Plaintiff’s Exploration Licence, No 1100EL.
iv. The cost of this action.”
Simultaneously, it filed a motion on notice seeking an order of interlocutory injunction against the Appellants, the lower Court having already made interim orders of injunction pursuant to a motion exparte. Therein, Respondent sought the following reliefs:
1. “For interlocutory injunction restraining the Defendants either by themselves, their agents, privies or any other person whatsoever acting on their behalf from entering into the area covered by Exploration License No. 1100EL which is issued to the Plaintiff by the Ministry of Mines and Steel Development (at Kampani Zurak, Wase Local Government Area) and carrying out any mining or other related activity whatsoever and/or evacuating any mineral from the said EL area, pending the determination of the substantive suit now pending before this Honourable Court.
2. Order sealing the Warehouse of the Defendants situate at Dengi, behind Royal House stocked Lead and Zinc brought from the site Kampani Zurak, Wase Local Government Area pending the determination of this suit.”
Both the Respondent and the Appellants filed their affidavits and counter affidavit respectively as well as their written addresses, wherein their arguments thereto where marshaled and canvassed. Ruling on the application on the 30th June, 2010, the learned trial Judge, Bello, J., granted the application in part in these terms (at pages 169-170 of the Record):
“I have examined carefully the affidavits (sic) evidence of both the plaintiff and the defendant and the exhibits attached, and also considered the erudite submissions of both counsel as could be seen above. Again at the beginning of this ruling I have also considered the facts of this case as disclosed by the plaintiff’s pleadings. In the circumstances of this case, I am of the view that the plaintiff has shown the existence of a legal through his exhibit 1 and 2 that is worthy of protection by an injunction. Consequently, prayer one of the plaintiff/applicant is granted pending the determination of the substantive suit, prayer 2 is not granted because the plaintiff has shown in the affidavits in support of this application that it has kept counts (sic) of the minerals that the defendants carted away from its Exploration Area. That could be compensated by damages if proved.”
(Underlining supplied for emphasis)
Dissatisfied by this Ruling, the Appellants filed an Appeal against same via their Notice of Appeal filed on 16/07/2010 wherein they complained on seven (7) Grounds. The Grounds of Appeal bereft of their particulars, state as follows:-
“Ground one:
The learned trial Court erred in law and occasioned a miscarriage of justice when it held thus:
“In the circumstances of this case, I am of the view that the plaintiff has shown the existence of a legal right through his EXHIBIT 1 and 2 (sic) that is worthy of protection by an injunction. Consequently, prayer one of the Plaintiff/Applicant is granted pending the determination of the substantive suit”
Ground Two:
The learned trial court erred in law, and thus occasioned a miscarriage of justice, when without first resolving the issue of the admissibility of EXHIBITS 1 and 2 to the Respondent’s motion, it relied on the said EXHIBITS to grant the interlocutory injunction sought by it.
Ground Three:
The learned trial Judge erred in law and, thus occasioned a miscarriage of justice, when, without resolving the question of balance of convenience, it granted the Respondent the order of interlocutory injunction sought by it.
Ground Four:
The learned trial Court erred in law and thus occasioned a miscarriage of justice when it granted the Respondent the order of interlocutory injunction it sought, when the Respondent did not prove that if it were to succeed at the trial in establishing its right to a permanent injunction, it would not be adequately compensated in damages.
Ground Five:
The learned trial Court erred in law and thus occasioned a miscarriage of justice, when, without resolving the issue of delay on the part of Respondent in bringing its application for injunction, it granted the Respondent the order of injunction sought.
Ground Six:
The learned trial Court erred in law and thus occasioned a miscarriage of justice when without following the led (sic) down principles for the grant or refusal of interlocutory injunctions, it granted the injunction sought by the Respondent who did not make out a case for the grant of same.
Ground Seven:
The learned trial Court erred in law and occasioned a miscarriage of justice, when it granted (sic) interlocutory injunction against the Appellants who were not proper parties before it, without resolving the question of the propriety or otherwise of their being parties in the matter.
The Appellants thus prayed the Court to allow the Appeal on these grounds, set aside the order of injunction made by the trial Court, and in its place, enter an order dismissing the Respondent’s motion for want of merit.
The Respondent filed a Notice of preliminary objection to the hearing of the Appeal on the 26th August, 2010, the grounds of which are stated thus:
1. The Appeal is incompetent for the reason that no leave was obtained to file same in consonance with the provisions of Section 241 of the Constitution of the Federal Republic of Nigeria, 1999 and Section 15 of the Court of Appeal Act, the Appeal being an interlocutory Appeal.
2. Grounds 1, 2, 3, 4, 5, 6 and 7 of the Appeal are all of law and facts for which leave is required as an interlocutory Appeal, and for the Appeal to be struck out for the reason of the incompetence.
Parties filed their Briefs of argument setting out their arguments in the Appeal. The Appellant’s Brief was filed on the 27-07-10, while the Respondent’s Brief was filed on 26-08-10. Thereafter, the Appellants’ Reply Brief was filed on 07-09-10. On the 6th February, 2013, when the Appeal was called up for hearing, Mr. Komak, learned Counsel for the Respondent, referred the Court to the Notice of preliminary objection and adopted his arguments as set out at pages 3 – 5 of the Respondent’s Brief of argument as his arguments on the objection. He urged the Court to strike out all the Grounds of Appeal for being incompetent, Mr. Ugwuala, learned Counsel for the Appellants, referred to pages 1-3 of his Reply Brief for his arguments on the preliminary objection raised to the hearing of the Appeal. He adopted these arguments in response to the objection and prayed the Court to dismiss same.
In respect of the main Appeal, Mr. Ugwuala adopted and relied on the Appellants’ Brief, as well as the arguments contained at pages 3-5 of the Reply Brief, as his arguments in this Appeal. He urged the Court to allow the Appeal and set aside the Ruling of the Federal High Court. In like vein, Mr. Komak adopted and relied on his arguments as set out at pages 5-18 of the Respondent’s Brief as his arguments in this Appeal. He urged the Court to dismiss the Appeal.
In arguing the preliminary objection to the hearing of the Appeal at pages 3-5 of his Respondent’s Brief of argument, the Respondent contends that the Appellants failed to seek leave to leave to file this interlocutory Appeal. He argues that the Grounds of Appeal relate to mixed facts and law. Specifically, Grounds one and two are attacks against Exhibits 1 and 2 which are in the nature of facts, as well as the collateral facts thereto. Indeed, he contends that all the Seven (7) Grounds are all tied to facts. He relies on Shell Petroleum Dev. Co. of Nigeria Ltd. v Katad Nig. Ltd (2006) 1 NWLR (Pt. 9960) 198; B.A.S.F. Nig. Ltd V Faith Enterprise Ltd (2010) 41 NSQR 381, amongst other authorities, to urge the Court to strike out all the Grounds of Appeal as well as the Appeal itself, for being incompetent.
The Appellants’ response to the objection, as aforesaid is at pages 1-3 of their Reply Brief. They refer to Section 241 (1) (f) (ii) of the 1999 Constitution to submit that the Appellants’ Appeal, being an Appeal against the grant of an injunction by the lower Court, does not need the leave of either the lower Court or of this Court to be competent. The Appellants argue that an Appeal shall lie from the decision of the High Court as of right in any decision where an injunction is granted or refused. Thus, no leave is required to file such an Appeal. He relies on Attamah & 4 others V. The Anglican Bishop of the Niger & 3 others (1999) 12 NWLR (Pt. 533) 6.
Having reviewed all the arguments of both learned Counsel I am of the view that the objection is totally misconceived. Section 241 (1) (f) (ii) of the Constitution expressly provides thus:
“241. (1) An Appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a)…
(b)…
(c)…
(d)…
(e)…
(f) decisions made or given by the Federal High Court or a High Court –
(i)…
(ii) where an injunction or the appointment of a receiver is granted or refused,”
(Underlining supplied for emphasis)
This Constitutional provision speaks for itself and requires no further elucidation. It thus lays to rest both the first and second Grounds of objection. No leave is required where the Appeal is against the grant or the refusal of an order of injunction. I am not unmindful of the fact that the Respondent, in its Notice of Preliminary Objection also relied on Section 15 of the Court of Appeal Act. It is self-evident that Section 15 of the Act, 2004 is inappropriate to this circumstance, and that the Respondent may have intended to refer to Section 14 thereof, which is more relatable to the issue raised in the objection. Indeed, section 14 of the Act provides:
“14. Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that court or of the Court of Appeal, lie to the Court of Appeal;…”
However, it is settled law that the Constitution being the grundnorm of all laws in this Country; it is the plumb line by which all laws must be measured. The Apex Court has itself given weight to the provision of the Constitution in this regard in the case of Attamah & 4 others V. The Anglican Bishop of the Niger & 3 others (supra). Therein, Kutigi, JSC, (as he then was), delivered the lead Judgment in an Appeal on similar facts from the decision of the Court of Appeal which had dismissed an Appeal from the decision of the High Court refusing to discharge its interim order of injunction. Relying on Section 220 (1) (g) (ii) of the 1979 Constitution, which is in pari materia with Section 241, (1) (f) (ii) of the 1999 Constitution, the learned Jurist held that an appeal shall lie as of right where an injunction is granted or refused.
In regard to the second ground of objection which complains that the grounds of Appeal are grounds of facts and mixed facts and law, there is no further need to consider same having found (as above) that the Appeal is covered by Section 241 (1) (g) (ii) of the Constitution, making the appeal as of right. While agreeing that the decisions in Shell Petroleum Dev. Co. of Nigeria Ltd V. Katad Nig, Ltd (2006) 1 NWLR (Pt. 9950) 198; B.A.S.F. Nig. Ltd V. Faith Enterprise Ltd (2010) 41 NSQR 381, (amongst other authorities cited by the Respondent), enunciate good and sound principles of law, they are inapplicable to the facts in this Appeal as they can be distinguished, not being Appeals from the grant/refusal of injunctions. I therefore find the objection bereft of merit. It is hereby overruled and dismissed.
From the seven (7) Grounds of Appeal, the Appellants distilled three (3) issues for determination by this Court, while the Respondent also formulated three (3) issues. Some of the issues are similar in content. However, since the Appellants’ issues succinctly and precisely address and cover all the areas raised in the Grounds, they are adopted for consideration in the resolution of this Appeal. They are thus paraphrased hereunder:
1. Whether the learned trial Court was right when, without first resolving the issue of the admissibility of the Respondent’s Exhibits 1 & 2 in the interlocutory proceedings, it relied on the said Exhibits to find and hold that the Respondent had shown the existence of a legal right worthy of protection by an injunction,
2. Whether the learned trial Court followed laid down principles for the grant or refusal of an order of interlocutory injunction when, without resolving the issues of adequacy of damages, balance of convenience and delay in bringing the application for injunction, it went ahead to grant the injunction sought.
3. Whether the learned trial Court was right when, without resolving the issue of proper parties raised before it, it made the order of injunction sought against the Appellants who were merely agents of a disclosed principal.
Before going into the merits or otherwise of the Appeal itself, I am of the view that it is prudent to first look into the issue raised by the learned Counsel for the Appellants in his Reply Brief on issue (2) as formulated by the Respondent and the arguments following. This is because its outcome, one way or the other, will determine whether or not the Court can consider the arguments under that issue in response to the Appeal. In his Reply Brief on point of law, Mr. Ugwuala submits that issue (2) formulated by the Respondent does not arise from the Appellants’ Grounds 2, 3 and 6 or any of the Appellants’ Grounds of Appeal. He also submits that, contrary to the issue and arguments therein, none of the Appellants’ Grounds of Appeal raises the issue of whether or not, other than Exhibits 1 & 2, there were other materials/Exhibits that established the Respondent’s interest and right to warrant and sustain the grant of injunction. In addition, Counsel contends that issue (2) and the arguments thereon are an attempt to sustain the grant of the injunction on grounds other than those relied upon by the lower Court, when the Respondent neither appealed nor filed a Respondent’s Notice as required by Order 9 Rule 2 of the Court of Appeal Rules, 2007. He contends that by Rule 3 thereof, the Respondent is prohibited from doing this without prior leave of Court. Counsel therefore submits that, not having not appealed nor complied with these Rules of court, the Respondent’s issue (2) and all the arguments thereon are predicated on a non-issue. Reliance is placed on Odibendi V. Ilodibe (2009) 3 NWLR (Pt. 1128) 269 @ 279. Learned Counsel thus urged the Court to discountenance the Respondent’s issue (2), all the arguments thereon and strike out same. Further reliance is placed on West African Cotton Ltd V. Yankara (2008) 4 NWLR (Pt. 1077) 323 @ 335; & Dada V. Dosunmu (2005) 18 NWLR (Pt. 1010) 134 @ 156 per Onnoghen, JSC. Mr. Ugwuala thus urged the Court to strike out the Respondent’s issue (2) and all the arguments thereon. It is noteworthy that the Respondent did not respond to these submissions, (made on point of law), either orally in Court or in writing.
The issue (2) under reference as set out on page 5 of the Respondent’s Brief of argument state as follows:
“2. Whether, other than Exhibits 1 and 2, there were other materials/exhibits that established the Respondent’s interest and right to warrant and sustain the existence of the court’s discretion to grant the interlocutory injunction.
I have already, (earlier on in the body of this Judgment), set out the Grounds of Appeal filed by the Appellants. Indeed, a painstaking and thorough examination of all the seven (7) Grounds reveals that there is indeed no Ground which deals with the Respondent’s issue (2) purportedly distilled from the said Grounds in its Brief. The issue is not covered by the Grounds at all. Having said that, our recourse must therefore necessarily be to the Rules guiding procedure in this Court to see in what circumstances, if any, a Respondent is allowed to raise issues outside an appellant’s grounds of appeal, and whether the Respondent complied with the rules.
Order 9 Rules 2 & 3 referred to by learned Counsel for the Appellants state as follows:
“2. A Respondent who desires to contend on Appeal that the decision of the court below should be affirmed on grounds, other than those relied upon by that court, must give notice to that effect specifying the grounds of that contention.
3. Except with the leave of the Court, a Respondent shall not be entitled on the hearing of the appeal to contend that the decision of the Court below should be varied upon grounds not specified in a notice given under this Rule, to apply for any relief not so specified or to support the decision of the court below upon any grounds not relied upon by that court or specified in such a notice.
Order 18 Rule 7 of the Court of Appeal Rules also states thus:
“7. A Respondent may, without leave, include arguments in respect of a cross-appeal or a Respondent’s notice in his brief for the original appeal and the cross-appeal or Respondent’s notice.”
The grounds relied upon by the court below in granting the order of injunction are very brief and succinct as contained in its Ruling at pages 158-170 of the printed Record of Appeal. I have already set out the relevant portion of the Ruling complained upon by the Appellants in their Notice of Appeal. It is also the ratio decidendi of the entire decision of the lower Court. However, for ease of reference, the lower Court found thus at page 169 of the Record:
“I have examined carefully the affidavits (sic) evidence of both the plaintiff and the defendant and the exhibits attached, and also considered the erudite submissions of both counsel as could be seen above. Again at the beginning of this ruling I have also considered the facts of this case as disclosed by the plaintiff’s pleadings. In the circumstances of this case, I am of the view that the plaintiff has shown the existence of a legal right through his exhibit 1 and 2 that is worthy of protection by an injunction. Consequently, prayer one of the plaintiff/applicant is granted pending the determination of the substantive suit. Prayer 2 is not granted because the plaintiff has shown in the affidavits in support of this application that it has kept counts (sic) of the minerals that the defendants carted away from its Exploration Area. That could be compensated by damages if proved.”
From the above, the trial Judge was very specific in her finding. What is also crystal clear is that the learned trial Judge based her decision to grant the order of injunction solely on the ground that the Respondent had disclosed the existence of a legal right worthy of protection based exclusively on its Exhibits 1 & 2. It is against this finding that the Appellants thus found Grounds one & two in their Notice of Appeal.
In the instant Appeal, it is beyond dispute that the Respondent did not file a cross-appeal. It is also incontestable that he did not file a Respondent’s Notice to contend that the decision of the court below be affirmed on reasons other than those relied upon by the said court. What this therefore means is that any reference, by the Respondent in its Brief of argument, to any other materials or exhibits that the lower Court should have, (in addition to Exhibits 1 & 2), relied upon to grant the injunction sought, is extraneous to this Appeal and cannot be raised by the Respondent, except in the circumstances as allowed by the Rules of this Court. Since however it is beyond disputation that the Respondent neither filed a cross-appeal nor a Respondent’s Notice to contend, (as required in Order 9 Rules 2 & 3 of the Rules of Court), the door is shut against it to now sneak in this issue through the back door, as it were, in its Brief of argument. I therefore, without further ado, uphold the arguments of Counsel for the Appellants in this respect. I hereby strike out issue 2 formulated by the Respondent in its Brief and discountenance all the arguments canvassed thereon.
In arguing issue one, Mr. Ugwuala, learned Counsel for the Appellants, argues that, in opposing the motion for the grant of the interlocutory injunction, the Appellants had challenged the admissibility of the Respondent’s Exhibits 1 & 2 on the ground that they are photocopies of public documents and ought to have been certified as true copies before the lower Court could look at them. The Respondent disagreed and argued that they were private documents. Counsel contends that the lower Court having reviewed the arguments of both Counsels, failed to resolve this issue, and instead, went ahead to rely on them in arriving at its decision to grant the order of injunction sought. Counsel relies on the decision in Federal College of Education, Pankshin V. Pusmut (2008) 12 NWLR (Pt. 1101) 405 to submit that the lower Court had a duty to consider and decide on the submission of Counsel one way or the other before relying on the said Exhibits to make its findings. This was also imperative in the event of an Appeal, in order for this Court to have the benefit of its opinion on the issue of the admissibility of the documents.
Learned Counsel further submits that the Exhibits 1 & 2, purporting to be an Exploration Licence and its revalidation certificate, are inadmissible in the proceedings being un-certified copies of public documents. Reliance is placed on Sections 97 (2) and 109 (a) of the Evidence Act. Counsel submits that Exhibits 1 & 2, being an Exploration Licence and its revalidation certificate, are issued by the Mining Cadastre Office, (a body corporate established under Section 5 (1) & (2) of the Nigerian Minerals & Mining Act, 2007), pursuant to its powers under Section 59 (1) of the Nigerian Minerals & Mining Act. Counsel referred to the case of Bisichi Tin Co. Ltd V Commissioner of Police (1963) NRNLR 71. Counsel submits that Exhibits 1 & 2 were inadmissible in law and could not be received in evidence in proof of any claim of right because the Court can only act on admissible evidence in all proceedings, whether interlocutory or substantial. He relied on a number of authorities, amongst which are: Araka v. Egbue (2003) 17 NWLR (Pt. 848) 1; Alade V. Olukade (1975) 2 SC 183; Abuul V. Benue State University (2003) 15 NWLR (Pt. 845) 59; Ajibiye V. Duro (2010) ALL FWLR (Pt. 507) 136; Fawehinmi V. I.G.P (2000) 7 NWLR (Pt. 665) 481; Alamieyeseigha V. Federal Republic of Nigeria (2005) 15 NWLR (Pt. 1004) 1; Babatunde V. Pan Atlantic Shipping & Transport Agencies Ltd (2007) 113.
Learned Counsel finally submits that the learned trial Court wrongly exercised its discretion to grant the injunction sought by using, acting and relying on legally inadmissible exhibits in coming to its decision that the Respondent had a legal interest worthy of protection by an injunction. Thus, he submits, the finding of the learned trial Judge was not supported by evidence. He urged the Court to set aside the finding of the learned trial Court made on the strength of the Exhibits 1 & 2.
Mr. Amechi, learned Counsel for the Respondent, in response to these arguments submits that, having regards to the provisions of the Nigerian Minerals & Mining Act, 2007, particularly Section 59 thereto and the general provisions of the law, the licence granted and issued to the Respondent was its private document. He refers to Section 48 which defines the Respondent as a person who is qualified to be granted and issued a licence as per Section 59. Relying on the definitions of ‘Licence’ and ‘Certificate’ as defined in The New Lexicon Webster’s Dictionary of English language, Deluxe Encyclopaedia Edition, 1990 in relation to Section 59, Counsel contends that the licence issued to the Respondent as in the Exhibit 1, is a personal and private document of the Respondent. Likewise Exhibit 2, the certificate of revalidation, Counsel contends, is also a private document. Counsel argues that, even though these documents emanate from a public authority, once issued, they became the private documents of the Respondent. Since they also emanated from the custody of the Respondent, they needed no certification. He therefore submits that photocopies of private documents can be used in affidavits and were appropriately exhibited to establish their existence. For the proposition that not all documents emanating from public bodies/establishments are public documents, Counsel relies on Abuul V. Benue State University (supra) @ 76; & Shylon V. University of Ibadan (2007) 1 NWLR (Pt. 1014) 1.
Learned counsel further submits that, independent of Exhibits 1 & 2, Exhibits 3, 4, 5 and 6 establish the interest of the Respondent in the area covered by 1100EL. Exhibits 3 & 4 are receipts of payment for service fees in respect of 1100EL and renewal, and these are buttressed by paragraphs 8 & 9 of the affidavit of Uche Ezealor. Counsel submits that within the con of these Exhibits the lower Court was right to reach the conclusion of the Applicants’ right and interest in 1100EL, the Licence. Exhibit 5 is a letter from the Ministry of Mines & Steel Development to the Respondent which confirmed that the Respondent’s Licence 11000E is valid and extant. In answer to the rhetorical question posed by it whether, having considered these materials placed by the Respondent, and having regard to the Minerals & Mining Act, 2007, it was appropriate for the lower court to have made the order to protect the deposits and interest of the Respondent, Counsel relies on Sections 6 (i) (e) (g) & 61 (4) to submit that, once the lower Court convinced itself of the existence of the Exploration Licence 1100EL in favour of the Respondent, it had a duty to grant the order of interlocutory injunction to protect the mineral deposits and interest of the Respondent.
Before resolving this issue, it is pertinent to point out here that I have, earlier on in this Judgment, discountenanced any arguments relating to other materials/exhibits before the Court below, which could have established the Respondent’s legal right but which were not relied upon by the trial Court in arriving at its decision. Thus, even though some of these arguments also surfaced in the Respondent’s arguments under his issue (1), they stand discountenanced. I do so hold.
On the first part of this issue, the facts speak for themselves. It is evident from pages 84 – 85 of the printed Record of Appeal that the Appellants challenged the admissibility of the Exhibits 1 & 2 annexed to the Respondent’s affidavit in support of its motion, (amongst other exhibits), on the ground that they are photocopies of public documents that ought to have been certified as true copies before the lower Court could use them. In its response, (contained at page 94 of the Record), the Respondent contended that they were its private documents received from a public institution and so, did not qualify as public documents. It is observed that whereas the learned trial Judge reviewed these submissions at pages 165 – 166 of the printed Record, it failed to resolve the issue raised one way or the other before proceeding to make its findings thereon at page 169 of the Record.
The law is well settled, and has oft been stated by the appellate courts, that it is the duty of every court to pronounce on every issue properly placed before it for consideration and determination before arriving at a decision. Where it has failed to do so, it leads to a miscarriage of justice, in addition to breaching the right of the Appellants to a fair hearing. See the decisions in Ovunwo V. Woko (2011) 5 SCNJ 124; Federal College of Education V. Pusmut (supra); Dawodu V. National Population Commission (2000) WRN 116 @ 118. This point, concerning a court’s bounden duty to pronounce on every issue raised before it, is fundamental to resolving the instant questions raised in this Appeal and is visibly sustainable in view of the decision of the Supreme Court in Brawal Shipping (Nig.) Ltd. V. Onwadike Co. Ltd (2000) 5 SCNJ 508, wherein Uwaifo, JSC, held as follows:
“It is no longer in doubt that this court demands of, and admonishes the lower courts to pronounce, as a general rule, on all issues properly placed before them for determination, in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal.”
See also Katto V. C.B.N. (1991) 9 NWLR (Pt. 214) 126; Okonji V. Njokanma (1991) 7 NWLR (pt. 202) 131; Atanda V. Ajani (1989) 3 NWLR (Pt. 111) 511; Olobue V. Nnabia (1972) 6 SC 27; Oyediran V. Anise (1970 1 ANLR 313 @ 317. A deliberate failure to do so has been characterized as amounting to a failure to perform a statutory duty.
Since the printed Record of Appeal bears out the complaint of the Appellants that the lower Court failed in its duty to pronounce on the issue raised of the admissibility or otherwise of the Exhibits 1 & 2 before it, I do hereby find that, in failing to address the issue raised by the Appellants on the admissibility of the said documents before it made its findings, the lower Court failed in its duty, and this has thereby occasioned a miscarriage of justice. This failure on the part of the court below has, in addition, deprived this Court of the benefit of its opinion on the issue of the admissibility of the documents. The second aspect of this issue is, whether the lower Court was therefore wrong when it used the Exhibits 1 & 2 to grant the order of injunction sought. The law is that documents may be proved by primary evidence except in the cases mentioned in the Evidence Act, 2011, particularly in Sections 89 and 90 thereof. Primary evidence means either that (i) the document itself is produced before the court, (ii) any one of the documents which was executed in several parts, (iii) its counterparts where each has been executed by one or some of the parties and copies produced via one uniform process such as printing, computer or other electronic or mechanical process, etc.
Whereas Secondary evidence includes (i) copies made from the original by mechanical or electronic processes which in themselves ensure the accuracy of the copy and copies compared with such copies; etc. See Sections 85-88 of the Evidence Act. By these provisions, it can be safely said that licences and certificates issued to individuals by public authorities may be proved by tendering the actual originals of these documents, being primary evidence. Where, however, the complication arises, (as in this case), is: where a party tenders a photocopy of such documents which, admittedly, were issued to him by a public authority. In that circumstance, can such a photocopy be said to be primary evidence of the document as required by the law as set out in Sections 85 and 88? Furthermore, (and this is the crux of this issue), are the licence and certificate of revalidation issued by the Ministry of Mining and Solid Minerals to the Respondent, (Exhibits 1 & 2), public documents for which certification is undeniably required, or private documents? The Evidence Act has made clear provisions to guide parties and the courts in this matter and for ease of reference, the contents of Sections 102 and 103 of the Evidence Act are set out hereunder:
“102. The following documents are public documents –
(a) Documents forming the official acts or records of the official acts of-
(i) The sovereign authority,
(ii) Official bodies and tribunals, or
(iii) Public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and
(b) Public records kept in Nigeria of private documents.
103. All documents other than public documents are private documents.”
I am of the considered view that, going by the above provisions, the licence and certificate of revalidation issued to the Respondent by the said Ministry, an official body/authority, to the Respondent, (Exhibits 1 & 2), are public documents. That being the case, the law is since settled that the contents of a document can be proved in a proceeding by tendering the original document, or where the original is unavailable, by a certified copy of the said original as secondary evidence of the contents of the said original. Section 104 (1) & (2) (formerly 111(i) of the Evidence Act provides thus:
(1) “Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.
(2) The certificate mentioned in subsection (1) of this section shall be dated and subscribed by such officer with his name and official title, and shall be sealed whenever such officer is authorised by law to make use of a seal, and such copies so certified shall be called certified Copies.”
It is clear from these provisions that the only acceptable secondary evidence of a public document is a certified copy of the document. These provisions have put the position precisely, concisely and beyond speculation or conjecture by the words “but no other kind of secondary evidence is admissible” in Section 90(1) (c) (formerly 97 (2) (c) of the Act. Niki Tobi, JSC, in Araka V. Egbue (2003) 7 SCNJ 114 stated the rationale behind this provision lucidly at page 126 of the Report as follows:
“One main objective behind Section 97 (2) (c) of the Evidence Act is to ensure the authenticity of the document tendered vis-a-vis the original. This is in addition to the need for the preservation of public documents. In this age of sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the con of Section 97 (2) (c) could be tutored and therefore not authentic. Photo tricks could be applied in the process of copying the original document with the result that the copy, which is secondary evidence, does not completely and totally reflect the original and therefore not a carbon copy of the original. The court has not the eyes of an eagle to detect such tricks.”
Exhibits 1 & 2 are undoubtedly not in conformity and lack all the requirements stipulated by the relevant provisions of the Evidence Act. They are evidently photocopies of originals which are not certified. This non-certification of these public documents renders them inadmissible and same cannot be used by the court. See the decisions in Goodwill & Trust Investment Ltd V. Witt & Bush Ltd (2011) 3 SCNJ 241; Federal Airports Authority of Nigeria (FAAN) V. Wamal Express Services (2011) 1 SCNJ 133; Agagu V. Dawodu (1990) 9 NWLR (Pt. 160) 56.
It is therefore difficult to see how the Court below acted on the said documents, even after its attention had been drawn to this fact by learned Counsel for the Appellant. Indeed, the lower Court simply ignored the submissions thereon and failed to resolve the issue one way or the other before it proceeded to act on the documents to grant the order of injunction sought.
A court of law is expected in all proceedings before it to admit and act only on legal evidence. Accordingly where a trial Court inadvertently admits evidence which is absolutely inadmissible, it has a duty generally not to act upon it but rather to discountenance it. So too, if a document is unlawfully received in evidence in the trial Court, an appellate court has inherent jurisdiction to exclude and discountenance the document. See the decision in I.B.W.A. V. Imano Ltd (2001) 3 SCNJ 160.
Thus, Exhibits 1 & 2, which are the cynosure of this Appeal, not being certified within the meaning of Section 111, (now 104 (1) & (2)) of the Evidence Act, should properly have been disregarded by the lower Court. It is therefore incumbent on this Court, pursuant to our powers in Section 15 of the Court of Appeal Act, 2004, to exclude and discountenance the said exhibits as inadmissible evidence. The documents are therefore hereby discountenanced.
It is thus for all these reasons that I hold that the lower court acted in error when, without resolving the issue of the admissibility or otherwise of the Exhibits 1 & 2, it relied on same to find that the Respondent had proved the existence of a legal right worthy of protection by an order of injunction. It is further my finding that the said Exhibits I & 2 are inadmissible being uncertified photocopies of public documents. I therefore resolve issue one in favour of the Appellant.
In respect of issue two, which is predicated on Grounds 3, 4, 5 & 6 of the Grounds of Appeal, learned Counsel relied on the decision of the Supreme Court in Oduntan V. General Oil Ltd (1995) 4 SCNJ 145; & Uket V. Okpa (2005) 8 NWLR (Pt.983) 464 for the principles to follow and issues to consider in the grant or refusal of an order of interlocutory injunction. Counsel refers to its written address before the lower Court at pages 85 – 87 of the Record where he argued that the Respondent was unable to show that the balance of convenience was in its favour, that damages can adequately compensate the Respondent in the event that the application is refused and it succeeds in its final claim, and that the Respondent was guilty of delay in bringing the application, since the activity sought to be restrained had been on-going, to the knowledge of the Respondent, for more than one year before the application was brought. Yet, the trial Court having reviewed these submissions of Counsel and issues raised therein, failed to resolve same one way or the other before going on to grant the order sought. Learned Counsel thus submits that where, as in this case, the lower Court failed to consider the relevant issues in the determination of the application for injunction, the appellate court will, in the exercise of its powers, consider the issues. He therefore urged the Court to go ahead and do so.
On the issue of the balance of convenience, learned Counsel for the Appellants submits that the Respondent was not able to show that the balance of convenience in the application was in its favour, and that damages cannot adequately compensate it for whatever injury it may suffer if the application was refused, nor that the Appellants would not be able to pay any damages that would be so awarded. Instead, the lower Court actually found that the Respondent can be compensated in damages in view of the depositions in its affidavit, and so refused prayer two on the motion paper. Counsel also contends that, since the Respondent claims N900, 000,000.00 as damages in the substantive suit, this confirms that its remedies are found in monetary damages. Reliance is placed on Orji V. Zaria Industries Ltd (19921 1 NWLR (Pt. 216) 124; & American Cyanamid Co. V. Ethicon Ltd (1975) AC 395. Learned Counsel thus urged the Court to hold that in view of the evidence and the express finding of the lower Court that damages could adequately compensate it, the Respondent was not entitled to the order of injunction granted to it.
It is further submitted by Counsel that the conduct of the Respondent in making this application was reprehensible in that it was guilty of undue delay in bringing it. Going by the affidavit evidence of the Appellants, particularly paragraphs 6 and 10 (a) thereof, the Appellants averred that the acts complained of had been on-going for a period of more than one year before filing the application and with no form of complain from the Respondent. This issue was also raised and canvassed in the written address of the Appellants. Nonetheless, the Respondent neither countered these facts in its counter affidavit nor did it respond to the arguments on this in its written address, and so it is deemed admitted. Counsel therefore contends that the admitted delay in bringing the application for an injunction defeats the application and the lower Court should not have granted it. Reliance is placed on Nika Fishing Co. Ltd V. Lavina Corporation (2008) 15 NWLR (Pt. 1114) 509; Anosike Building & Comm. Co. v. F.C.D.A. (1994) 8 NWLR (Pt. 363) 421; & Kotoye V. C.B.N. (1989) 1 NWLR (Pt. 98) 419. Counsel urged the Court to hold that the application is defeated by the fact of delay by the Respondent who stood by and watched while all the activities on site went on for over one year without complaining or coming to court. He therefore urged the Court to allow the Appeal and set aside the order of injunction on the grounds that damages would adequately compensate the Respondent; that the balance of convenience weighed more in favour of refusing the application; and the delay in bringing the application defeated it.
It is noted that The Respondent’s response in regard to Grounds 3 & 6 was made under his issue (2), which issue, as well as submissions, have been earlier discountenanced by this Court. However, the Respondent’s issue (3) is akin to the Appellants’ issue (2). Learned Counsel therein submits that the Appellants offered Exhibit MD1, an agreement for “sale & Purchase of Minerals/Lease of Machineries & Hiring of Expatriate Staff Agreement” with ‘Zumunci Multi-Purpose Co-operative Society Ltd’ as the sole justification for carrying out extensive mining activities and evacuation of Minerals from the area covered by the Lease. No further evidence is disclosed to show that the said ‘Zumunci Multi-Purpose Co-operative Society Ltd’ has any interest that is in consonance with Section 46 of the Act. Since Sections 59 (2) & 93 exclude any other interest in an existing Exploration Licence Area, the injunction granted by the lower Court should be held as appropriate.
On where the balance of convenience lies, learned Counsel submits that the Appellants have admitted to carrying out mining operations and yet have not shown any legal right or interest, thereby admitting to impunity. Thus Counsel contends that, between the Appellants’ impunity in un-authorized mining and evacuation of the minerals, the Respondent’s rights inured in the Exploration Licence, and Section 61 (4) of the Act, the balance of convenience favours the Respondent in the preservation of the mineral deposits by the interlocutory injunction granted by the lower Court.
On the allegation of delay made against the Respondent in bringing the application, Counsel cites paragraphs 16, 17, 18 & 19 of the affidavit of Uche Ezealor, as well as Exhibit 5 & 6 to disprove same. He submits that the issue of delay goes to no issue.
On the issue of damages being adequate compensation, Mr. Amechi, learned Counsel for the Respondent, submits that since the Minerals & Mining Act does not allow for the removal of any minerals from the Exploration Area other than as provided for under Section 60 (e) & (g), the argument of compensation for the Respondent by the Appellants cannot be sustained. Thus the lower Court had a duty to issue the injunction to give effect to the preservation of the minerals. In addition, Counsel contends that the reluctance of the lower Court to grant the order to seal the warehouse as urged on the lower Court in its prayer 2, explaining that compensation may inure or serve as recompense, does not detract from the power of the lower Court to stop further mining and evacuation of minerals by the Appellants, the legality of which is at the root of the substantive suit. Counsel submits that, given the prohibitions contained in the Minerals & Mining Act, 2007, the argument of the Appellants relating to compensation is untenable and inapplicable to this matter.
Furthermore, learned Counsel submits that the claim for N900,000,000.00 relates to the completed acts of the Appellants with respect to the unlawful mining and evacuation that has occurred which must be distinguished from the future interest of the Respondent entitled to the mining Lease in the area covered by the Exploration Licence. He contends that this must be distinguished from a situation where the Respondent is already a holder of a mining Lease, in which case, it would be entitled to compensation. Counsel argues that compensation is however not applicable in the instant case because at the exploration stage, the Minerals which are still deposits in the ground can only be protected and preserved for the Exploration Licence holder. (Reference is made to Section 60 (e) & (g) of the Act respectively). He submits that this is what was done by the lower Court by the grant of the order of injunction to prevent further mining and evacuation of the deposits, pending the determination of the substantive suit.
It must be stated, ab initio, that the law is settled that, except under some stated conditions, the Court of Appeal will not interfere with a discretion or finding of fact by a trial court. But where the discretion of the trial court was not judicially or judiciously exercised or where the finding of fact was perverse, the Court of Appeal will definitely interfere. See Makinde V. Akinwale (2000) 2 NWLR (Pt. 645) 435; Chikere V. Okegba (2000) 12 NWLR (Pt. 681) 274; Acme Builders Ltd V. K.S.W.B. (1999) 2 NWLR (Pt. 590) 288; Uzochi V. Onyemwe (1999) 1 NWLR (Pt. 587) 339. This Court will not interfere in the exercise of the discretion of a lower court unless the exercise of such discretion is “manifestly wrong, arbitrary, reckless or injudicious”. See per Nnamani, JSC in University of Lagos (1985) 7 NWLR 156 @ 163. See also In Re Adewunmi (1988) 13 NWLR (Pt. 83) 483; Lauwers Import-Export V. Jozebson Ltd. (1988) 13 NWLR (Pt. 88) 430; Nwabueze V. Nwosu (1988) 4 NWLR (Pt. 88) 257-262.
In the instant case, following my findings under issue one that the lower Court was in error when it failed to resolve the issue raised as to the admissibility or otherwise of Exhibits 1 & 2, and yet it went on to rely on same to find that the Respondent had a legal right worthy of protection by the grant of an injunction, I am of the view that the exercise of discretion by the trial Court was injudicious. It was also perverse as it was given adverse to the facts before it as disclosed in the affidavits. For that reason, I must interfere in the plainly wrongful exercise of discretion by the trial Court. Furthermore, in instances such as this, the Court of Appeal is empowered under Section 15 of the Court of Appeal Act to generally have full jurisdiction over the whole proceedings as if the proceedings have been instituted in the Court of Appeal as a court of first instance and may hear the case in whole or in part.
The principles for the grant of an interlocutory injunction have been well stated and restated in decisions of the highest Court of our land time and again, enough to make them now a matter of judicial recognition. An interlocutory injunction is procedurally between an interim injunction and a perpetual injunction, and it is granted pending the determination of the case. The locus classicus is Kotoye V. Central Bank of Nigeria (1989) 1 NWLR (Pt. 98) 419. In that case, the Supreme Court held as follows:
(a) “That the applicant must show that there is a serious question to be tried, i.e., that the applicant has a real possibility, not a probability of success at the trial, notwithstanding the defendant’s technical defence (if any), (Obey Memorial Specialist Hospital V. A-G Federation (1987) 3 NWLR (Pt. 50) 325 followed).
(b) That the applicant must show that the balance of convenience is on his side; that is that more justice will result in granting the application than in refusing it, Missini V. Balogun (1958) 1 ALL NLR 318 referred to.
(c) That the applicant must show that damages cannot be an adequate compensation for his damage or injury, if he succeeds at the end of the day.
(d) That the applicant must show that his conduct is not reprehensible for example that he is not guilty of any delay.
(e) No order for an interlocutory injunction should be made on notice unless the application gives a satisfactory undertaking as to damages save in recognised exceptions.
(f) Where a court of first instance fails to extract an undertaking as to damages, an appellate court ought normally to discharge the order of injunction on appeal.”
See also Akinpelu V. Adegbore (2008) 4 SCNJ 220; 7- Up Bottling Co. Ltd V. Abiola & Sons (Nig) (1995) 3 NWLR (Pt. 383) 257; Ogbonnaya V. Adapalm (Nig) Ltd (1993) 5 NWLR (Pt. 292) 147; Sotuminu V. Ocean Steamship (Nig) Ltd (1992) 5 NWLR (pt. 293) 1; Akibu V. Oduntan (1991) 2 NWLR (Pt. 171) 1; Globe Fishing In. Ltd V. Coker (1990) 7 NWLR (Pt. 162).
One other factor which is of importance to be considered for the grant of an interlocutory injunction is the preservation of the res. It is the province of the law that the res should not be destroyed or annihilated before the judgment of the court. The res in this case is the mining site at Kampani Zurak in Wase L.G.A. of Plateau State. The order of injunction is available to restrain a defendant from the repetition or the continuance of the wrongful act or breach of contract complained of. See the cases of Adenuga V. Odumeru (2001) 1 SCNJ 34; Union Beverages Ltd. V. Pepsicola International Ltd (1994) 3 NWLR 1. This is with the object of keeping matters in status quo until the question in issue between the parties is determined. See Okafor V. Nnaife (1987) 4 NWLR 613; Ojukwu V. Lagos State Government (1985) 3 NWLR 39.
It however is of paramount importance in applications of this nature that an applicant, seeking to stop the actions of an opposing party by the injunctive powers of the court, must show that he has sufficient interest in the reliefs sought. Put in other words, before the Respondent can be entitled to an order of injunction against the Appellants, it must be established that it has a legal right capable of being protected by such an order. See Akerele V. Awolowo (1962) WNLR 220 @ 224.
The main purpose of an interlocutory injunction is thus to protect a plaintiff against injury by a violation of his right for which he cannot be adequately compensated in damages recoverable in the action if the case were resolved in his favour, at the trial. See the case Dyktrade Ltd V. Omnia Nig Ltd (2000) 7 SCNJ 90. It is therefore fundamental and indispensable that the Respondent must establish such a right before an order of interlocutory injunction may be made in its favour.
It seems clear to me that the Respondent, contrary to the finding of the lower Court, failed to disclose that it had any legal right to protect against the Appellants in Court. Therefore, I adopt all my findings under issue one above where I have found as a fact that the Respondent failed to establish before the lower Court that it has any legal right whatsoever to protect since Exhibits 1 & 2 relied upon by the Court below, the purported licence and certificate, were legally inadmissible.
In addition to the absence of a legal right to protect, it is the law that interlocutory injunctions are only granted in cases of urgency. Thus, an applicant who is guilty of delay thereby demonstrates the absence of any urgency requiring prompt relief. See Udeozo V. Ochoma (2006) 2 SCNJ 278. In this case, no urgency was disclosed by the Respondent to enable this Court exercise its discretion in its favour. Instead, from the affidavit evidence of the Appellants, in conjunction with that of the Respondent, the Respondent’s behaviour can rightly be described as lackadaisical, laid-back and apathetical. This is because the Respondent leisurely waited in the wings and watched the Appellants mine the land, gleefully counting the alleged tons and tons of minerals removed from the land, at the rate of twelve (12) trucks a day, for over one year before approaching the lower court for relief, seeking an order of injunction and the whopping sum of Nine Hundred Million Naira (N900, 000, 000.00) in damages for the minerals allegedly removed from the site. The Respondent was manifestly guilty of delay, and it is trite that delay defeats equity, particularly where the exercise of the discretion of a court is sought. It is no wonder that the lower Court refused the second prayer of the Respondent to seal the warehouse where the minerals were allegedly stored, since it is evident that the Respondent’s losses, if proved, can be compensated in damages.
Having taken a full and careful look at all the facts of this case as disclosed in the parties’ affidavits and the legally admissible evidence before the trial Court, I take the firm view that the trial Court’s discretion was wrongly exercised and it is liable to be set aside in the interest of justice. Issue two is resolved in favour of the Appellants.
In respect of the third and final issue, Mr. Ugwuala, learned Counsel for the Appellants, submits that the learned trial Court was wrong when it made the order of injunction without first resolving the issue of proper parties raised before it by the Appellants. He refers to paragraphs 5-11 & 16 of the Appellants’ counter affidavit before the trial Court where they had disclosed that they were, at best, merely agents of the Company carrying out the mining activities complained of, i.e. Kampani Zurak Community, as they were hired by the latter to carry out the said jobs. In furtherance of this, Kampani Zurak, applied to be joined as a party to the matter two weeks before the Ruling of the lower Court was delivered. The said Kampani Zurak Community deposed to facts confirming this in the several affidavits in support of its motion for joinder. It also expressly admitted to being the party carrying out the mining activities complained of and not the Appellants. That being the case, Counsel submits that the Appellants were not the proper parties against whom the order of injunction ought to have been made, but Kampani Zurak Community, who unfortunately, were not parties at the time. Learned Counsel therefore submits that the lower Court ought to have considered all these facts placed before it in coming to its decision. Further to this, Counsel contends that even the 2nd Appellant as the Managing Director of the 1st Appellant Company, was thus also an agent of a disclosed principal, the order of injunction ought not to have been made against him. Reliance was placed on a number of authorities which shall be considered as we go along. He therefore urged the Court to allow the Appeal on this issue also and hold that the Appellants were not the proper parties against whom the order of injunction should have been made.
In conclusion, Mr. Ugwuala urged the Court to allow the Appeal, set aside the orders of injunction made by the trial Court and in its place, enter an order dismissing the Respondent’s motion for injunction,
In its Response, Mr. Amechi, learned Counsel for the Respondent, submits that the Appellants never revealed to the lower Court the existence of a contrary title to the Respondent’s Licence 1100EL, which formed the basis of their carrying out mining operations and the depletion of the minerals, He submits that it is of no moment that the Appellants claim to be related to any other person of no revealed legal right or interest. On the other hand, at the time the application was argued and reserved for ruling, the Appellants were the only defendants presented to the lower Court and the facts place the mischief as their responsibility. Reliance is placed on Nwoke V. Okoye (2010) 41 NSSQR 1 @ 46; & Ayorinde v. Airat (2000) 75 LRCN 206 @ 235. Counsel therefore submits that the Appellants have not made a case to warrant tampering with the discretion of the trial Court in the grant of the interlocutory injunction.
Indeed, Exhibit MD1 annexed to the Appellants’ counter affidavit is an agreement which alleged that the Appellants’ presence on the land was as agents of a disclosed principal. Since this is also a crucial issue in the determination of the Appeal, I will reproduce relevant portions of the agreement hereunder:
“SALE AND PURCHASE OF MINERALS/LEASE OF MECHINARIES AND HIRING OF EXPATRIATE STAFF AGREEMENT
THIS AGREEMENT entered into this 10th day of July 2008 by and between SOLID UNIT NIGERIA LTD … (hereinafter referred to as the “Company”)…
AND
ZUMUNCT MULTI-PURPOSE CO-OPERATIVE SOCIETY LTD … (hereinafter referred to as the “Community”)…
NOW THIS AGREEMENT WITNESS AS FOLLOWS.
1. That the Community shall lease equipment and expatriate workers from the company at a fee and price to be determined by the Community and the Company from time to time depending on the prevailing rate at the point in time.
2. That the Community shall sell all the mined products to the Company at a price to be determined by both the Community and the Company depending on the prevailing rate at the point in time.
3…
IN WITNESS WHEREOF the parties herein have executed this agreement in the manner herein the day and year above written.
THE COMMON SEAL OF within name ZUMUNCI MULTI-PURPOSE COOPERATIVE SOCIETY LTD was affixed hereunto in the presence of
(Signed & Sealed) (signed & Sealed)
Chairman Secretary
THE COMMON SEAL OF within named SOLID UNIT NIG. LTD was affixed hereinto in the presence of
(Signed & Sealed) (Signed & Sealed)
Managing Director Secretary”
At pages 112-117 is a motion on notice filed on 15th June, 2010 by three named persons, for themselves and on behalf of Zumunci Multi-purpose Co-operative Society Ltd, as Applicants, against the Respondent/Plaintiff and the Appellants/Defendants as Respondents, seeking:
“a) An order joining the Applicants as co-Defendants in suit No FHC/J/CS/21/2010.”
In support of the motion is a 5 paragraph affidavit wherein the Applicants state inter alia thus:
“3 a) That the Defendants/Respondents are working for the Applicants on their land at Kampani Zurak, Was L.G.A. which land the Plaintiff claims it is covered by EL100 belonging to it.
b) That the Plaintiff/Respondent sued the Defendants/Respondents before this Honourable Court claiming among others that it has exploration licence (EL100) covering the land.
c) That the Plaintiff/Respondent is also challenging the Defendants/Respondents over the work the Defendants/Respondents are doing for the Applicants on the land at Kampani Zurak Wase L.G.A. which the Plaintiff/Respondent claim to have EL100 covering it,
d) hat the land in which the Plaintiff/Applicant (sic) is seeking reliefs contained in the Plaintiff/Applicant (sic) statement of claim belongs to the Applicants, the Plaintiff/Respondent have no interest whatsoever on the land.
e) That the subject matter of litigation between the Plaintiff/Respondent and the Defendants/Respondents belongs to the Applicants
f) That the Applicants through the 4th Applicant engaged the services of the Defendants/Respondents to work and mine on their behalf on their land which the Plaintiff/Respondent claims to have EL1100 covering it.
g) That the Applicants intend to defend and counterclaim against the Plaintiff/Respondent in suit No. FHC/J/CS/21/2010.”
The Applicants accompanied their motion with a “Written Address” at pages 115-117 of the Record. Upon being served these processes, the Respondent herein promptly filed its counter affidavit to this motion on 26-06-2010 as well as its “Written Address” and same is contained at pages 118-123 of the Record, to which the Applicants filed a “Further & Better Affidavit” and “Written Address” in support at pages 124-142 of the Record. Wherein the Respondent/Plaintiff again filed a “Further Written Address” in reply to the issues raised in the Further and Better Affidavit at pages 142-144, which provoked a “Reply to Further Reply” by the Applicants seeking to be joined at pages 145-146 of the Record.
On the 30-06-2010, the matter came up before the lower Court for ruling in the application for the grant of an interlocutory injunction against the Appellants. In the interim, the above-mentioned motion for joinder had been filed, precisely two weeks before the date slated for the ruling. It is the law that it is the duty of a court to take judicial notice of all processes filed in a matter before it. See Nwora V. Nwabueze (2011) 12 SCNJ 67. Thus, the very contentious nature of the application for joinder should have been a red flag to the Court below on the necessity to settle the issue of the proper parties before it. However, surprisingly, when the lower Court’s attention was drawn to the application by Counsel for the Applicants, who was in Court, the Court below declined to hear it. (See pages 152-153 of the Record).
A necessary party to a proceeding is a party whose presence and participation in the proceeding is necessary or essential for the effective and complete determination of the claim before the court See In Re-Mogaji (1986) 1 NWLR (Pt. 19) 579.
The law requires that a person who has an interest in any case, and who is aware of a pending action in a court of law involving this same interest should at the earliest opportunity seek to be joined as a party in the suit. A party cannot fold its arms and wait, leaving other parties to fight its battles for him as the suit is in progress, only to seek to grab an advantage at the end of the proceedings at the trial court.
Furthermore, an application for joinder may be entertained and granted to avoid a multiplicity of actions or to eliminate the possibility of two courts of coordinate jurisdiction, giving different and conflicting decisions in two cases that are substantially the same. See the cases of Bank of Ireland V. Union Bank (1998) 7 SCNJ 385; Kigo (Nig.) Ltd V Holman Bros (Nig.) Ltd (1990) NSCC 204 @ 211. Thus, a party may be joined as a person interested in a suit very early or midstream, depending on when he became aware of the pending proceedings. See Re: Arowolo (1993) 2 NWLR (Pt. 275) 317.
The reason for making a person a party to an action is that he should be bound by the result of the action. Consequently, the question to be settled in the action must be one which cannot be effectually and completely settled unless he is a party. Joinder is necessary to ensure that proper parties are before the court for determining the point in issue. An application to join may be made at any time. See Panalpina World Transport (Nig.) Ltd V JB Olandeen International (2010) 12 SCNJ 494; Green V. Green (1987) 3 NWLR (Pt. 61) 480; Peenok Investment Ltd V. Hotel presidential Ltd (1932) 12 SC 1; Lajumoke V. Doherty (1959) NMLR 281.
However, in a situation where a court is being called upon to restrain the actions of a parties before it who claim they were agents of a disclosed principal, and the disclosed principal himself owns up to being the force behind the action now being sought to be restrained, then it becomes, not only imperative but prudent and necessary to hear and determine the motion for joinder before proceeding further.
From the affidavit of the Applicants seeking to be joined, it is apparent that they claim ownership of the land being mined by the Appellants, as well as claiming that the Appellants were only hired by them to carry out these works in line with the Agreement, Exhibit MD1. At this point it should have been more sensible, perceptible and prudent for the learned trial Judge to have heard the Applicants on their motion. This is because in the face of the claim of ownership by the Applicants, it had become imperative and crucial to settle the issue of the proper parties before the trial Court before it proceeded further, as it is adverse, unwarranted and inequitable to slam a restraining order on only persons who were mere agents of a disclosed principal. This is even more so since an agent acting on behalf of a known and disclosed principal incurs no personal liability. See the decision in the case of Osigwe V. PSPLS Management Consortium Ltd (2009) 1 SCNJ 1.
The Applicants for joinder before the trial Court may or may not have a right to be heard. Nevertheless, having filed a motion before the lower Court disclosing their interest, the lower Court was duty bound to have disposed of that vital issue before going on to make the order of injunction restraining the Appellants. I therefore find that the issue of who were the proper parties should have been settled before, or at the very least, simultaneously with the application for the order of injunction sought. Consequently, I also resolve this third issue in favour of the Appellants.
In the result, the grant of an interlocutory injunction in favour of the Respondent cannot be proper or right in law as the Respondent woefully failed to disclose what legal right it possesses that was worthy of protection by this injunctive relief. Hence, I find the Appeal pregnant with merit. It succeeds and is allowed. Consequently, the motion seeking an interlocutory injunction restraining the Appellants from mining the land in question at Kampani Zurak in Wase Local Government Area of Plateau State, pending the determination of the substantive suit before the trial Federal Court sitting in Jos, is hereby refused and accordingly dismissed. The order of injunction made on the 30-06-2010 by the Federal High Court sitting in Jos is hereby set aside. Both parties are ordered to bear their own costs.
IBRAHIM SHATA BDLIYA, J.C.A.: I have had the privilege of reading before now, the lead judgment just delivered by my learned brother, Jummai Hannatu Sankey, J.C.A. The issues which called for determination in the appeal have been adequately considered and resolved appropriately. I have nothing useful to add. I adopt it as mine, I, too, do hereby allow the appeal. The order of injunction made on the 30th of June, 2010 by the trial court sitting in Jos, is hereby set aside. I abide by the order as to costs contained therein.
PETER OLABISI IGE, J.C.A: I was privileged to have read in advance the Judgment just delivered by my Lord Sankey, J.C.A. I entirely agree with the reasoning and conclusion reached by My Lord, The appeal succeeds and it is allowed, I abide with all the orders made in the leading Judgment including the order that parties shall bear their own costs.
Appearances
H.N. Ugwuala, Esq.For Appellant
AND
R. Amechi, Esq.For Respondent
