THE EXECUTORS OF THE ESTATE OF THE DECEASED MADAM CATHRIN EFEJUKU & ANOR v. MR. PETER JAMES AZIZA & ORS.
(2013)LCN/6710(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of February, 2013
CA/L/36/2011
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
Between
1. THE EXECUTORS OF THE ESTATE OF THE DECEASED MADAM CATHRIN EFEJUKU
(Substituting Late Madam Cathrin Efejuku by order of the court made 21st May 2012)
2. MRS. BISI GEORGE Appellant(s)
AND
1. MR. PETER JAMES AZIZA
2. FRANK EGBE
3. WEYIMI EGBE
4. PETER THOMAS
5. ABAYOMI IKOMI
6. EMMA ROLI EGBE Respondent(s)
RATIO
DEFINITION OF CONSENT JUDGEMENT
In SPDCN Ltd v. Azukaeme (2011) 9 NWLR (pt.1252) 360 at 373, Eko, JCA defined consent judgment thus:
“Consent judgement, in its ordinary or natural meaning, therefore is a judgment, decision or order which parties in litigation voluntarily agreed to be entered for, against or between them.”
At page 374 paragraph A his Lordship held that for there to be consent judgment, there must be consensus ad idem between the parties.
In the case of Vulcan Gases Ltd v. G. F. Ind. A. G. (2001) 9 NWLR (pt.719) 610 at 645, Iguh JSC said:
“In order to have a consent judgment therefrom, the parties must reach a complete and final agreement on the vital issues in their terms of settlement. They must be ad idem as far as the terms of their compromise agreement are concerned and their consent must be free and voluntary. The consent judgment emerges the moment the court on the application of the parties enters such compromise agreement as the judgment of the court.” PER IYIZOBA, J.C.A.
WHETHER OR NOT THE COURT IS BOUND TO EXERCISE CAUTION WHEN MAKING INTERLOCUTORY DECISIONS
While the Appellant contends that the 1st Respondent must establish his legal right before grant of injunction in his favour, the Respondents are of the contrary view. It is not in dispute that the law is that at the stage of making interlocutory decisions, a court of law is bound to exercise caution not to prejudge issues that would arise for decision at trial of the substantive case. In view of this accepted principle of law, it seems to me that a court of law will not require clear proof or establishment of legal right before injunction is granted in an appropriate case.
The opinion of the Supreme Court in the case of Akapo v. Hakeem-Habeeb (1992) 6 NWLR (pt.247) 226 is instructive in this matter. The Court said per Karibi-Whyte, JSc at page 295D-H:
“It is important to bear in mind that the allegation of improprieties against the appellant constitutes the entirety of the substantive claim before the Court. The Court is not at this stage of the proceedings concerned with the proof of the allegations or effective denials of them. The appellant is not being required to establish their refutal. These are matters to be dealt with at the trial. The application before the Court is for an interlocutory injunction. Formerly, all that an applicant was required was to establish a prima facie case, see D. C. Thomson & Co. Ltd v. Deakin (1952) 1 Ch. 656 or as in Preston v. Luck (1884) 27 Ch. D. 497, 505-6, that there is a strong probability that the Applicant is entitled to relief. The question of a strong prima facie case was stated by Atkin LJ in 1924 in smith v. Grigg Ltd (1924) 1 KB 655 at p. 659.
It seems to me from Kufeji v. Kogbe (1961) 1 All NLR 113, John Holt Nigeira Ltd & Anor. V. Holts African Workers Union (1963) 2 SCNLR 383, to Ladunni v. Kukoyi (1972) 1 All NLR (pt.1) 133, the test of a prima facie case of the probability that the claim would succeed was applied. In 1987, in Obeya memorial Hospital v. Attorney-General for the Federation & Anor. (1987) 3 NWLR (pt.60)325, this Court adopted the new test formulated by the English House of Lords in American Cyanamid Co. V. Ethicon Ltd (1975) 1 All ER 504, where it was stated to be as follows:
The Court must no doubt be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried.’
This principle was also applied in Kotoye v. CBN Ltd (1989) 1 NWLR (pt98) 419.”
The clear statement of the law by the Supreme Court in this case shows that:
1. The court is not at this stage of the application for injunction concerned with proof of the allegations contained in the affidavit in support of motion or the effective denials of them;
2. Court is concerned with establishment by the applicant that there are serious issues for trial.
Thus in this case, all that the 1st Respondent needs to establish is evidence of his right, a breach of which is being threatened. He need not establish the right at this stage. He only needs to establish that his claim of threatened breach of the right is not frivolous. In other words, there is a serious issue for trial. What are the facts in this case? The 1st Respondent claims that he is a son of the deceased which was denied by the Appellants. However, the 2nd Appellant in her affidavit acknowledged that the deceased told her that he had an affair with the mother of the 1st Respondent. See page 48 of the records, lines 1-4. In the Reply to Counter-Affidavit of the 5th -6th Defendants (that is Appellants) dated 3rd June 2009, it was strongly asserted on behalf of the mother of the 1st Respondent that he is a product of that relationship. In my view this shows that the case or claim of legal right to the estate of the deceased by the 1st Respondent is not frivolous and that there is a serious issue for trial. These are not matters that can be resolved at this interlocutory stage but are matters the court will consider in determining whether there is a serious issue to be tried. The case of Jabre v. Jabre (1999) 3 NWLR (Pt. 596) 606 @ 619 -621 is distinguishable. The grant of the interlocutory injunction here does not confer any immediate benefit on the 1st Respondent. The order for maintenance of the spouse in Jabre conferred an immediate benefit to the spouse when the court was yet to determine the validity of the marriage. I have no difficulty whatever in holding that in the circumstances of the instant case, the question of the legal right of the 1st Respondent need not be proved at this stage before injunction is granted. PER IYIZOBA, J.C.A.
CHINWE EUGENIA IYIZOBA, J.C.A.(Delivering the Leading Judgment): The 1st Respondent as Claimant instituted an action before the lower court by a writ of summons dated January 30, 2009 claiming the following reliefs in the Amended Statement of Claim at pages 185 -187 of the records:
1. “A declaration that the document dated the 16th day of April 2008 and alleged to have been written and executed by the late Fred Egbe of 4-6 Alexander Road, Ikoyi, Lagos was in fact not made by him.
2. Even if(which is not admitted) the said document was in fact made by the said Fred Egbe, the said document is invalid, null and void as to create a trust or constitute a will in respect of the Estate of the said Fred Egbe.
3. A declaration that the 1st -4th Defendants cannot act as Executors of the Estate of the deceased pursuant to the document dated 16th April 2008 as they were not in fact appointed Executors under the said document.
4. A declaration that the 1st -4th Defendants cannot act as Trustees of Fred Egbe Foundation as neither a Trust nor a Foundation was legally established by the deceased.
5. In the further alternative, even if claims 1,2,3 and 4 are resolved against the Claimant, a declaration that the said document only vests the 1st -4th Defendants with the power to dispose of the interest specifically granted to them with powers so to do and that all other assets vested in the 1st -4th Defendants as Trustees of the Fred Egbe Foundation but not specifically disposed of, will form part of the residuary Estate of the Deceased to be distributed to the Claimant and the 5th Defendant.
6. A declaration that Mr. Fred Egbe of 4 -6 Alexander Avenue, Ikoyi -Lagos who died in London on the 27th of May 2008 died intestate.
7. A declaration that the administration and distribution of the Estate of the late Fred Egbe is governed by the Administration of Estates Law of Lagos State and or its equivalent law under the Laws of Delta State.
8. A declaration that only the Claimant and the 7th Defendant are entitled under the provisions of the Law referred to in claim 7 above to succeed to the Estate of the said Fred Egbe.
9. A declaration that the 5th and 6th Defendants are not qualified and or competent to act as Administratrix of the Estate of Fred Egbe for reasons given in the Statement of Claim amongst others.
10. An order of court appointing the Claimant and the 7th Defendant as Administrator/Administratrix of the Estate of Fred Egbe.
11. An order of perpetual injunction restraining the defendants from interfering with and or intermeddling with the Estate of the late Fred Egbe.
12. An order directing the Defendants and more particularly the 6th Defendant to render an account of the properties and assets of the deceased in London, South Africa, Lagos, Warri and anywhere else in respect of which she has taken over and or disposed of since the death of the deceased and to pay over to the Administrators of the Estate of the deceased as are duly appointed by the court.
13. The sum of N25,000,0000.00 (Twenty Five Million Naira) or any amount as may be determined by this Honourable Court being the cost incurred in the prosecution of this action inclusive of legal fees.”
The 2nd to 5th Respondents who were the 1st to 4th Defendants at the trial court were described as relatives and children of friends of the deceased who caused a purported Will of the deceased to be read and were ready to apply for probate. The 1st Appellant, that is the 5th Defendant, was the 94 years old mother of the deceased while the 2nd Appellant, that is the 6th Defendant, is the half-sister of the deceased. The 7th Defendant now 6th Respondent in this appeal is the daughter and only certain surviving child of the deceased. The 1st Appellant died in the course of this appeal and was substituted by Executors of her Estate by order of the court made 21st May 2012.
The 1st Respondent upon filing the action also filed a Motion on Notice for interlocutory injunction wherein he asked for the following orders:
1. “An order of interlocutory injunction restraining the Defendants either by themselves, their agents and or privies from intermeddling with the Estate of the late Frederick Egbe pending the determination of this suit.
2. An order directing the Defendants particularly the 6th Defendant to file an account within 7 (seven) days of the making of this order of properties and assets of the deceased in Nigeria, London, South Africa or any other country which has come into her possession since the death of the deceased.
3. An order appointing the following to be the Interim Administrators of the Estate of the Deceased with powers to manage the said Estate pending the determination of this suit-
a. Dr. Eyimofe Atake SAN
b. Mr. J.B. Okele (Chartered Accountant and former Partner, Coopers and Lybrand)
c. Alhaji A.O. Shote (Principal Partner Shote & Co., Firm of Estate Surveyors)
4. An order directing that the law firm of the deceased, Fred Egbe & Co., shut down by the 6th Defendant be reopened immediately and that the management of the said firm be under the control of Interim Administrators appointed by the Court.
5. An order directing that all assets covered by prayer 2 above be handed over to persons appointed in prayer 3 above.
6. And for such order or further orders as this Honourable Court may deem fit to make in the circumstances.”
In the Affidavit in Support of the Motion sworn to by Etete Emmanuel he deposed inter alia as follows:
1. That I am counsel in the Chambers of Prof. A.B. Kasunmu SAN briefed by the Claimant in this action and I have the Claimant’s authority to depose to this affidavit.
2. That some of the facts deposed to in this affidavit are based on information given to Prof. A.B. Kasunmu SAN and myself, by the claimant, and his mother -Miss Adetoun Adesunloye which information I verily believe to be true.
3. That the other facts deposed to in this affidavit are derived from searches conducted by me at Corporate Affairs Commission in Abuja, the Land Registry in Lagos and from information given to me by the Claimant’s Solicitors and Agents in London and South Africa which information I verily believe to be true.
4. That based on the information derived from the facts stated in paragraphs 2 and 3 of this affidavit, the Claimant’s Statement of Claim has been settled and filed in this court. Now shown to me and marked as Exhibit ABK1 is a copy of the said Statement of Claim.
5. That I adopt as part of my affidavit all averments of facts as contained in the Statement of Claim.
6. That the deceased Mr. Fred Egbe died in London on the 27th of May 2008, and was at the time of his death living at 8 Hill Court, 34 Highgate Street, London.
7. That I am informed by Prof. A.B. Kasunmu SAN and I verily believe him that the keys to the deceased’s house in London were handed over to the 5th Defendant by a friend of the deceased (Mr. Peter Thomas) who also gave the 6th Defendant money with instructions to change the keys to the house in order to secure same.
8. That instead of doing this, the 6th Defendant used the opportunity of being in possession of the keys to enter the house and remove valuable materials from the house and the safe kept by the deceased.
9. That the movements of the 6th Defendant in and out of the house, was captured by CCTV camera installed in the block and also witnessed by the Porter and Housekeeper of the residence of the deceased.
10. That on one of the occasions when she went into the house of the deceased, the 6th Defendant went with a gentleman whom she introduced to the Porter as her son to remove valuable paintings and other movable items packed in boxes from the house.
11. That the paintings removed are those mentioned on page 2 of the document said to have been made by the deceased on 16th April 2008. Now shown to me and marked Exhibit ABK2 is a letter written by Nichollos (a firm of investigators) to Bower Cotton Khaitan, Solicitors acting for the Claimant confirming the removal of the paintings and other items by the 6th Defendant.
12. That I am informed by those who are close to the deceased and have seen the paintings and knew when they were bought that the value of the paintings so removed are in excess of (?6,000,000.00) Six Million Pounds.
13. That it was on one of the visits to the London house of the deceased that the 6th Defendant and her son sold the Mercedes car in the house for about (?85,000.00) Eighty Five Thousand Pounds.
14. That the 6th Defendant has neither made any inventory of all the items removed by her nor has she given an account of all the money she removed from the houses of the deceased.
15. That the properties at 8 Hill Court, 34 Hillgate Street, London is not registered in the name of the deceased but in the name of one of the companies in which he is a Director and Shareholder i.e. Ghorodemi Limited. Now shown to me and marked Exhibit ABK3 is a copy of a search conducted at the Lands Registry in London.
16. That Ghorodemi Limited is a Property Investment Company incorporated in 1994 and the Directors and Shareholders of the Company as at when the deceased died in May 2008 are as follows:
a. Directors (1) Mr. Fred Egbe (Now deceased)
(2) Madam Cathrin Efejuku (5th Defendant)
b. Shareholders (1) Mr. Fred Egbe (Now deceased)
(2) Madam Cathrin Efejuku (5th Defendant)
17. That the 6th Defendant is now making an effort to sell the property in London by getting herself appointed by the 5th Defendant as a Director of Ghorodemi Limited knowing fully well that the resolution passed appointing her as Director of the Company is irregular, illegal, null and void. Now shown to me and marked Exhibits ABK4 and ABK5 are documents and letters in proof of this averment.
18. That in addition to the above, the 6th Defendant is also working in concert with one Dr. Fred Esiri who went to South Africa and attempted to take over the deceased property there and to whom the 7th Defendant was said to have given a power of attorney to represent her interest in the Estate of the deceased. The said Power of Attorney is now shown to me and marked Exhibit ABK6.
19. That on the 19th of September 2008, my colleague- Miss T.A Adesanmi was present in the office of Counsel for the 1st -4th Defendants at Festival Road, Victoria Island when the document dated 16th April 2008 alleged to be the Will of the deceased was read and Counsel Notes as recorded by her on that day is now shown to me and marked Exhibit ABK7.
FRED EGBE & CO
20. The deceased was at the time of his death living in Nigeria at 4 -6 Alexander Road, Ikoyi, Lagos and practicing as a Legal Practitioner under the name and style of Fred Egbe & Co at Itiku House No. 28 -30 Macarthy Street, Lagos.
21. That there are some Legal Practitioners and other employees working with the deceased in Fred Egbe & Co., serving some corporate and non-corporate clients.
22. Immediately on the death of the deceased and without any authority from anyone, the 6th Defendant went into the office of the deceased at Itiku House and removed all valuables and money from his office and proceeded thereafter to close the Chambers which Chambers has not functioned since then.
OTHER ASSETS OF THE DECEASED
23. That I am informed by the Claimant that in the absence of an order for complete disclosure by the 6th Defendant, it is not possible for the beneficiaries to know all the assets of the deceased since the 6th Defendant has gained control of all documents from the office and residence of the deceased in Lagos and London.
24. That the declaration of assets form filled for the grant of Letters of Administration is silent on the personal bank accounts held by the deceases in banks in Nigeria and outside of Nigeria.
25. That the bulk of the assets of the deceased in Nigeria consist of shares held and Property Investment Companies and other commercial organizations in Nigeria.
25. That the 6th Defendant because of information derived from her unlawful search of the office of the deceased in Lagos, has disposed by way of sale, a landed property in Warri belonging to the deceased for N110,000,000.00 (One Hundred and Ten Million Naira) and has not accounted to anyone for the sum so received.
26. That in Layinka Estates Limited, the deceased and one Mr. Hendrick Schep were the existing Shareholders and Directors as at May 2008 when the deceased died.
27. That unknown to other members of the family and the beneficiaries, (that is the Claimant and 7th Defendant) the 6th Defendant caused Mr. Hendrick Schep to appoint her as a Director and signatory to the account of Layinka Estates Limited knowing fully well that the appointment is illegal, irregular, null and void.
28. That now shown to me, and marked as Exhibits ABK8 and ABK9 are copies of Board Resolution Appointing the 6th Defendant as a Director of Layinka Estates Limited and Claimant’s Counsel’s letter challenging the said appointment.
29. That consequent upon this appointment, the 6th Defendant has signed out cheques from the account of the company.
30. That the Defendants and agents acting on their behalf have also made attempts to enter and take over the deceased house in South Africa and have also made attempts to dispose of the deceased cars in South Africa.
31. That having regard to the nature of the assets of the deceased, it is in the interest of the Estate that Interim and Neutral Administrators be appointed to take over the custody and management of the estate pending the determination of this suit.
32. That the persons proposed by the Claimant are the following:
a. Dr. Eyimofe Atake, (A Senior Advocate of Nigeria)
b. Mr. J.B. Okele,( a member of the Institute of Chartered Accountants of Nigeria and former Partner of Coopers & Lybrand)
c. Alhaji A.O. Shote (A Fellow and former President of the Institute of Chartered Surveyors).
33. That I am informed by the Claimant and the mother that the 5th Defendant who is now about 94 years old cannot and has not denied knowledge of the Claimant as the son of the deceased.
34. That I am informed by the mother of the Claimant that it is the 6th Defendant who because of what she intends to gain from the Estate that is now responsible for spreading the rumour that the Claimant is not a son of the deceased which she knows is not correct as she has on various visits to the Claimant’s mother collected pictures of the Claimant on the ground that the 5th Defendant wanted to have pictures of all her grand children.
35. That I swear to this affidavit in good faith believing the contents to be true and in accordance with the provisions of the Oaths Act.
The 2nd Appellant as 6th Defendant made the following reactions, among others:
3. Paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14, 17, 18, 22, 23, 24, 25a, 26, 27, 30, 31, 33, 34 and 35 of the said affidavit are not true.
4. To the best of my knowledge, information and belief, based upon categorical statements made to me by the deceased himself, the Claimant is not the son of the deceased nor was he ever acknowledged by the deceased as his son during the deceased’s lifetime. In this connection, I say further as follows:
a. The deceased had only two children, namely Rachel Egbe and the 7th Defendant, both children of his marriage to Caroline Egbe, which marriage was dissolved in March 1992. Rachel Egbe died in 1993, leaving the 7th Defendant as the deceased’s only surviving child.
b. The deceased admitted to me that he had had a relationship with Ms. Adetoun Adesunloye, the mother of the Claimant, but categorically and emphatically denied that the Claimant was his son, and stated so in writing on more than one occasion.
c. Indeed, contrary to the suggestion that the deceased “never denied” that the Claimant was his son alleged by Chief Hope Harriman and Olayiwola Kusamotu Esq., the deceased on several occasions rejected the attempt by Ms. Adesunloye to pass the Claimant off as his son.
d. Now produced and shown to me marked ‘BG 1’ and ‘BG 1a’ are a copy of a letter that the deceased wrote to Ms. Adesunloye on the 23rd of December 1982, and the memorandum sent to him by his clerk, S. A. Lasisi, in respect of his delivery of the said letter to Ms. Adesunloye.
e. I knew Ms. Adesunloye apart from her relationship with the deceased, so when I learned that she was saying that the Claimant was the son of the deceased, I was sympathetic and raised the matter with the deceased. The deceased was extremely angry that I had raised the issue, and my attempt to do so resulted in some serious estrangement between us for a while. The deceased warned me to have nothing more to do with Ms. Adesunloye.
f. In 1986, at the time when Ms. Adesunloye claims that the deceased advised her to change the Claimant’s name by deed poll, the deceased had again written to her warning her to stop deceiving the Claimant into believing that he was the deceased’s son. A copy of a letter dated 6th January 1982 that he sent to Ms. Adesunloye to that effect is now produced and shown to me marked “BG 2”.
By paragraph 5 of the Affidavit in Support of the Motion on Notice for interlocutory injunction the Claimant adopted the Statement of Claim attached as Exhibit ABK 1 as part of his affidavit in Support of motion.
All the parties herein filed Counter-Affidavit to the Motion for Interlocutory injunction but it was only the Appellants that initially out-rightly opposed the making of any restraining order of injunction.
The gist of the case of the 1st Respondent as shown in the affidavit above is that he is the son of Mr. Fred Egbe who died in London on 27th May 2008 and who had interests in various property companies in Nigeria, London and in South Africa. He claimed that at the time of his death the deceased was living at 8 Hill Court, 34 Highgate Street, London and also at 4/6 Alexander Avenue, Ikoyi, Lagos. The Appellants who were the 5th and 6th Defendants at the trial court insisted that the 1st Respondent was not the son of the deceased though it was admitted in paragraph 4(b) of the Counter-Affidavit of the 2nd Appellant that the deceased informed her that he had a relationship with Ms. Adetoun Adesunloye, the mother of the 1st Respondent, he categorically and emphatically denied that the 1st Respondent was his son.
In the Counter-Affidavit filed on behalf of the 2nd to 5th Respondents who were the 1st to 4th Defendants at trial court, they asserted that the 1st Respondent was not one of the persons mentioned by the deceased as beneficiary in his will and that the deceased did not acknowledge him as his son in his life time. They were only opposed to the making of the order of injunction against themselves, but wanted the order made against the Appellants. They agreed to the appointment of interim administrators and accepted two of the persons proposed by the 1st Respondents and also proposed two other persons to represent their own interests. In the Counter-Affidavit filed on behalf of the 6th Respondent who was the 7th Defendant at trial, she admitted paragraphs 6, 7, 8, 13, 14, 15,16, 17, 20, 21, 22, 23, 24, 25a, 26, 27, 28, 29, and 31 of the Affidavit in Support of Motion as true. She was not in the position to deny or confirm paragraphs 9, 10, 11, 12, 19, 33 and 34 of the Affidavit. She was in favour of granting the order of injunction and also proposed that the court appoints one nominee from the 1st Respondent, one nominee from the 2nd to 5th Respondents, one nominee from the Appellants and one nominee from herself as interim administrators of the Estate of Fred Egbe.
It must be noted at this stage that the Appellants at page 345-374 filed a Motion on Notice dated 3rd June 2009 wherein they prayed the trial court as follows:
“1. AN ORDER appointing the Administrator-General of Lagos State as interim administrator of the estate of the deceased pending the determination of the substantive suit;
2. AN ORDER appointing four (4) joint administrators to administer the estate of the deceased pending the determination of the substantive suit, one of each such administrator to be nominated by the Claimant; the 1st-4th Defendants; the 5th and 6th Defendants and the 7th Defendant respectively.”
This application has not been moved and argued by the parties.
After several other applications were filed and argued including the application dated 11/09/09 filed by the Appellants by which they challenged the locus standi of the 1st Respondent to bring the action and also sought that the case be struck out on the ground that the 1st Respondent’s real name is Peter James Aziza and not Peter James Asifo-Egbe by which the action was filed. In its ruling delivered on the 8th day of March 2010 the trial court refused the application holding that the 1st Respondent has locus to bring the action. The trial court had granted an application for amendment of the names of the 1st Respondent from Peter James Asifo-Egbe to Peter James Aziza.
It was after all these that the current application dated 6th February 2009 was argued by the parties. In its ruling delivered on the 9th December, 2010, the trial court granted the application and made the following orders at pages 751 -752 of the records:
“1. An order of interlocutory injunction restraining the Defendants either by themselves, their agents and or privies from intermeddling with the estate of the Late Fredrick Egbe pending the determination of the suit.
2. An order directing the Defendants particularly the 6th Defendant to file an account within 7 days of the making of this order of properties and assets of the deceased in Nigeria, London, South Africa or any other country which has come into her possession since the death of the deceased.
3. An order appointing the following to be Interim Administrators of the Estate of the deceased with powers to manage the said Estate pending the determination of this suit.
Mr. Seyi Sowemimi (SAN) as suggested by the 7th Defendant.
Alhaji Shote a Chartered Estate Surveyor as suggested by the Claimant.
Mrs. Stella Marie Awani
Mr. J. B. Okele, Chartered Accountant.
A Chartered Accountant to be nominated by the 5th and 6th Defendants within 7 days of this ruling failing which the other nominees shall immediately function as the Interim Administrations of the Estate of Late Fred Egbe.
4. An order directing that the law firm of the deceased, Fred Egbe & Co. Shut down by the 6th Defendant be reopened immediately and that the management of the said firm be under the control of the Interim Administrator appointed by this Honourable Court.
5. An order directing that all assets covered by prayers 2 above be handed over to persons appointed in prayer 3 above.
6. The Claimant/Applicant shall enter into an undertaking as to damages in case this order should not have been granted.”
The Appellants being dissatisfied with the ruling initially filed a Notice of Appeal on the 16th of December, 2010 which contained only four grounds of appeal. On the 20/04/11 the Appellant filed an amended Notice of Appeal containing seven grounds of appeal pursuant to the leave granted by this Honourable Court. In the brief of argument filed by the Appellants in support of the appeal they formulated five issues for determination which are as follows:
i. Did the lower court properly exercise its discretion to grant Orders of Interlocutory Injunction in favour of the 1st Respondent when the question of his legal right had not been determined? (Distilled from ground 1 of the Notice of Appeal)
ii. Considering that 1st Respondent’s substantive action relates to the question of his paternity and legal right to the deceased’s estate, did the lower Court predetermine the substantive suit by holding that the 1st Respondent has an established legal right to the grant of interlocutory injunction? (Distilled from ground 3 and 5 of the Notice of Appeal)
iii. Did the lower court properly exercise its discretion to appoint Interim Administrators based on evidence which relates to company’s real assets or to grant injunction in respect of assets which are not comprised in the deceased’s estate? (Distilled from ground 2 of the Notice of Appeal)
iv. Did the lower court properly exercise its discretion to grant interlocutory injunction based on 1st Respondent’s defective affidavits; or to resolve conflicts in the affidavits of parties in favour of the 1st Respondent without taking oral testimony or any further evidence? (Distilled from ground 4 and 6 of the Notice of Appeal)
v. Did the lower court validly exercise its discretion to appoint non-legal practitioners as Interim Administrators to open, manage and control the law firm of Fred Egbe & Co? (Distilled from ground 7 of the Notice of Appeal)
The 1st Respondent on his part formulated these issues as arising for determination of the appeal:
“[1] whether the lower court was right in granting the Interlocutory Injunction and proceeding to appoint Interim Administrators as requested for by all the parties herein
[2] whether the order of the Court that the Law Firm of the deceased be re-opened and ‘the management of the said Firm be under the control of the Interim Administrators appointed by the court, tantamount to the Administrators running the Law Firm and thus contravene the provisions of the Legal Practitioners Act and the Rules of Professional Conduct.”
The 2nd to 6th Respondents all adopted the issues formulated by the Appellant.
The 1st Respondent raised preliminary objection to the appeal of the Appellants while the Appellants in turn raised preliminary objections to the briefs of all the Respondents.
The Preliminary Objections
1st Respondent’s Preliminary Objection:
The 1st Respondent in arguing his preliminary objection identified the following issues as arising for determination therefrom:
(1) Whether or not in the light of the above stated facts, the present Appellants did not consent to the order made by the High Court of Lagos State at pages 733 -752 of the Record.
(2) If the answer to (1) above is positive whether or not the appeal herein is competent in the light of section 241(2)(c) of the 1999 Constitution.
Arguing the two issues jointly, the 1st Respondent contended that by virtue of section 241(2) (c) of the 1999 Constitution leave of court is required for one to appeal against a decision made with consent of parties. The learned Senior Counsel for the 1st Respondent referred to the cases of Abdulkarim v. Incar Nig Ltd (1992) 7 NWLR (pt.251) 1and National Water Resources Development v. Jaiyesimi (1963) 2 SCNLR 37 at 39.
He referred to page 366 of the record of appeal to the Motion on Notice dated 3rd June 2009 filed by the Appellants praying for appointment of Administrator-General as interim administrator and specifically to the written address filed in support of the application where the Learned Senior Counsel for the Appellant requested for appointment of interim administrators to preserve the estate of the deceased based on the alleged conduct of Dr. Esiri, the attorney of the 6th Respondent. The learned Senior Advocate of Nigeria also referred to page 367 to 368 wherein the Appellants’ counsel stated that the other parties had made similar requests for appointment of Interim Administrator.
He submitted that these demonstrate the consensus of all parties to appointment of interim administrators. The court was urged to conclude that the Appellants did not oppose the need to preserve the Estate of the deceased and also consented thereto by appointment of interim administrators in an all-inclusive manner. Counsel argued that consent can take any form and that the Appellants are bound by the submissions of their counsel. It was submitted that all the parties to the suit consented to the appointment of interim administrators to preserve the estate and that the Learned trial judge did not adjudicate on any of the two issues namely (a) the need to preserve the estate, (b) appointment of interim administrators to preserve the estate. The court was urged to hold that there was some modicum of agreement reached by all the parties to the action and that the orders made as suggested by parties was indeed consent judgment. It was then submitted that since the Appellants never sought leave to appeal against the consent judgment the appeal is incompetent and must be struck out.
The Learned Senior Advocate for the Appellants responded to the Preliminary Objection of the 1st Respondent in their Reply Brief of Argument dated 6th September, 2011 and contended that the ruling delivered on the 9th December, 2010 (the subject-matter of this appeal) was not a consent judgment for which leave to appeal is required. He argued that all the Defendants at the trial court filed Counter-Affidavits and written addresses to the application for injunction. He referred to the cases of Vulcan Gases Ltd v. G. F. Ind. A. G. (2001) 9 NWLR (pt.719) 610 at 645 and Woluchem v. Wokoma (1974) 3 S. C. 153 as to meaning of consent judgment to show that the decision of the trial court did not amount to consent judgment.
Counsel further referred to section 241(1) of the 1999 Constitution to submit that the ruling, the subject matter of the appeal was one on grant of injunction and as such no prior leave of court is required in order to file appeal against it. He referred to the Motion on Notice dated 3rd June 2009 filed by the Appellants praying for appointment of Administrator-General as interim administrator and submitted that the application was presented on clearly different terms and basis from the 1st Respondent’s application. He submitted that the cases cited by the 1st respondent’s counsel are not applicable to the facts of this case. Counsel urged the court to strike out the 1st Respondent’s Preliminary Objection.
In SPDCN Ltd v. Azukaeme (2011) 9 NWLR (pt.1252) 360 at 373, Eko, JCA defined consent judgment thus:
“Consent judgement, in its ordinary or natural meaning, therefore is a judgment, decision or order which parties in litigation voluntarily agreed to be entered for, against or between them.”
At page 374 paragraph A his Lordship held that for there to be consent judgment, there must be consensus ad idem between the parties.
In the case of Vulcan Gases Ltd v. G. F. Ind. A. G. (2001) 9 NWLR (pt.719) 610 at 645, Iguh JSC said:
“In order to have a consent judgment therefrom, the parties must reach a complete and final agreement on the vital issues in their terms of settlement. They must be ad idem as far as the terms of their compromise agreement are concerned and their consent must be free and voluntary. The consent judgment emerges the moment the court on the application of the parties enters such compromise agreement as the judgment of the court.”
In the instant case, it is clear that all the parties herein never completely agreed at any time on the terms of any compromise between them. The Appellants vehemently opposed the application of the 1st Respondent. Though, they have a similar application for preservation of the estate of the deceased, the reliefs sought by them differ from those sought by the 1st Respondent. It was not on the records that there was any time serious negotiations were made for amicable resolution of this matter by the parties nor were the terms of any agreement reached between them towards settlement made available to the trial court and the court requested to make the agreement the consent judgment of the court. I am of the view that in the light of the cases considered that the decision of the trial court which is the subject of this appeal is not a consent judgement or order for which leave is required for appeal.
Further to the above, section 241(1) (f) (ii) of the 1999 Constitution states:
“(1) An Appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases-
(f)(ii) Where an injunction or the appointment of a receiver is granted or refused.”
This case falls squarely within this provision. This was an appeal against grant of injunction which falls within the class of decision for which a party intending to appeal against such decision needs no leave to appeal. Based on the above, the objection of the 1st Respondent to the competence of the Appellant’s appeal fails and is hereby dismissed.
Objection of the Appellant to the 2nd -5th Respondents’ Brief of Argument.
The Appellant raised objection to the 2nd -5th Respondents’ Brief of Argument contending that the 2nd -5th Respondents in their Brief of Argument changed from the case they made at the trial to the effect that the deceased did not acknowledge the 1st Respondent as his son to present a different case before this court where they referred to the said 1st Respondent in paragraphs 1.1, 2.1, 3.1 -4.9 of their brief of argument as son of the deceased. The learned Appellants’ counsel referred to paragraphs 4, 6 and 8 of the Counter-Affidavit filed on behalf of the 2nd -5th Respondents where they said that he was not acknowledged as a son. He then referred to the case of Osuji v. Ekeocha (2009) 16 NWLR (pt.1166) 81 where it was held that a party cannot make a different case from the case he made at trial. He referred also to Oshoboja v. Amuda (2009) 18 NWLR (pt.1172) 188 at 213 and Ajide v. Kelani (1985) 3 NWLR (pt.12) 248.
Although the 2nd -5th Respondents did not respond to this objection, it appears to me that what the said 2nd-5th Respondents did that is being complained about does not amount to changing the case they are making but to admission of the case the 1st Respondent is making against them. While a party may not be at liberty to change the case he is making, he is permitted to admit the case of his opponent at any stage of the case. I therefore overrule the objection of the Appellants to the Brief of the 2nd -5th Respondents on this ground.
It must be noted that the Appellant also argued in their Reply Brief to the 1st Respondent’s Brief that the 1st Respondent did not address Appellants’ issues I, II, III and IV and therefore he must be deemed to have admitted them. I must state that I do not entirely agree with the Appellant in this regard. In my view, the way issue 1 in the 1st Respondent’s Brief is framed, it covers issues I, II and III of the Appellants Brief which all deal with the matter of proper exercise of discretion to grant injunction. I therefore hold that the 1st Respondent’s brief addressed issues I, II and III of the Appellants Brief. How far and well it did so is a different matter altogether. It is only Appellant’s issue IV that the 1st Respondent did not address in his Brief, but since this appeal concerns other parties and not only the 1st Respondent, I refrain from making any decision at this stage.
Objection of the Appellant to the 6th Respondent’s Brief of Argument.
The Appellant has contended in this objection that instead of the signature required on the 6th Respondent’s Brief of Argument it was stamped with the inscription “Original Signed by E. O. Sofunde, SAN” without the learned SAN actually signing the process. He referred to the unreported decision of this Honourable Court, Lagos Division in EPT/CA/003/03: Williams v. Tinubu decided on 18th July 2003 where, it was submitted, the court decided categorically that a process bearing “Original Signed by Tunji Ayanlaja, Esq, SAN” was not signed as required by law and was struck out. He urged the Court to strike out the said 6th Respondent’s Brief of Argument. In response to the objection, the learned SAN for the 6th Respondent caused to be filed an ‘Affidavit of Facts to Verify the Signing of Original Brief Dated 4/7/11′ sworn to by David Ubong wherein the deponent asserted that the Learned SAN for the 6th Respondent signed in his presence the original copy of the said 6th Respondent’s Brief of Argument which he filed. A certified copy of the said 6th Respondent’s Brief of Argument was attached as Exhibit DA. Based on the foregoing, the 6th Respondent who filed a Brief of Argument in response to the Appellants’ Preliminary Objection with leave of court urged the Court to examine the records to see that the original copy of his brief was signed by him unlike the case of Williams v. Tinubu (supra) where the original brief was not signed. He quoted extensively from the case of Williams v. Tinubu to show that the decision in that case was made because the Appellant did not refute the positive averment in an affidavit filed at the lower court to the effect that the original copy of the petition filed was not signed by counsel.
The decision in Williams v. Tinubu (supra) is to the effect that where the original of a court process is not signed by counsel but merely stamped, as in that case, “Original Signed by Tunji Ayanlaja, Esq, SAN” it is incompetent and must be struck. That decision is founded on the principle that signature of counsel is required on court process and where it is absent; the inscription “Original Signed by Tunji Ayanlaja, Esq, SAN” cannot take its place. I must say that by virtue of exhibit DA, it is beyond question that the original copy of the 6th Respondent’s Brief of Argument was signed by counsel. The case of Williams v. Tinubu is therefore distinguishable. Thus the objection of the Appellant here also fails and it is dismissed.
The Main Appeal.
In the determination of the appeal I will adopt the issues formulated by the Appellant.
Issue (i):
Did the lower court properly exercise its discretion to grant Orders of Interlocutory Injunction in favour of the 1st Respondent when the question of his legal right had not been determined?
APPELLANTS ARGUMENTS:
Arguing this issue, learned counsel for the Appellants Prof. Yemi Osinbajo, SAN contended that the trial court improperly exercised its discretion to grant injunction in favour of the 1st Respondent when the issue of his legal right to the estate of the deceased had not been determined. It was submitted that the law is that injunction will only be granted to support existing legal right and so the most important consideration in such application is for the applicant to show that he has a legal right which is threatened. Learned Senior Counsel cited Ojukwu v. Governor of Lagos State (1986) 3 NWLR (pt.26) 39; Obeya Memorial Hospital v. Attorney -General of Federation (1987) 3 NWLR (pt.60) 325; Kotoye v. CBN (1989) 1 NWLR (pt.89) 419; Adah v. Adah (2001) 5 NWLR (pt.705) 1; 7up Bottling Co Ltd v. Abiola (1995) 4 NWLR (pt.389) 287.
It was further submitted that at the time of grant of the interlocutory injunction in this case the 1st Respondent had not established his legal right to the deceased estate and that as a matter of fact such right does not exist as the only basis for the claim is the controversial DNA report.
It was further submitted that it was wrong for the trial judge to have granted injunction where the 1st Respondent was relying on facts contained in the Statement of Claim to demonstrate his legal right as the main affidavit in support of the application for injunction did not contain facts showing the applicant’s legal right except the ‘dubious’ incorporation by reference of the Statement of Claim. It was submitted that the trial court was determining the Statement of Claim as proving a legal right without trial which is a fatal error. Counsel submitted with much force that until paternity is determined in the positive, there is no legal right and that the 1st Respondent is therefore a stranger to the estate of the deceased without any right worthy of protection. Reference was made to the case of Green v. Green (2001) 45 WRN 90 @ 105-106 which case, it was submitted is apt in determination of this appeal.
1ST RESPONDENT’S ARGUMENTS
Learned Senior Counsel for the 1st Respondent Prof. A.B. Kasunmu, SAN formulated only two issues in the 1st Respondent’s brief of argument. Learned senior counsel submitted that it is important to note that the order of injunction sought was against all the Defendants and not only against the Appellants but that the irony is that it is only the Appellants who are not making any claim to the estate except the right to administer it that are complaining against the injunction granted. Learned Senior counsel submitted that the application for appointment of interim administrators was not only made by the 1st Respondent but also by the 6th Respondent and 2nd -5th respondents. He further submitted that under Order 38 Rule 4 of the High Court Rules the trial Court had the power to grant the injunction prayed for.
It was also submitted that the Appellants in their application dated 39(sic) June 2009 suggested that all parties including the 1st Respondent should nominate a minimum of one interim administrator that are now opposed to the appointment made by the court which amounts to making a ‘volte face’
He then submitted that the trial judge rightly granted injunction in all the circumstances and therefore the subsequent order of interim administrators inevitably follows. The Learned senior counsel for the 1st Respondent argued that the Appellants saw the need for preservation of the entire estate in order for them at the end of litigation to see what to manage/administer. He argued that the Appellants wanted the court to drive the 1st Respondent from the seat of justice at this stage of the proceedings by giving effect to documents exhibited to their Counter-Affidavit by taking as established the contention that the 1st Respondent was never the son of the deceased.
He then submitted that the highest the Court would make of the Counter-Affidavit of the Appellants is that it established that there are serious issues for trial which the trial court rightly appreciated and reserved same for trial.
It was thus submitted that the Appellants have suffered no miscarriage of justice. The learned Senior Counsel submitted that the main ground of opposing the application by the Appellants was that the 1st Respondent must first establish that he is a child of the deceased before he could lay claim to the estate. He said that this was the sum of the arguments of the Appellants in their issues 1 and 2, the position the Appellants had urged on the court in their application dated 11th September, 2009 which the trial court rejected in its ruling of 8th March 2010 where it held that the issue of paternity is interwoven with 1st Respondent’s right as beneficiary and should be determined together. Counsel submitted that the Appellants have not appealed against this decision and that given this scenario it cannot be argued by them that the trial judge was in error in granting the injunction. Counsel urged this court to consider the reasons why the trial judge granted injunction which are at page 750, paragraph 2 of volume 2 of the record of appeal. He submitted that the trial court did not pre-determine the issue of paternity. Rather the learned trial judge was justified in granting the interlocutory injunction to ensure that the estate was not dissipated pending the determination of paternity and the substantive suit.
2ND -5TH RESPONDENTS’ ARGUMENTS:
Learned Senior Counsel for the 2nd-5th respondents Chief Bolaji Ayorinde SAN in his brief contended that the 1st Respondent is the son of the deceased and thus a major beneficiary to the estate and that the essence of his motion is to protect the estate of the deceased from intermeddling by the 2nd Appellant. He submitted that the 1st Respondent has by the affidavit evidence before the court established his legal right to warrant grant of injunction. He submitted that the applicant for injunction need not at this stage show a prospect of obtaining a permanent injunction at the end of the trial. The court need not put itself in a position to determine the merits of the matter at that stage. ACB v. Awogboro (1991) 2 NWLR (pt.176) 711. Counsel submitted that injunction can be granted to protect the legal or equitable right of the applicant. Victory Merchant Bank v. Pelfaco (1993) 9 NWLR (pt.317) 340 and Nwannewuihe v. Nwanewuihe (2007) 16 NWLR (pt.1059) 1 were cited.
6TH RESPONDENT’S ARGUMENTS
E. O. Sofunde SAN for the 6th Respondent in his Brief contended that the submission of the Appellants that injunction can only be granted to protect established right was supported with the cases of Adah v. Adah (supra) and Green v. Green (supra) which were cases where the trial court considered permanent injunction in the final judgment as such theses cases are not applicable to this case. He outlined the considerations for grant of injunction and submitted that they do not include establishing legal right at that stage and that what is meant by injunction being granted in support of legal right is that a prima facie case be established or that a triable issue must be established. This is because injunction is not supposed to be proved at this stage. Counsel cited Kotoye v. CBN (supra) ; Falomo v. Banigbe (1998) 7 NWLR (pt.559) 679; Onyesoh v. Nnebedun (1992) 6 NWLR (pt.229) 315; Akapo v. Hakeem-Habeeb (1992) 6 NWLR (pt.247) 226 at 289 and 291; Agbakoba v. SSS (1993) 7 NWLR (pt.305) 353 at 367; Akinpelu v. Duwin Pharm. & Cosmetics Ltd (1077) 376.
Counsel submitted that the complaint of the Appellants that the 1st respondent was relying on incorporation by reference in his affidavit to the Statement of Claim to establish legal right is wrong and submitted that the contention overlooks the fact that the court must look at the affidavit, writ and pleadings in the exercise and referred to Saraki v. Kotoye (1990) 4 NWLR (pt.143) 144 at 170 and ACB Ltd v. Awogboro (1996) 3 NWLR (pt.437) 383 at 392 and 393.
RESOLUTION:
While the Appellant contends that the 1st Respondent must establish his legal right before grant of injunction in his favour, the Respondents are of the contrary view. It is not in dispute that the law is that at the stage of making interlocutory decisions, a court of law is bound to exercise caution not to prejudge issues that would arise for decision at trial of the substantive case. In view of this accepted principle of law, it seems to me that a court of law will not require clear proof or establishment of legal right before injunction is granted in an appropriate case.
The opinion of the Supreme Court in the case of Akapo v. Hakeem-Habeeb (1992) 6 NWLR (pt.247) 226 is instructive in this matter. The Court said per Karibi-Whyte, JSc at page 295D-H:
“It is important to bear in mind that the allegation of improprieties against the appellant constitutes the entirety of the substantive claim before the Court. The Court is not at this stage of the proceedings concerned with the proof of the allegations or effective denials of them. The appellant is not being required to establish their refutal. These are matters to be dealt with at the trial. The application before the Court is for an interlocutory injunction. Formerly, all that an applicant was required was to establish a prima facie case, see D. C. Thomson & Co. Ltd v. Deakin (1952) 1 Ch. 656 or as in Preston v. Luck (1884) 27 Ch. D. 497, 505-6, that there is a strong probability that the Applicant is entitled to relief. The question of a strong prima facie case was stated by Atkin LJ in 1924 in smith v. Grigg Ltd (1924) 1 KB 655 at p. 659.
It seems to me from Kufeji v. Kogbe (1961) 1 All NLR 113, John Holt Nigeira Ltd & Anor. V. Holts African Workers Union (1963) 2 SCNLR 383, to Ladunni v. Kukoyi (1972) 1 All NLR (pt.1) 133, the test of a prima facie case of the probability that the claim would succeed was applied. In 1987, in Obeya memorial Hospital v. Attorney-General for the Federation & Anor. (1987) 3 NWLR (pt.60)325, this Court adopted the new test formulated by the English House of Lords in American Cyanamid Co. V. Ethicon Ltd (1975) 1 All ER 504, where it was stated to be as follows:
The Court must no doubt be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried.’
This principle was also applied in Kotoye v. CBN Ltd (1989) 1 NWLR (pt98) 419.”
The clear statement of the law by the Supreme Court in this case shows that:
1. The court is not at this stage of the application for injunction concerned with proof of the allegations contained in the affidavit in support of motion or the effective denials of them;
2. Court is concerned with establishment by the applicant that there are serious issues for trial.
Thus in this case, all that the 1st Respondent needs to establish is evidence of his right, a breach of which is being threatened. He need not establish the right at this stage. He only needs to establish that his claim of threatened breach of the right is not frivolous. In other words, there is a serious issue for trial. What are the facts in this case? The 1st Respondent claims that he is a son of the deceased which was denied by the Appellants. However, the 2nd Appellant in her affidavit acknowledged that the deceased told her that he had an affair with the mother of the 1st Respondent. See page 48 of the records, lines 1-4. In the Reply to Counter-Affidavit of the 5th -6th Defendants (that is Appellants) dated 3rd June 2009, it was strongly asserted on behalf of the mother of the 1st Respondent that he is a product of that relationship. In my view this shows that the case or claim of legal right to the estate of the deceased by the 1st Respondent is not frivolous and that there is a serious issue for trial. These are not matters that can be resolved at this interlocutory stage but are matters the court will consider in determining whether there is a serious issue to be tried. The case of Jabre v. Jabre (1999) 3 NWLR (Pt. 596) 606 @ 619 -621 is distinguishable. The grant of the interlocutory injunction here does not confer any immediate benefit on the 1st Respondent. The order for maintenance of the spouse in Jabre conferred an immediate benefit to the spouse when the court was yet to determine the validity of the marriage. I have no difficulty whatever in holding that in the circumstances of the instant case, the question of the legal right of the 1st Respondent need not be proved at this stage before injunction is granted.
The contention of the Appellants that the 1st respondent was relying on incorporation by reference in his affidavit to the Statement of Claim to establish legal right is adequately answered by the arguments of learned Senior Counsel to the 6th Respondent who stated that the contention overlooked the fact that the court ought to look at the affidavit in support of motion along with the pleadings of the applicant in the exercise of discretion to grant or refuse the injunction. See Saraki v. Kotoye (1990) 4 NWLR (pt.143) 144 at 170 and ACB Ltd v. Awogboro (1996) 3 NWLR (pt.437) 383 at 392 and 393. Issue one is resolved against the Appellants.
Issue (ii):
Considering that the 1st Respondent’s substantive action relates to the question of his paternity and legal right to the deceased’s estate, did the lower Court pre-determine the substantive suit by holding that the 1st Respondent has an established legal right to the grant of interlocutory injunction?
This issue is very closely related to the first issue which has been determined by me. Having reviewed the arguments of counsel on the first issue, I need not do the same under this issue. Going through the ruling of the trial court, I did not see where the trial judge pre-judged the issue of legal right which it expressly stated is for resolution at the trial. The trial court said at page 748-749 of the records:
“The Court has perused the claim of the Claimant as stated out in his Statement of claim and this is adequate for the Court to consider the exercise of the court’s discretion in his favour. The issue of the claimant’s success or failure at the end of the trial is not for consideration at this stage of this interlocutory application. This Honourable Court had earlier ruled that the Claimant has the locus standi to institute this action and the success or otherwise is not for the Court to determine at this stage.”
There is no doubt that the trial court was very conscious of delving into the substantive case at the interlocutory stage and consistently warned itself. I understand in the con, that the statement of the trial court that the 1st Respondent has a legal right to be protected does not amount to a finding that he has proved that he is the son of the deceased. It only means that there is serious question to be tried. See page 748 of the records. Appellants also admit the approach of the trial court at page 11, paragraph 22 of their brief. It is clear that the trial court did not determine substantive issue at interlocutory stage in this case and the Appellants did not point out specifically in their brief where the trial court did so. The mere grant of interlocutory injunction in a deserving case ought not to be construed as pre-judging the matter. This issue must be resolved against the Appellant as well.
Issue (iii):
Did the lower court properly exercise its discretion to appoint Interim Administrator based on evidence which relates to company’s real assets or to grant injunction in respect of assets which are not comprised in the deceased’s estate?
APPELLANT’S ARGUMENTS:
In arguing this issue, the Appellants referred to paragraph 4(k) (i) & (ii) of the 1st Respondent’s Affidavit dated 19th November, 2009 to contend that the properties mentioned therein do not form part of the estate of the deceased but are owned by duly incorporated companies. Learned Senior counsel submitted that no individual shareholder owns a company. Okomu Oil Co. Ltd v. Iserhienrhien (2001) 6 NWLR (pt710) 686; Aso Motel Kaduna Ltd v. Deyemo (2006) 7 NWLR (pt.(78) 112. He therefore submitted that following the above cases the trial Judge improperly exercised his discretion to appoint administrators in respect of properties vested in a company and not comprised in the deceased estate. Counsel cited CBN v. SAP Nig Ltd (2005) 3 NWLR (pt.911) 206 and further submitted that the order of interlocutory injunction in the manner requested and granted by the lower court interferes with the running of companies. He Referred to Josien Holding Ltd v. Lornamead Ltd (1995) 1 NWLR (pt.371) 267 and submitted that the exercise of discretion by the trial Judge is improper in the circumstance.
2ND -5TH RESPONDENTS ARGUMENTS
In reaction to this issue, Chief Ayorinde SAN for the 2nd -5th Respondents submitted relying on Akapo v. Hakeem-Habeeb (1992) 6 NWLR (pt.247) 226 that the purpose of grant of injunction is to preserve the res and maintain status quo pending trial. He submitted that the issue whether the properties with respect to which interim administration order was made are stated in the affidavit before the Court to be assets of the estate of the deceased sought to be protected from dissipation as such the court has the power to preserve all the assets of the estate. It was submitted that the issue whether the court can grant relief affecting assets belonging to companies in which the deceased was only a share holder is a matter to be decided at trial.
6TH RESPONDENT’S ARGUMENTS
Mr. E. O. Sofunde SAN for the 6th Respondent tersely submitted under this issue that it has not been shown in the briefs of argument of the Appellant where in the ruling of the trial Judge she made orders with regard to the company assets. It is then submitted that though the postulation of the law is correct, it cannot avail the Appellants.
RESOLUTION:
The Orders granted by the learned trial judge are at pages 751 to 752 of the record of appeal. They all relate to the estate of the deceased and not to any company specifically. I have not seen anything in the order that extends beyond the properties comprised in the estate of the deceased. I agree with the learned counsel for the 6th Respondent that the cases cited do not avail the Appellants. The issue is resolved against the Appellant also.
Issue (iv):
Did the lower court properly exercise its discretion to grant interlocutory injunction based on 1st Respondent’s defective affidavits; or to resolve conflicts in the affidavits of parties in favour of the 1st Respondent without taking oral testimony or any further evidence?
APPELLANT’S ARGUMENT:
In arguing this issue, Prof Osinbajo for the Appellants submitted that substantial portion of the evidence presented by the 1st Respondent and upon which the trial court exercised its discretion is defective and invalid as a matter of law in that contents of affidavit should be restricted to factual accounts within the personal knowledge of the deponent except where the deponent states the source of his information. Also, extraneous matters by way of objection, prayer, legal argument or conclusion ought not to be contained therein. Counsel relies on sections 86, 87, 88 and 89 of the Evidence Act, Cap E 14 LFN 2004. He submitted that paragraphs 7-13, 17-18, 23, 25, 25a, 27, 29, 30, 31, 33 and 34 of the affidavit in support of the Motion for injunction fell short of the legal standard in that the facts are not within the personal knowledge of the deponent or his informant and the circumstances, basis of the information, time and place are not stated in the affidavit. He urged that these paragraphs be struck out. He relied on the cases of Bamaiyi v. State (2001) 8 NWLR (pt.715) 270 at 290; AG Adamawa State v. AG Federation (2005) 18 NWLR (pt.958) 581 at 667.
He submitted that apart from this the trial court drew conclusions from conflicting affidavit of the parties without recourse to further evidence oral or documentary by finding that the 2nd Appellant closed the law firm of the deceased a fact which was controverted by the Appellants. It is submitted that where there are conflicting affidavit evidence as in this case the court is bound to call oral evidence to resolve it. It is further submitted that as the decision of the trial court did not follow the law it is perverse and must be set aside.
1st RESPONDENT
The 1st Respondent’s counsel did not address this issue in his brief of argument.
2ND -5TH RESPONDENTS’ ARGUMENTS:
On behalf of the 2nd -5th Respondents, the learned Senior Counsel submitted that the affidavit of the 1st Respondent in this case is not defective and does not offend the relevant provisions of the Evidence Act. It was argued that the deponent had stated clearly that facts contained in the affidavit were given to him and Professor Kasunmu SAN by the Claimant and his mother which complied substantially with the provisions of the Evidence Act. He argued that the deponent stated the source of information and where he received same as he stated that he is employed by the Chambers of Professor Kasunmu SAN. It was further submitted that the lower court correctly treated the facts in the affidavits and there was overwhelming evidence that the deceased law firm was shut down from the affidavits of parties and referred to paragraphs 8(m) and (n) of the Counter-Affidavit of the Appellants at page112 of the record. The learned trial Judge was right to have ordered the reopening of the law firm.
6TH RESPONDENT’S ARGUMENTS:
On behalf of the 6th Respondent it was submitted that the contention of the Appellants about defectiveness of certain paragraphs of the 1st Respondent’s Affidavit did not relate to paragraphs 1 to 6, 14 to 16, 19 to 24, 26, 28 and 31 to 32 of the affidavit. Also he argued that it has not been shown that these paragraphs which remain, together with:
(a) the Statement of Claim, which the court must take into account;
(b) paragraph 5 of the Counter-Affidavit of the 6th Respondent by which paragraphs 8, 13, 17, 23, 25, 25a, 29 and 31 of the affidavit made on behalf of the 1st Respondent being impugned by the Appellants were admitted;
(c) Paragraph 8(o) of the Counter-Affidavit sworn to by the Appellants (p.113 of the record) to the effect that the 2nd Appellant was appointed to ensure that the companies which the deceased owned shares in continued to operate;
(d) Paragraph 5 of the further affidavit sworn on behalf of the Appellants (page 145 of the record) that the deponent knows that the 1st Respondent lays claim to the assets comprised in the estate of the deceased -an admission which the court was entitled to take account of as there was no dispute on the point. See Sotiminu v. Pcean Steamship Nig Ltd (1992) 5 NWLR (pt.239) 1; American Cyanamid v. Ethicon Ltd (1975) AC 396 at 408H to 409B; Okeke-Oba v. Okoye (1994) 8 NWLR (pt.364) 605 at 617.
With respect to the submissions of the Appellant in paragraphs 26 and 27 of their brief that the trial court resolved conflicts in affidavits, counsel submitted that the Appellants have not shown where the trial Judge did so in her ruling.
It was submitted that the principle in Falobi v. Falobi in resolving conflicts in affidavit evidence by calling oral evidence urged on this court by the Appellant has no place in applications for grant of interlocutory injunction. Counsel relied on a host of cases most of them cited by the Appellant. The Court was urged to resolve this issue against the Appellants.
RESOLUTION:
In resolving this issue, it is important to look at the Affidavit made on behalf of the 1st Respondent which is being challenged to ascertain how far it satisfied the requirements of the Evidence Act applicable at the material time which is cap. E 14, Laws of the Federation of Nigeria, 2004. In paragraph 1 of the Affidavit, the deponent stated that he works in the Chambers of Professor Kasunmu SAN briefed by the Claimant in the action. In paragraphs 2 and 3 thereof he said:
“2. That some of the facts deposed to in this affidavit are based on information given to Prof. A. B. Kasunmu SAN, and myself, by the Claimant, and his mother -Miss Adetoun Adesunloye which information I verily believe to be true.
3. That the other facts deposed to in this affidavit are derived from searches conducted by me at the Corporate Affairs Commission in Abuja, the Land Registry in Lagos and from information given to me by the Claimant’s Solicitors and Agents in London and South Africa which information I verily believe to be true.”
The Appellants have argued that the Affidavit in Support of the Motion on Notice for injunction did not satisfy the requirements of sections 86, 87, 88 and 89 of the Evidence Act, Cap E 14 LFN 2004. They state as follows:
“86. Every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
87. An affidavit shall not contain extraneous matter, by way of objection or prayer or legal argument or conclusion.
88. When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
89. When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstances of the information.”
The Appellants have contended in their brief at page 16, paragraph 22 that the facts deposed to are not from the personal knowledge of the deponent and Professor Kasunmu, his informant and also that the deponent failed to state the circumstances, the basis of the information, time and place the information was given. It is beyond question that from paragraphs 2 and 3 of the affidavit quoted above that the source(s) of the information of the deponent has been given as the Claimant, his mother, his solicitors in London and his agents in London and South Africa. I have also noted that the deponent attached some documents to the affidavit which showed the source of some of the facts deposed to by him. These include exhibits ABK 1 to ABK 9, and particular notice is taken of ABK 2 which is information coming from the Claimant’s solicitors and agent in London. S.89 of the applicable Evidence Act only requires that the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstances of the information.
The names of the informants and reasonable particulars of the informant, time, place and circumstances of the information have also been given in the circumstance. Though the deponent actually failed to give the exact time and place of the information, it is clear that that is not the requirement of section 89 of the Evidence Act. I hold that there was substantial compliance with the section and in the circumstance, in the interest of justice the relevant paragraphs of the affidavit ought not to be struck out. What is said above also relates to section 88 of the Evidence Act.
While dealing with sections 86 and 87 of the Act in the case of Bamaiyi v. State (2001) 8 NWLR (pt.715) 270 at 289 C-F, Uwaifo, JSC said:
“I think the legal position is clear, that in any affidavit used in the court, the law requires, as provided in sections 86 and 87 of the Evidence Act, that it shall contain only a statement of facts and circumstances derived from the personal knowledge of the deponent or from information which he believes to be true, and shall not contain extraneous matter by way of objection, or prayer, or legal argument or conclusion. The problem is sometimes how to discern any particular extraneous matter. The test for doing this, in my view, is to examine each of the paragraphs deposed to in the affidavit to ascertain whether it is fit only as a submission which counsel ought to urge upon the court. If it is, then it is likely to be either an objection or legal argument which ought to be pressed in oral argument; or it may be conclusion upon an issue which ought to be left to the discretion of the court either to make a finding or to reach a decision upon through its process of reasoning. But if it is in the form of evidence which a witness may be entitled to place before the court in his testimony on oath and is legally receivable to prove or disprove some fact in dispute, then it qualifies as a statement of facts and circumstances which may be deposed to in an affidavit. It therefore means that prayers, objections and legal arguments are matters that may be pressed by counsel in court and are not fit for a witness either in oral testimony or in affidavit evidence; while conclusions should not be drawn by witnesses but left for the court to reach.”
Having regard to the above statement of the law, I agree that paragraphs 12 (the informant not named), 25a, 27 and 31 are liable to be struck out for containing extraneous matters by way of arguments and conclusions and are hereby struck out. This issue succeeds only with respect to these paragraphs.
Issue (v):
Did the lower court validly exercise its discretion to appoint non-legal practitioners as Interim Administrators to open, manage and control the law firm of Fred Egbe & Co?
APPELLANTS ARGUMENTS:
Under this issue the Appellants challenged the appointment of the Interim Administrators to open, manage and control the law firm of Fred Egbe & Co on the grounds that it offends sections 2 and 22 of the Legal Practitioners Act and also Rules 4 and 5(5) of the Rules of Professional Conduct guiding legal practitioners. It was argued that apart from Seyi Sowemimo, SAN, all other persons appointed as Interim Administrators to open, manage and control the law firm are non-legal practitioners. Thus the appointment in this regard is illegal.
1ST RESPONDENT’S ARGUMENTS:
While responding to this issue, the 1st Respondent’s learned Senior Counsel argued that there is nothing in section 2 and 22 of the Legal practitioners Act that lends credence to the submission of the Appellants. It was argued that the order made did not direct the Interim Administrators to take over the law firm and start practicing as legal practitioners and that they were not even directed to manage the law firm, but to reopen it and that the management of the firm should be under the control of the Interim Administrators. There is nothing illegal in the order, it is submitted.
2ND -5TH RESPONDENTS:
Learned Senior Counsel for the 2nd -5th Respondents argued in a similar fashion adding that the Legal Practitioners Act did not state that a non legal practitioner cannot open a law firm closed down, neither did it state that a non legal practitioner cannot act as a manager of a law firm as majority of well established law firms now have practice managers. They invited the court to reject the submissions of the Appellants in this regard as seriously misconceived.
6TH RESPONDENT:
The 6th Respondent conceded this issue.
RESOLUTION:
Sections 2(1) and 22 of the Legal Practitioners Act state:
“2(1) Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if and only if, his name is on the roll”
“22(1) Subject to the provisions of this section, if any person other than a legal practitioner
(a) Practices, or holds himself out to practice, as a legal practitioner… he shall be guilty of an offence…”
Rules 4 and 5(5) of the Rules of Professional Conduct of Legal Practitioners state:
“4. a lawyer shall not permit his professional services to be controlled or exploited by any lay agency, personal or corporate, which intervenes between him and the client.
5(5) it shall be unlawful to carry out legal practice as a corporation.”
In their arguments on this matter, the learned Senior Counsel for the 1st to the 5th Respondents did not address Rules 4 and 5(5) of the Rules of Professional Conduct of Legal Practitioners. It seems to me from the provisions of these Rules that the practice of a firm of legal practitioners cannot be controlled or exploited by any lay agency, personal or corporate. Such will be illegal and cannot be allowed to stand. In this case the order made by the trial court that the firm of Fred Egbe & Co. Should be under the control of the Interim Administrators, most of whom are not lawyers, in my view offends the Rules of Professional Conduct stated above. In consequence, that order ought not to be allowed to stand. Issue (v) is resolved in favour of the appellants.
It is necessary to point out that although issue (iv) succeeded in part in that some of the paragraphs of the affidavit sworn in support of the Motion on Notice for interlocutory injunction were struck out, the strking out of these paragraphs did not affect the merits of the order of injunction granted by the trial judge. The rest of the orders made are in accord with the justice of the matter and the need to preserve the res pending the determination of the action. In the final result, this appeal succeeds in part with respect to the paragraphs of the affidavit struck out and issue five. Issues (i) – (iii) above having all been resolved in favour of the Respondents, the order of injunction and all the other consequential orders made are hereby affirmed. The order directing that the law firm of the deceased shut down by the 2nd Appellant be re-opened immediately and that the management of the said firm be under the control of the interim administrators appointed is set aside. I make no order as to costs.
RITA NOSAKHARE, J.C.A.: I have read in draft the judgment just delivered by my brother CHINWE EUGENIA IYIZOBA J.C.A. and I agree with the opinion and conclusion therein.
I also adopt, abide by the consequential order made that this appeal succeeds in part and also the order as to costs.
FATIMA OMORO AKINBAMI, J.C.A.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother Iyizoba, JCA in this appeal and I am in full agreement with his reasoning and conclusion.
He has painstakingly dealt with the issues which arose in the appeal and I have nothing else to add.
I therefore agree with him and affirm the order of injunction and all the other consequential orders made.
I abide by the order made on costs.
Appearances
Prof. Yemi Osinbajo SAN with Mrs. V. O. M. Alonge and Abimbola Ojenike EsqFor Appellant
AND
Prof. A. B. Kasunmu SAN with Chief A. B. Ogedegbe and Dotun Abolanle Esq for the 1st Respondent.
Chief Bolaji Ayorinde SAN with Olugbenga Dosumu Esq and Lassai Akenate for 2nd – 5th Respondents.
E. O. Sofunde SAN with L. O. Akangbo for the 6th Respondent.For Respondent
