YUSUF v. HAMIDU & ANOR
(2022)LCN/16649(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Wednesday, April 13, 2022
CA/K/14/2017
Before Our Lordships:
Ita George Mbaba Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
ABUBAKAR MUHAMMAD YUSUF APPELANT(S)
And
1. ASMAU SANI HAMIDU 2. ALH. SANI HAMIDU RESPONDENT(S)
RATIO
THE MEANING OF AN INTERLOCUTORY INJUNCTION
Interlocutory injunction is a temporary order of a Court of law, directing to do or restraining to do, against a party to a suit, before it, pending the final resolution of the controversy. See AGWU Vs. JULIUS BERGER (NIG) PLC (2019) 11 NWLR (Pt. 168 AT 189. It is usually granted where the matter calls for urgency. See IHEANACHO EKPAHURU IDEOZU & ORS Vs. CHIEF FRANK OKPO OCHOMA & ORS (2006) 2 SCNJ 278.
In CHIEF DANIEL OGBONNAYA & ORS Vs. ADAPALM NIGERIA LIMITED (1993) LPELR–2288 (SC), Kutigi, JSC (as he then was) later CJN inter alia held that:
“In an application for an interlocutory injunction, an applicant should inter alia satisfy the Court that there is a serious question to be tried at the hearing of the suit and that the facts disclosed a reasonable probability that the applicant will be entitled the relief sought.” PER MUSALE, J.CA.
THE POSITION OF LAW IN AN APPLICATION FOR AN INTERLOCUTORY INJUNCTION
There is no doubt that in an application for an interlocutory injunction, an applicant should inter alia satisfy the Court that there is a serious question to be tried at the hearing of the suit and that the facts disclose a reasonable probability that the applicant will be entitled to the relief sought. The remedy is clearly a discretionary one and is not granted as a matter of course. See Obeya Memorial Specialist Hospital V. Attorney-General of the Federation (Supra), John Holt Nigeria Ltd V. Holts African Workers Union (1963) 1 All NLR 379; (1963) 2 SCNLR 383.
In the exercise of its discretion the Court must look at the whole case. It must have regard not only to the strength of the claim but also to the strength of the defence and then decide what is best to be done in the circumstance. (See generally Ladunni v. Kukoyi (supra), Globe Fishing Industries Ltd. v. Coker (1990) 7 NWLR (Pt. 162) 265.
There is no doubt that the power to grant an interlocutory order of injunction is one of the inherent powers of a Court of law for the enhancement of the administration of justice. By virtue of the powers conferred on the High Court by Section 6 (6) (a) of the 1999 Constitution (as amended), the High Court has the power to grant an injunction. There is also no doubt, that the Court has a duty to preserve the res or subject matter of litigation. The grant of an order of interim or interlocutory injunction is an equitable remedy within the discretionary powers of the Court. As with all exercise of discretion, the power must be exercised judicially and judiciously, taking all relevant circumstances into account. See AZUH Vs. UNION BANK (2014) LPELR –22913 (SC). PER MUSALE, J.CA.
USMAN ALHAJI MUSALE, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of Kano State High Court delivered by Mohammed Yahaya, J. on 23/11/2016 in Suit No. K/288/2016, wherein the trial Court granted interlocutory injunction against the plaintiff (now Appellant).
In summary, the Appellant as an employee of the Kano State Government resided in a government owned property known as No. 147 Farm Centre Road, Kano State. Kano State Government offered to sell the property (House No. 147 Farm Centre Road) to the Appellant at N22,500,000 (Twenty-Two Million and Five Hundred Thousand Naira only). The Appellant afraid that he could not meet the condition of the offer made to him, went to the 2nd Respondent and asked him to buy the property. The 2nd Respondent introduced his wife, the 1st Respondent, to buy the interest of the Appellant in the said property. The 1st Respondent offered to buy (interest in) the property with a twin semi-detached duplex situate at Layin Baban Yara, Old Hausawa, Sabon Titi, Kano State and N1,000,000 (One Million Naira only) as consideration and the Appellant accepted.
In their effort to fulfil the conditions stipulated by Kano State Government on the property, the 1st Respondent on 25/1/2013 paid 10% of the purchase amount through the Appellant. On 11/3/2015 the 1st Respondent paid 20% of the amount. However, when the Appellant took the bank teller to the Kano State Ministry of Works for documentation, he found that the offer has been revoked for failure to pay the 20% of the amount within 90 days after payment of the first 10% as contained in the letter of offer. The Appellant informed the Respondents that there is a chance for re-offer of the sale, but the 1st Respondent said she was no longer interested in buying the property and demanded the Appellant to vacate the twin semi-detached duplex situate at Layin Baban Yara, Old Hausawa, Sabon Titi, Kano State and refund of all money paid by the 1st Respondent.
The Appellant went ahead and found another buyer and sold the (interest in) property. When the Appellant went back to the Respondents to refund their money, the Respondent told him they still have interest in the property. This prompted the Appellant to go to the lower Court via writ of summons filed on 22/6/2016 asking for a declaration from the lower Court that Respondents have committed fundamental breach of contract, thereby discharged from any obligation arising from the contract and asked for N2,000,000 (Two Million Nara only) damages. The Respondents were granted extension of time on 5/10/2016 within which to file their statement of defence. On 17/11/2016 the Respondents moved their motion for interlocutory injunction and the Appellant responded with a Counter–Affidavit.
The lower Court granted the interlocutory injunction on the 23rd/11/2016.
Above is as presented in the brief filed by the Appellant as the Respondents did not file any.
The Appellant not satisfied with the ruling came to this Court via his Notice of Appeal filed on 6/12/2016 with two grounds of appeal. They are as follows excluding the particulars:
GROUND ONE
The learned trial Judge erred in law when he granted the application for preserving the res, subject matter of the suit property No.147 Farm Centre Road, Nasarawa G.R.A. Kano pending the determination of the suit, without due observance of the provisions of law.
GROUND TWO
The learned trial Judge erred in law when he failed to act on the facts which were provided before him through an affidavit and Exhibits.
The Records of appeal was transmitted on 13/1/2017. The Appellant filed his brief of argument on 1/3/2017 and formulated issues for determination as follows:
“1. Whether or not the learned trial Judge was right to reserve the res of the subject matter which is in possession and ownership of the third (3rd) party who is not a party before the Court.
2. Whether or not from the circumstances of the case before the lower Court, the defendants (now Respondents) are entitled to the orders they sought for.”
The Respondents did not file their brief of argument.
M. S. Yunusa, Esq. settled the Appellant’s Brief of Argument. On Issue No. 1, the learned counsel submitted that any application made before a Court of law is determined by the status of the parties in the suit. Therefore, the lower Court which was informed that subject matter is in possession and ownership of a third party (he referred to Counter–Affidavit at page 72 of the record of Appeal and Sale Agreement at pages 79–85 of the record of Appeal) went ahead wrongly to grant injunction order on the said property. He submitted that an order of injunction cannot be made to have effect and force against a non-party or a stranger to a suit. He referred to UNION BEVERAGES LTD Vs. PEPSI COLA INTERNATIONAL LTD (1994) 3 NWLR (Pt. 330) 1 AT 21. That Courts of law do not make orders in vain or in vacuum, UNITED BANK FOR AFRICA PLC AND ANOR Vs. ALH. BABANGIDA JARGABA (2007) 5 SCNJ 127 AT 141. He urged the Court to resolve the issue in favour of the Appellant.
On Issue No. 2, the learned counsel argued that the lower Court having pronounced that the Respondents (then defendants) were “very unserious” should not have granted the order for preservation of the res to the Respondents. Counsel submitted that injunction is granted where there is urgency. Thus where an applicant is guilty of delay, this demonstrates the absence of any urgency. He referred to IHEANACHO EKPAHURU IDEOZU & ORS Vs. CHIEF FRANK OKPO OCHOMA & ORS (2006) 2 SCNJ 278 AT 296. He further submitted that the application failed to meet the requirement for granting interlocutory injunction as elaborated by the Supreme Court in MR MUFUTAU AKINPELU Vs. EBONOLA ADEGBORE & ORS (2008) 4 SCNJ 220 AT 226 and therefore the order was wrongly granted. He urged the Court to resolve the issue in favour of the Appellant, allow the appeal and set aside the decision of lower Court.
RESOLUTION OF ISSUES:
The core issue on which this appeal revolves is on whether the lower Court was right in granting the interlocutory injunction.
Interlocutory injunction is a temporary order of a Court of law, directing to do or restraining to do, against a party to a suit, before it, pending the final resolution of the controversy. See AGWU Vs. JULIUS BERGER (NIG) PLC (2019) 11 NWLR (Pt. 168 AT 189. It is usually granted where the matter calls for urgency. See IHEANACHO EKPAHURU IDEOZU & ORS Vs. CHIEF FRANK OKPO OCHOMA & ORS (2006) 2 SCNJ 278.
In CHIEF DANIEL OGBONNAYA & ORS Vs. ADAPALM NIGERIA LIMITED (1993) LPELR–2288 (SC), Kutigi, JSC (as he then was) later CJN inter alia held that:
“In an application for an interlocutory injunction, an applicant should inter alia satisfy the Court that there is a serious question to be tried at the hearing of the suit and that the facts disclosed a reasonable probability that the applicant will be entitled the relief sought.”
From the record of the Court at page 98, the learned trial Judge found from the affidavits before him that there are real disputes to be tried in the main case before him. As regards the averments deposed to by the Appellant that the property was sold to a person that does not know of the existence of this case, the learned Judge queried; “why the plaintiff file this case if he has no interest on the property, why not inform the purchaser of the existing case”. The learned Judge concluded that is the plaintiff that knows the property was sold to another person. There is no doubt that in an application for an interlocutory injunction, an applicant should inter alia satisfy the Court that there is a serious question to be tried at the hearing of the suit and that the facts disclose a reasonable probability that the applicant will be entitled to the relief sought. The remedy is clearly a discretionary one and is not granted as a matter of course. See Obeya Memorial Specialist Hospital V. Attorney-General of the Federation (Supra), John Holt Nigeria Ltd V. Holts African Workers Union (1963) 1 All NLR 379; (1963) 2 SCNLR 383.
In the exercise of its discretion the Court must look at the whole case. It must have regard not only to the strength of the claim but also to the strength of the defence and then decide what is best to be done in the circumstance. (See generally Ladunni v. Kukoyi (supra), Globe Fishing Industries Ltd. v. Coker (1990) 7 NWLR (Pt. 162) 265.
There is no doubt that the power to grant an interlocutory order of injunction is one of the inherent powers of a Court of law for the enhancement of the administration of justice. By virtue of the powers conferred on the High Court by Section 6 (6) (a) of the 1999 Constitution (as amended), the High Court has the power to grant an injunction. There is also no doubt, that the Court has a duty to preserve the res or subject matter of litigation. The grant of an order of interim or interlocutory injunction is an equitable remedy within the discretionary powers of the Court. As with all exercise of discretion, the power must be exercised judicially and judiciously, taking all relevant circumstances into account. See AZUH Vs. UNION BANK (2014) LPELR –22913 (SC).
Having gone through a sizable authorities on the issue, I can summarise that the existence of the legal right of the applicant requiring protection by interlocutory injunction and the existence of serious question to be tried between the parties, are condition precedent to the grant of interlocutory injunction. Being a discretionary exercise, the Courts are enjoined to exercise their discretion judicially and judiciously. An interlocutory injunction ought not be granted where the applicant has no legal right requiring protection by interlocutory injunction or where the applicant has not proved that there is a serious question to be tried between him and the respondent.
So far, I have not seen any reason to disturb the discretionary powers exercised by the learned trial Judge in granting this application. The appeal fails and the same is dismissed.
In my view, this appeal should not have been filed. Parties should concentrate on prosecuting the main appeal than waste time and resources that may not confer benefits.
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusion of my learned brother, Musale, JCA, that the order of interlocutory injunction by the lower Court should not be disturbed, and that the appeal lacks merit. I too dismiss it.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have read the judgment delivered by my learned brother, USMAN ALHAJI MUSALE, JCA. I am in agreement with his reasoning and conclusion that there is no merit in this appeal. I adopt same in dismissing the appeal and abide by the consequential order affirming the judgment of the lower Court delivered on 23/11/2016 in suit No. K/288/2016.
Appearances:
M. S. Yunusa, Esq., with him, R. S. Abdullahi, Esq., Yusuf Mukhtar, Esq., A. I. Ibrahim, Esq. and M. B. Dachia, Esq. For Appellant(s)
…For Respondent(s)
