ALHAJI ABDULKARIM IYIMOGA & ORS v. THE EXECUTIVE GOVERNOR OF PLATEAU STATE & ORS (1993)

ALHAJI ABDULKARIM IYIMOGA & ORS v. THE EXECUTIVE GOVERNOR OF PLATEAU STATE & ORS

(1993)LCN0150(CA)

In The Court of Appeal of Nigeria

Monday, the 12th day of July, 1993

Case number: CA/J/223/92

RATIO

EQUITABLE REMEDY: WHETHER INJUNCTION IS GRANTED TO COMPENSATE A PLAINTIFF IN THE INTERIM FOR INITIATING AN ACTION IN COURT

Injunction is not granted to compensate a plaintiff in the interim for merely initiating an action in a Court of Law. It is not granted as a matter of grace or routine. On the contrary, injunction is granted only in deserving cases based on hard law and facts. See NIGERIAN JOINT AGENCY LTD v. MILITARY GOVERNOR OF CROSS RIVER STATE & OTHERS (1985) 5 NWLR (pt. 41) 334. PER DAHIRU MUSDAPHER, J.C.A.

COURT PRACTICE: WHAT THE COURT MUST CONSIDER IN AN APPLICATION FOR INTERLOCUTORY INJUNCTION

EQUITABLE REMEDY: WHETHER THE GRANT OR REFUSAL OF AN INJUNCTION IS SUBJECT TO THE DISCRETION OF THE COURT

There is no doubt the grant or refusal of the injunction is discretionary, and ordinarily an appeal Court should not reverse or question the exercise of discretion by a trial Judge. But an appeal from a decision made in the exercise of a trial judge’s discretion can be entertained when, in exercising his discretion, the trial judge has acted under a mistake of law, or in disregard of principle, or under misapprehension of the facts or has taken into account irrelevant matters, or on the ground that injustice could arise. See SOLANKE V. AJIBOLA (1969) 1 NMLR 253; AWANI V. EREJUWA II 1977 11 SC 307 KUDORO V. ALAKA (1956) 1 FSC 82.PER DAHIRU MUSDAPHER, J.C.A.

JUSTICES:

DAHIRU MUSDAPHER Justice of The Court of Appeal of Nigeria

ALOYSIUS IYORGYER KATSINA-ALU Justice of The Court of Appeal of Nigeria

OBINNAYA ANUNOBI OKEZIE Justice of The Court of Appeal of Nigeria

Between

ALHAJI ABDULKARIM IYIMOGA
2. ALHAJI SAMAILA WAMBAI
3. ALHAJI ADAMU HUSSAINI
4. MR OSAGEDE OSHUSHU
5. ALHAJI AHAMADU WAYA
6. ALHAJI MOHAMMED SANI OGAH
7. ALHAJI AUDU BAKO DOMA
8. ALHAJI MUSTAPHA HALILU
9. MR. ONAWO ADDRA
10. MR. CHRISTOPHER AKWE OJIGWARA
11. MALLAM ISA OWUSO
12. MALLAM MOHAMMED OJI
13. AKABE OSHIGADA (MADAKI DOMA)
14. AKABE OSAMA (MADAUCHI DOMA)
15. OMAKU OBOSHI OSHINABA (GALADIMA DOMA)
16. ALADABU AKABE (MAKWANGIJI DOMA)
17. ALHAJI ABDULKARIM IDRIS (WAZIRI DOMA)
18. ALHAJI MUHAMMADU RAJJAB OGIRI (PAKACHI DOMA) – Appellant(s)

AND

THE EXECUTIVE GOVERNOR OF PLATEAU STATE
2. THE ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE
3. HON. JUSTICE MOFOYE OYETUNDE
4. HON. JUSTICE I. S. GOFWEN
5. SABO BUGE (Esq)
6. MR. BARNABAS DUSU
7. MR. NANSHEP DAGUM – Respondent(s)

DAHIRU MUSDAPHER, J.C.A. (Delivering the Leading Judgment): In the High Court of Justice of Plateau State holden at Lafia and in suit No. PLD/LF.6/92 which was transferred to the Jos High Court and now titled PLU/J211/92 the plaintiffs claim against the defendants are in these terms:-
“(a) A declaration that the Benue Plateau State of Nigeria Gazette No. 47 Vol. 6 of 23rd November, 1972 supplement part E (B.P.S.L.A.L.N. 27 of 1972) as promulgated is in conformity with the Native Law, Custom, Tradition and Unwritten Constitution of Doma People.
(b) A declaration that there are only three Ruling Houses/Dynasties, to wit, Obushugu (Odogyo), Inumakwe (Asibiri), and Ayigogah (Odorogya), known to the custom, tradition and unwritten constitution of Doma people and that only male descendants of these Ruling Houses/Dynasties are eligible to become the Andoma of Doma.
(c) An order directing the defendants to set in motion with immediate effect the machinery for the selection and installation of a new Andoma of Doma in accordance with the relevant law.
(d) An order of perpetual injunction restraining the defendants, their agents or privies from tempering in any way whatsoever with the said law as same was arrived at with the consent of all the Royal Houses in Doma after due deliberation, or, and consideration of the Native law and Custom of the Doma people.”
Both the Writ of summons and the statement of Claim were served on the two defendants on the 30th day of April, 1992. While the case is still pending, the first defendant, the Governor of plateau state appointed a Judicial panel of Inquiry to look into the vacant stool of the Andoma of Doma with the following Terms of Reference:-
“1. To examine from available records and history and thereafter to confirm the correct number of Ruling Houses that are eligible to be selected for the throne of the Andoma of Doma.
2. To examine existing methods of selection of Andoma of Doma and identify any anomaly (if any) and make appropriate recommendations with the new of lasting solution.
3. To make any other recommendations that may help to stabilise and sustain the Electoral College of the Andoma of Doma.”
The Judicial Panel was appointed on the 10th day of June, 1992, during the pendency of the plaintiff’s case against the two defendants aforesaid. The plaintiffs felt aggrieved with the action of the 1st defendant in instituting the Judicial Panel while their claims which are similar in nature are pending before the court. On the 16th day of June, 1992, the plaintiffs filed a move before the High Court praying that the Judicial Panel be restrained by an injunction from conducting the Inquiry. The members of the Judicial Panel, Counsel and the secretary were made parties to the motion and they are herein the 3rd to the 7th Respondents. To be precise, the terms of the motion filed by the plaintiffs are as follows:-
“1. An Order restraining the 3rd – 7th Respondents being agents of the 1st and 2nd Respondents from sitting as a Judicial Panel of Inquiry on the stool of the Andoma of Domain Doma Local Government Area.
2. An order restraining the 1st and 2nd Respondents and their agents whosoever from doing anything whatsoever in relation to the chieftaincy stool of the Andoma of Doma till the final determination of the substantive suit pending before this Court.
3. An Order restraining the 1st and 2nd Respondents and their agents from tempering with the Benue Plateau State of Nigeria Gazette No. 47 Vol. 6 of 23rd November, 1972 Supplement Part E (B.P.S.L.A.L.N. 27 of 1972).
4. An order granting an accelerated hearing of the substantive suit.
5. Such further or other orders as this Honourable Court may deem fit to make in the circumstances.”
The motion was supported with an affidavit of 19 paragraphs. There was also a further affidavit of eight paragraphs. Unfortunately the respondents to the motion did not file any counter-affidavit. The learned trial judge Uloko CJ heard oral arguments and in his ruling delivered on the 31/7/1992 refused the application.
In part of his ruling he held as follows:
“on the materials placed before me, I have no doubt at all in my mind that the applicants have a triable issue before me. This is not being contested by the respondents.
With regards to the question posed by the learned counsel for the applicants as to whether or not, it is permissible for a party to a suit to engage in self help gimmicks to out-manoeuver the other party, the answer is definately no. No court of law will fold its arms, sit and watch, in utter helplessness, its judicial powers being benumbed for whatever reason, through administrative process…”
He, however declined to exercise his discretion in favour of the applicants because (1) The complaints of the applicants were mere allegations which were not proved, and (2) No evidence of balance of convenience was adduced by the applicants. There was also an indictment of the counsel for the applicants when she refused to answer a question posed by the learned trial judge.
The plaintiffs felt unhappy with the Ruling dismissing their prayer for interlocutory injunction to restrain the defendants from doing what has been recited above, and have now appealed to this Court. In this judgment, the plaintiffs shall hereafter be referred to as the appellants while the defendants as the respondents. The Notice of Appeal as amended contains three grounds of appeal. Briefs of argument were filed and exchanged and at the hearing both learned counsel representing the parties preferred oral submissions in support of the arguments contained in their respective written briefs. But before the examination of the issues raised for the determination of the appeal it shall be necessary to sketch the scanty facts as can be gleaned from the printed record. As mentioned above, the respondents did not file counter affidavit and they are therefore deemed to have accepted the facts as presented to the trial chief judge by the appellants. He held as mentioned above that the appellants had made out a prima facie ca The facts are that the erstwhile Andoma of Doma, Andoma Aliyu Addra Ode Onawo died on the 13th day of June, 1991. The appellants are the traditional Kingmakers and the representatives of the three Ruling Houses as alleged by them recognised by the Legal Notice No. 27 of 1972. There was dispute as to the legality or applicability of the provisions of the Legal Notice in the selection and appointment of a new Andoma to the vacant stool. Some Doma people registered their protest. There was an action in court which was discontinued. The printed record did not give the details of such facts, since as aforesaid the respondents did not file a counter-affidavit in opposition to the facts deposed in support of the motion by the appellants. But in his brief for respondents, the Learned Solicitor General Plateau State narrated the full facts. He however, conceded that since the facts were not properly placed before the Trial court and did not infact feature in the decision of the court, such facts are irrelevant to the determination of the appeal. In the consideration of the appeal now before me, I shall only confine myself to the facts contained in the affidavits in support of the motion which are accepted by the Learned Chief Judge.
With the demise of the erstwhile Andoma, the appellants as representatives of the Royal Houses and the Kingmakers somehow felt that the 1st Respondent was not willing to apply the provisions of the Legal Notice in setting up the machinery to select and install the new Andoma to the vacant stool. Hence they instituted the action claiming the reliefs recited above. Sometimes later and before the determination of their claims in the court, the 1st respondent commissioned the Judicial Panel to re-examine the Customary Law relating to the selection and the appointment of the Andoma. It is not disputed that the terms of reference of the Judicial Panel are Similar to the terms of the reliefs the appellants are asking the Court to determine. The 3rd to the 7th Respondents herein are the members of the Panel as mentioned above. The appellants felt unhappy with the turn of events and filed the motion to restrain the respondents from taking any steps relating to or concerning the selection and the installation of the Andoma until after the determination of their claims earlier on filed in court. And as mentioned above, the learned Trial Chief Judge refused to grant them the interlocutory reliefs sought and hence this appeal.
Now, in the appellants I brief the following issues for the determination of the appeal have been identified and formulated:-
1. Whether the trial Court rightly held that the appellants had not made a case to warrant a grant of interlocutory injunction.
2. Whether the Learned Trial Judge acted rightly when he raised an issue not brought before it by the parties, and whether his decision was influenced thereby.
For the Respondents the following issues were raised in their brief:-
1. Whether a finding that the appellants in an application for interlocutory injunction have a triable issue pending in the court per se automatically entitle the appellants to the grant of injunction.
There are two other issues formulated for the respondents. The issues are not raised or related by any of the grounds of appeal and the learned counsel for the respondents conceded that the issues are incompetent, accordingly, I refrain to comment on them.
It seems to me that this appeal revolves itself for determination on the narrow campass, whether on the facts placed before the Learned Chief Judge he ought to grant the injunctive interlocutory reliefs sought, or not. I shall accordingly confine myself to this single issue.
The appellants’ counsel argued that the appellants had met the legal requirements for the granting of their prayers and that these requirements include:
1. They have a right which ought to be protected pending the determination of substantive action.
2. That on the evidence before the court there are triable issues which were not disputed by the respondents.
3. That the balance of convenience is in their favour.
It is submitted that the Learned Trial Chief Judge having found that they have a genuine case pending for adjudication before him, he ought to preserve the res and restrain the respondents pending the determination of their claims. It is further submitted that what the Judicial Panel is asked to do, was precisely what is before the Court for adjudication. It is therefore desirable to allow the court to deal with the matter and any investigation of the matter by the Judicial Panel will seriously jeopadise the appellants’ case before the court. The Learned Counsel refers to AKAPO V. HAKEEH HABEEB (1992) 6 NWLR (Pt.247) 266 at 289 – 302. It is further submitted that on the balance of convenience, it is only the uncontradicted and unchallenged evidence of the appellants that was before the court. They gave the evidence that the Inquiry by the Panel will affect their case in such a way that no damages could satisfy them. There was abundant evidence that their rights will be threatened and their case pending in court will be rendered nugatory.
For the respondents it is submitted that merely because the appellants had established a triable issue was not enough to entitle them to a grant of an injunctive relief. Vide SARAKI V. KOTOYE (1990) 4 NWLR (Pt.144) 144 at 187. In the instant case, the appellants failed to establish the other requirements of law to entitle them to the grant of their prayers. It was also argued that the respondents did not need to file counter affidavit since the appellants did not adduce sufficient evidence to warrant the grant of injunction, that the pith of the evidence supplied in the affidavits were expunged from the proceedings because they breached the provisions of the Evidence Act.
Now, in order to enable the court to exercise its equitable jurisdiction, the applicant must present convincing facts which in themselves vindicate the well laid down principles for granting the injunction. Injunction is not granted to compensate a plaintiff in the interim for merely initiating an action in a Court of Law. It is not granted as a matter of grace or routine. On the contrary, injunction is granted only in deserving cases based on hard law and facts. See NIGERIAN JOINT AGENCY LTD v. MILITARY GOVERNOR OF CROSS RIVER STATE & OTHERS (1985) 5 NWLR (pt. 41) 334.

In an application for interlocutory injunction, the court must consider:-
(a) whether the applicant has a legal right which he seeks to protect and has good chances of success in the relief he is asking for though not on the merits See GREEN V. GREEN (1987) 3 NWLR (pt. 61) 480; AMOKOMOWO V. ANDU (1985) 1 NWLR (pt.3) 530, NIGERIAN CIVIL SERVICE UNION V. ESSIEN (1985) 3 NWLR (Pt.12) 306.
(b) Whether the balance of convenience will be in favour of the applicant if the application is granted. Putting it in the reverse position, whether the applicant will suffer more inconvenience if the application is not granted See MISSINI V. BALOGUN (1968) 1 ALL NLR 318; KANNO v. KANNO (1986) 5 NWLR (pt. 40) 138. In determining this factor the law requires to see where the pendulum of the scale of justice tilts. So that there is the need to show by evidence that the applicant will suffer more inconvenience if the application is refused.
(c) Whether damages will be adequate compensation for the applicant at the end of the litigation See ABDULLAH V. GOVERNOR OF LAGOS STATE (1989) 1 NWLR (pt. 97) 356.
(d) Whether the applicant has established that there is a substantial issue to be tried at the hearing, where he does so the applicant is entitled to a favourable consideration of the application. See OBEYA V. A.G. & ANOR. (1987) 3 NWLR (Pt.60) 325.
In the instant appeal, the Learned Chief Judge had found as a fact that the appellants had established the existence of a substantial issue to be tried at the hearing. It is also manifest that if the Panel is allowed to function in parallel with the court some injury is bound to afflict the appellants. It is also undoubtedly clear that monetary compensation cannot atone the appellants.
Applying these principles, the Learned trial Judge ought to have granted the injunction sought by the appellants. They have at least shown substantial questions to be decided at the trial.
There is no doubt the grant or refusal of the injunction is discretionary, and ordinarily an appeal Court should not reverse or question the exercise of discretion by a trial Judge. But an appeal from a decision made in the exercise of a trial judge’s discretion can be entertained when, in exercising his discretion, the trial judge has acted under a mistake of law, or in disregard of principle, or under misapprehension of the facts or has taken into account irrelevant matters, or on the ground that injustice could arise. See SOLANKE V. AJIBOLA (1969) 1 NMLR 253; AWANI V. EREJUWA II 1977 11 SC 307, KUDORO V. ALAKA (1956) 1 FSC 82. Applying the principles innunciated above, and applying the facts of this case as contained in the affidavits of the appellants which remain unchallenged and uncontradicted, the Learned Chief Judge erred in not exercising his discretion in favour of the appellants. The scale of justice clearly tilted to their side.
The appellants in the instant case have invoked the court for a judicial determination of an issue which is dear to their hearts, later the respondents decided to have the same issue be determined by another body. This, in my view, is to say the least untenable. It borders on the encroachment of the Executive on the judicial powers granted to the courts by the constitution. SEE GOVERNOR OF LAGOS STATE V. OJUKWU (1986) 1 NWLR, (pt.18) 621 at 636 where OBASEKI JSC said:
“In the Area where rule of law operates, the rule of self-help is abandoned. Once a dispute has arisen between a person and the government or authority and the dispute has been brought before the court, thereby invoking the judicial powers of the state, it is the duty of the government to allow the law to take its course or allow the legal and judicial process to run its full course. The action the Lagos State Government took can have no other interpretation than the show of the intention to preempt the decision of the court.
See also GARBA V. F.C.S.C. (1988) 1 NWLR (pt.71) 449 at 480; MILITARY GOVERNOR OF BENDEL STATE vs. EZAGA (1990) 6 NWLR (pt.154) 19.
The appellants in the instant appeal had invoked the judicial powers of the courts as guaranteed by the Constitution See S. 6 thereof. The rule of law demands that the respondents ought not take any measures or steps that will indicate their intention to frustrate the judicial functions of the court as guaranteed by the constitution. In my mind, this is more fundamental and crucial to the rule of law than the laid down principles for the grant or refusal of interlocutory injunction. The Trial Chief Judge has the duty to ensure that the doctrine of the separation of powers as enshrined in the constitution is protected and preserved. He should zealously and jealously see to it that his judicial powers are not encroached upon or eroded by an act of the Executive. He should have granted the appellants’ prayers.
Having come to this conclusion and realising that the matter is yet to be decided by the Trial Chief Judge, it is not appropriate for me to deal with the other issues raised in this appeal. To do so will serve no useful purpose, and might influence the Chief Judge in the determination of the case pending before him. I accordingly allow the appellants’ appeal and set aside the Ruling of the trial Judge delivered on the 31/7/1992 and in its place I hereby make the following orders.
It is hereby ordered that the 1st and 2nd Respondents and their agents whosoever are henceforth restrained from doing anything whatsoever in relation to the chieftaincy stool of the Andoma of Doma till the final determination of the substantive suit pending before the Chief Judge of Plateau State.
It is hereby further ordered that the case now pending before the Chief Judge, in the interest of peace and justice be heard and determined as expeditiously as possible. I make no order as to costs.

ALOYSIUS IYORGYER KATSINA-ALU, J.C.A.: I have read before now the judgment of my Lord Musdapher J.C.A. just delivered. I agree with his reasoning and the conclusion reached.
I only desire to make a few comments of my own for emphasis. The case of the Respondents was badly handled both in the lower court and in this court.
From the statement of facts as related by the Respondents in the Respondents’ brief of argument, it would appear that by consent of the parties, the Appellants herein applied to withdraw an earlier suit No. PLD/LF19/91 to allow the Respondents time to set up a Commission of Inquiry to look into the Legal Notice No. 27 contained in the Gazette No. 47 vol.6 of 1972 which was the subject matter of the suit. The lower court accordingly struck out the suit on 7th April 1992. Soon thereafter, the Appellants on 23rd April 1992, filed suit No. PLD/LF6/92 (now PLO/J211/92) seeking the reliefs set out therein.
The Appellants on 6th of June 1992 filed a motion on notice seeking a number of restraining orders. When that motion came on for hearing, no counter affidavit was filed on behalf of the Respondents denying or admitting the averments in the supporting affidavits. Counsel for the Respondents also did not draw the attention of the learned trial Chief Judge to the earlier agreement reached in Suit No. PLD/LF19/192 following which the Appellants withdrew the suit which was then struck out. Understandably it was not in the interest of the Appellants to allude to this fact. They naturally conveniently did not make any reference to the agreement. The Respondents who stood to gain, also did not make any reference to it. Fortunately for them, however, the learned Chief Judge refused to grant the injunctive orders sought by the Appellants.
The Appellants appealed to this court. The Record of Appeal was prepared and forwarded to the parties. Records regarding suit No. PLO/LF19/91 were not included. The Respondents counsel did not complain. Yet in his statement of facts he dwelt at length on the agreement reached in PLO/LF19/11 following which the court struck out the suit. When this court drew his attention to the fact that the agreement did not form part of the Record of Appeal counsel’s answer was that there was no settlement of Records and that he did not know when the Record of Appeal was compiled. But the Record of Proceedings certified by the Registrar of the High Court shows clearly that the Record had been settled. See p.2 of the Record of Proceedings.
This lack of seriousness and commitment to duty on the part of counsel for the Respondents distresses me. This is a Case of great importance to the people of Doma in particular and plateau State in general. It certainly did not get the attention it cried out for. The learned Attorney General must wake up the officers of his Ministry to their responsibility to the people of the state.
As I earlier on indicated, I agree entirely with the judgment of my Lord Musdapher J.C.A. I too allow appeal and set aside the ruling of the learned Chief Judge delivered on the 31st July 1992, and I abide by the consequential order made in the leading judgment.

OBINNAYA ANUNOBI OKEZIE, J.C.A.: I have had the advantage of reading in draft the judgment of my learned brother Musdapher, J.C.A. just delivered. I agree with his reasoning and conclusion reached by him. I however wish to add by way of emphasis that from the affidavit and further affidavit before us it is clear that the appellants claim the chieftaincy stool of the Andoma of Doma which has been vacant since the death of the last Andoma of Doma, his royal highness Andoma Aliyu Adrra Ode Onawo on the 13th June, 1991.
The respondents to the motion did not file a counter-affidavit to contradict the assertions.
The more acceptable view in an application for interim injunction has now become that the applicant need only show:
(a) that there is a triable issue on the evidence before the judge between the parties to be tried; and
(b) that he has a right to be protected pending the determination of the substantive suit.
The leaned trial Judge hearing arguments from counsel rightly ruled that there was a triable issue but declined to exercise his discretion in favour of the appellants.
It is my view, once the applicant satisfies the court that there is in this case a serious question to be tried the court is entitled to proceed to consider the balance of convenience.
This point appears to have been more correctly stated by the Supreme Court in Obeya Memorial Hospital v. A.G. of the Federation (1987) 3 NWLR (pt 60) p 325, Ladunni v. Kukoji (1972) 1 All N.L.R pt 1 p 133, Egbe v. Onogun (1972) 1 All N R 95;
In Kufeji v. Kogbe (1961) 1 All NLR 113 which deals with the practice and procedure governing application for interim injunction (Coker J.) as he then was) set the test, which has been accepted these years said:
“In an application for interim relief, it is not necessary that a plaintiff or applicant should make out a case as he would on the merits, it being sufficient that he should establish that there is a substantial issue to be tried at the hearing.”
While it is true that as between the appellants and the respondent’s there is a serious question to be tried, the respondents did not file a counter affidavit to contradict the depositions.
It is trite law that depositions in an affidavit which are relevant to the reliefs sought in a motion are made in the affidavit in support of that motion and such depositions are not challenged or controverted, they are taken as admitted by the opposing side. In the instant case, the appellants depositions in their affidavits are taken as admitted as the respondents did not file a counter-affidavit to contradict the material facts deposed to in the appellants’ affidavits. See Jibrin v. Eja (1992) 7 NWLR (pt 255) p 631, Egbuna v. Egbunna (1989) 2 NWLR (pt 106) p 773 at 777, Alagbe v. Abimbola (1978) 2 SC p 39.
So, when an applicant for interlocutory injunction shows that there is a serious issue to be tried relating to the violation of his right and the damages he may suffer before the final determination of the suit win be such that he cannot be compensated for in damages, the court may grant him the relief of inter locutory injunction.
In the instant case, the suit was pending in the court when the respondents set up a Judicial Enquiry and its terms of reference are the same as the claim before the court and there is the likelihood that the recommendations will affect the civil suit already instituted and pending before the court. Also on the materials place before the court in this case, it is clear that the appellants would suffer wounded pride as well as substantial proprietory and pecuniary interest which damages cannot be adequate remedy.
I too restrain the respondents from doing anything whatsoever in relation to the Chieftaincy stool of Andoma till the determination of the substantive suit pending before the High Court Plateau state. I abide by the consequential order or orders made.

Appearances

MRS. T. OBOT with her R. ITIOLO For Appellant

AND

Y.I. DAKWANG S.G. PLATEAU STATE
S. BUGE DDLD PLATEAU STATE For Respondent

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