CHIEF REGINALD F.P. ABBEY HART & ORS. V. T.S.K.J. NIGERIA LTD. & ORS.
(1997)LCN/0278(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of June, 1997
CA/PH/94M/97
RATIO
COURT JUDGMENT AND ORDER: WHETHER IT IS DUTY OF THE TRIAL COURT TO AVOID MAKING STATEMENT WITH THE IMPRESSION OF MAKING UP ITS MIND ON SUBSTANTIVE ISSUES ON TRIAL
It seems to me that the law is now settled that a ruling on an interlocutory matter should not render nugatory the substantive suit. See: Egbe v. Onogun (1972) 1 All NLR P.95 at Pp.98. In the case of D.O. Orji v. Zaira Industries Ltd. & Anor (1992) 1 NWLR (Pt.216) 124 at P.141. The Supreme Court said:- “It is the duty of the trial court, when dealing with interlocutory matters, to avoid making statements giving the impression that it has made up its mind on the substantive issue on trial before it, as justice must not only be done, but must be seen to have been done. In the instant case, although the appeal fails, since the learned trial Judge had expressed a view on the substantive issue before it, the interest of justice demands that the case be heard by another Judge.”
JUSTICES:
ALOYSIUS IYORGYER KATSINA-ALU Justice of The Court of Appeal of Nigeria
RAPHAEL OLUFEMI ROWLANDJustice of The Court of Appeal of Nigeria
MORONKEJI OMOTAYO ONALAJA Justice of The Court of Appeal of Nigeria
Between
- CHIEF REGINALD F.P. ABBEY HART
2. WARIALABO (DR) ERNEST MESHACK-HART
3. WARIALABO CHRISTY T. ORUENE FOMBO HART
4. WARISENIBO ISRAEL T. WILLIAMS
5. WARISENIBO EBENEZER O. HART
(For themselves and as representing the
entire Captain Hart’s Major House of Bonny) – Appellant(s)
AND
- T.S.K.J. NIGERIA LTD
2. CHIEF (DR) YIBO BUOWARI BROWN (For himself and on behalf of the Buoye, Omuso Brown House of Finima, Bonny)
3. CHIEF Y.S. YOUNG-TOBIN (For himself and on behalf of the Konibo-ye-Awanta Tobin House of Finima, Bonny)
4. MR. ABEL ATTONI (For himself and on behalf of the Attooni House of Finima, Bonny) – Respondent(s)
ROWLAND, J.C.A. (Delivering the Lead Ruling): This is a motion brought pursuant to Order 3 Rules 1 – 4 and Rules 23 of the Court of Appeal Rules, 1981 praying this court for the following reliefs:
“1. An Order in the interim directing the 1st respondent herein to pay over to the Registrar of this court the sum of USD$360,000 being and representing the reserved 1st year’s rent due since September 1996 and such other sums forming part of the USD$700,000 agreed to be paid by 1st respondent (as the same may fall due from time to time) on account of an 8 year lease of the appellants’ land in Bonny now in dispute currently being commercially used by the 1st respondent) and for the same to be domiciled in an interest yielding foreign currency domiciliary account with either the Union Bank of Nigeria PLC, First Bank of Nigeria PLC or other reputable bank in Port Harcourt pending the determination of this appeal.
2. Any further or other Orders as this Court may deem fit.”
The motion is supported by an affidavit of 27 paragraphs deposed to by one Warialabo (Dr.) Ernest Meshack Hart. The 1st respondent T.S.K.J. Nigeria Limited filed a counter-affidavit of 45 paragraphs deposed to by one Otonye Llewellyn Davies. Mr. L.E. Nwosu learned counsel for the appellants/applicants in moving his motion informed this court that he sought a similar application at the court below and the application was refused. Reference was made to the, Ruling of the lower court annexed to the motion paper. It was submitted for the applicants that paragraphs 1, 3, 4, 5, and 6 of the affidavit in support of the application show the res whilst paragraphs 7, 8, 9 and 10 sufficiently show the interest of the applicants in the res. Paragraphs 11, 16, 22, 24 and 25 show the mischief the applicants according to them are seeking to prevent. It was also submitted that paragraphs 14 and 15 of the affidavit of the applicants show that the 1st respondent is already using the land for commercial purpose whilst paragraphs 18, 19, 20 and 21 show the fate of the applicants in the court below. It is the contention of the learned counsel for the applicants that their Notice of Appeal which contains the grounds of appeal shows arguable appeal and paragraph 22 shows irreparable damage. It was contended that paragraph 23 of the affidavit of the applicants shows that the order sought is beneficial and consistent with common sense to all the parties. Reference was made to the counter-affidavit filed by the 1st respondent on 5/5/97. It is of 45 paragraphs. It was submitted that the oath is of doubtful integrity visa- vis the motion of the applicants. It is the contention of the applicants that the counter-affidavit substantially supports their own case and therefore there is no counter-affidavit as such. It was submitted that paragraphs 13, 19, 21, 26 and 33 therefore show a more than innocent bystander posture of the 1st respondent with 2nd respondent. It was contended that paragraphs 23 and 24 whilst denying that they are not on the land for commercial purpose is contradicted by paragraph 36 which says that the development that they are making are beneficial to the applicant. It was submitted that the 1st respondent will not suffer any damage if the money is paid into court. It is the contention of the learned counsel for the applicants that the 1st respondent has something to hide and as such, this court should grant the application of the applicants.
Mr. Dokubo learned counsel for the 1st respondent submitted that this is an application that ought not to have been brought to court in the first place because it lacks merit completely and it was brought in utter bad fate. It was contended that in order that this Honourable Court may make the order sought it must have either of this two: The maintenance of the status quo or the preservation of the subject matter of the litigation. It was submitted that the money sought to be attached by the application flows directly from an agreement between the 1st respondent and the 2nd respondent and if that is the case, is that money due and owing at this point in time? It was submitted that the money is not due and owing at this point in time. Reference was made to paragraph 7 of the counter-affidavit to show that the 1st respondent has suspended any money due under the agreement. That this was done by a notice of suspension of payment dated 8/8/96 annexed as Exhibit “TSKJ.” It was contended that the status quo that must be maintained must be that state of affairs whereby payment due under the said agreement has been suspended by Exhibit “TSKJ1.” It is the contention of the learned counsel for the 1st respondent that granting the application in effect negates Exhibit’ 8′ annexed to the applicants’ motion. It was submitted that the applicants cannot in one breath condemn the agreement while in another breath they seek to derive benefit therefrom as this is contrary to the doctrine of election. It was contended that one cannot approbate and reprobate at the same time. On the question of preservation of the subject matter of the litigation it was submitted that the subject matter is not in question, that is, the land. It was submitted that the parties are engaged in this litigation on the question of title to the land. It was argued that the subject matter is not the money but a declaration of title to the land. It was submitted that all the parties are agreed that the 1st respondent should remain on the land and develop it. It is also the contention of the learned counsel for the 1st respondent that it is evident from the totality of the affidavit that the land should be developed. It was also contended that there is no irreparable damage that will be done to the applicants if the application is refused. It was submitted that at the end of the day if the appeal of the applicants succeeds the 1st respondent will be made to pay and there is nothing to show that at the end of the day the money will not be there and therefore, there is nothing to be preserved. It was also submitted that the applicants being strangers to the agreement they cannot come to this court to ask for a relief based on the agreement as there is no privity of contract between the applicants and the 1st respondent. Reference was made to the case of Dunlop v. Selfridge (1915) A.C. 847 and Chitty on Contract 25th Edition page 662 paragraph 1221. The case of Brollo (Nig) Ltd v. Nkwocha (1995) 9 NWLR (Pt.419) 361 at 368 was also cited. Reference was made to granting a substantive prayer at interlocutory stage. It was submitted by the learned counsel for the 1st respondent that if this application is granted it will render nugatory the substantive appeal before this court which is exactly on the same terms. On preservation of property reference was made to Oluwa Glass Ltd. v. Oladapa Ehinlenwo (1990) 7 NWLR (Pt.160) 14 ratio 1. Learned counsel for the 1st respondent therefore urged this court to disregard this application and instead expedite action on the substantive appeal. In other words this application should be dismissed by this court.
Mr. Abigo for the 2nd respondent associated himself with the submission of the learned counsel for the 1st respondent.
Mr. Wali for the 3rd respondent did not oppose the application.
Mr. Pepple for the 4th respondent also associated himself with the submissions of the learned counsel for the applicants.
Mr. L.E. Nwosu further submitted in his reply that the money and the res are one and the same thing.
Reference was made to Order 33 Rule 2 of the Rivers State High Court Rules. It is pertinent to state that there is an appeal pending in this court in respect of this matter. The Notice of Appeal dated 25th April, 1997 was filed on the same date. Part of the Notice of Appeal reads:-
“2. PART OF THE DECISION APPEALED AGAINST
The whole decision especially:-
(a) That part of the Ruling where His Lordship refused to Order the Domiciliation of the sum of USD360,000.00 in the name of the lower court Registrar being 1st instalment of the 8 year rent reserved and payable by the 1st respondent for the land the subject matter of litigation and into which land the 1st respondent had already entered and occupied; and
(b) That part of the Ruling where His Lordship held that there was no privity of contract between the plaintiffs/appellants and 1st defendant/respondent in the Agreement for Lease of the Land in dispute and therefore cannot apply for the preservation of the $360,000.00 – the proceeds therein reserved to be paid as 1st year Rent.
4. RELIEFS SOUGHT FROM THE COURT OF APPEAL
i. Setting aside the entire decision of the court below for being perverse,
ii. An order directing that this suit be heard by another Judge in Rivers State Judiciary for the reason only of the trial Court’s pronouncement or finding on substantive matter at the interlocutory stage.
iii. Any further Order or directive for the preservation of the monies now due i.e. $360.000 as 1st year’s Rent, and in the future to become due forming part or all of the USD 700.000 reserved to be paid as 8 year rent by the 1st Respondent for the monies and Land in contest in order that the same might continue to yield interests for the benefit of the successful party between the plaintiffs and 2nd to 4th Respondents inter se pending the determination of the substantive suit.”
The reliefs sought by the applicants in their motion paper are reproduced above. Unless one wants ro engage in semantics which is not our duty here, it can be readily seen that the reliefs sought by the appellants/applicants in their Notice of Appeal which contains the grounds of appeal are one and the same thing as the reliefs sought in their motion paper which is now before us for consideration. It seems to me to be untidy and wrong in Law to appeal against a decision of a lower court and immediately thereafter run to the Appeal Court to which the appeal lies to file a motion seeking the same relief~ in the notice and Grounds of Appeal. This is exactly what the appellants/applicant; have done in this matter. I refrain to say that it amounts to an abuse of court’s process but it suffices for me to say that it is untidy and wrong in law for reasons which I will touch later in this Ruling. It should be noted that the learned counsel for the appellants/applicants and that of the 1st respondent went on a wild goose chase in their submissions by unwittingly arguing the substantive appeal instead of directing their minds and energy to the motion paper. It is however gratifying that the learned counsel for the 1st respondent at the conclusion of his submissions struck the right chord when he said that he would like to refer to granting a substantive prayer at interlocutory stage. He went on to say that if this application is granted it will render nugatory the substantive appeal before this court which is exactly on the same terms.
It seems to me that the law is now settled that a ruling on an interlocutory matter should not render nugatory the substantive suit. See: Egbe v. Onogun (1972) 1 All NLR P.95 at Pp.98. In the case of D.O. Orji v. Zaira Industries Ltd. & Anor (1992) 1 NWLR (Pt.216) 124 at P.141. The Supreme Court said:-
“It is the duty of the trial court, when dealing with interlocutory matters, to avoid making statements giving the impression that it has made up its mind on the substantive issue on trial before it, as justice must not only be done, but must be seen to have been done. In the instant case, although the appeal fails, since the learned trial Judge had expressed a view on the substantive issue before it, the interest of justice demands that the case be heard by another Judge.”
I have no doubt in my mind that the above statement of the Supreme Court also holds good for the appellate court.
I have read carefully the affidavit in support of this application and the counter-affidavit in opposition to it and I cannot see in what way this motion can be adequately dealt with by this court without making a pronouncement or comments on the substantive appeal as the said motion goes to the root of the appeal yet to be heard and determined. That being so, I agree with the learned counsel for the 1st respondent that this court should disregard this application and instead expedite action on the substantive appeal. In the result, this motion is devoid of merit and should be dismissed and it is hereby dismissed for the reasons which I have given above. It seems to me that the learned counsel for the applicants has jumped the gun and he should keep his powder dry until the substantive appeal is heard.
From the nature of this application, I make no order as to costs.
KATSINA-ALU, J.C.A.: I read in advance the ruling just delivered by my learned brother Rowland, J.C.A. with which I am in entire agreement.
It is a fact, from the papers before us in this application that the reliefs sought in the motion are one and the same thing with the reliefs sought in the substantive appeal which is yet to be determined. That being so, il does seem that to grant the reliefs sought in this application will invariably dispose of the substantive appeal. This approach is wrong. It is bound to occasion injustice. A court of law should not and must not decide the very same matter which is yet to be determined in the substantive case before it at the interlocutory stage. I think this is elementary. See Egbe v. Onogun (1972) 1 All NLR 95 at page 98; Ndoma-Egba v. Govt. of Cross River Stare (1991) 4 NWLR (Pt.188) 773. In the later case, this court said:
“In dealing with an application for leave, a trial Judge must ensure that he deals with that application only and not dabble into the merits of the main application which is not before him.” Although the facts in the above case are different nonetheless the principle of law therein stated is applicable to the present motion before us.
See also S.C.C. (Nig) Ltd v. Our Line Ltd (1995) 5 NWLR (Pt. 395) 344; ICON Ltd. v. F.B.N. Ltd. (1995) 6 NWLR (Pt.401) 370. In the latter case this court said at page 377 as follows:
“It cannot be contested that at this stage (interlocutory stage) issues that would be canvassed at the appeal ought not be heard, argued by counsel and decisively commented upon by the court.” In the light of the foregoing and the fuller reasons given by my learned brother Rowland, JCA I too dismiss this application. I also make no order as to costs.
ONALAJA, J.C.A.: It has been a delight, pleasure and privilege to have had a preview in draft of the lead ruling just delivered by my learned brother, OLUFEMI ROWLAND JCA who in his character dealt graphically and lucidly with all the relevant issues that came up for consideration in this ruling touching an interlocutory appeal pending before us. Having critically and analytically appraised the reasoning and conclusion in the lead ruling upon a cool calm consideration, I endorse the reasoning and conclusion arrived at in the lead ruling giving me no option than to adopt the reasoning and conclusion as my own. This is without prejudice to making few comments of my own at least by way of emphasis.
During the arguments by the applicants and respondents I warned learned counsel to the parties that the application before us and which gave rise to this ruling was not the substantive appeal now pending before us as they proffered arguments to be urged during the substantive appeal before us instead of the words of OLIVER CROMWELL that they should have kept their powder dry and hope in the LORD when the substantive appeal is argued.
It is trite law accepted in our civil jurisprudence that where an appeal is filed against the decision of a court, the court from which the appeal lies as well as the courts to which the appeal lies have a duty to preserve the subject matter of the litigation (the res) so as to ensure that the appeal if successful, is not rendered nugatory. This is based on the principle that all courts of record have inherent power to preserve the res be it tangible or intangible so pronounced ESO, J.S.C. in Kigo v. Holman Bros Battersby & Ors (1980) 5/7 SC 60 at 67.
This undoubted power is to be exercised judicially and judiciously so as not to decide in the interlocutory appeal or application the subject matter of the substantive appeal Egbe v. Onogun (1972) All NLR page 95 at page 98 per SOWEMIWO, JSC (as he then was) my unreported ruling in Suit LD/2198/92 between Hon. Olatunji Ajose Adeogun v. Mr. Adebola (The Trespasser) delivered on 12th day of February 1992; Odogwu v. Odogwu (1990) 4 NWLR (Pt. 143) page 224 at 230; D.O. Orji v. Industries Ltd. & Anor (1992) 1 NWLR (Pt.216) page 124 at 141 SC.
The order sought in this application is exactly the same relief sought in the substantive appeal. The applicant should make haste slowly and for this court not to peremptorily decide the issue in the substantive appeal. The application is refused. I abide with the consequential order of costs. Application dismissed.
Appearances
- E. Nwosu, Esq. For Appellant
AND
S.B. Dokubo, Esq. (with him, C. Webber, Esq.; J.C. Nwobike, Esq.; C. Uguru, Esq; J.H.C. Chibor, Esq.) – for the 1st Respondent
F.J. Abigo, Esq.- for the 2nd Respondent
O. Wali, Esq. – for the 3rd Respondent
O.W. Pepple, Esq. – for the 4th Respondent For Respondent
