Legalpedia Citation: (2003-03) Legalpedia 99103 (CA)

In the Court of Appeal

Holden At Ilorin

Mon Mar 17, 2003

Suit Number: CA/IL/57/2001

CORAM

Patrick Ibe Amaizu Justice,Court of Appeal

Walter Samuel Nkanu Onnoghen Justice,Court of Appeal

Ja’afaru Mika’ilu Justice, Court of Appeal

PARTIES

1. H.R.H. ALHAJI IBRAHIM SULU-GAMBARI (The Emir Of Ilorin For Himself And On Behalf Of The Ilorin Emirate Council)
2. ILORIN EMIRATE COUNCIL
3. MALLAM KASALI YAKUBU
4. ALHAJI ISIAKA LABAIKA
5. ASA LOCAL GOVERNMENT COUNCIL

APPELLANTS

ALHAJI SAADU A.O. BUKOLA (The Alaboto Of Aboto Oja)

RESPONDENTS

AREA(S) OF LAW

APPEAL, CHIEFTANCY, CUSTOMS, EVIDENCE, JUDGMENT, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The plaintiff in the substantive suit was appointed the Alaboto of Aboto-Oja in July, 1998, in accordance with the custom and tradition of Aboto-Oja. Following a misunderstanding between him and the Asa Local Government Council which pays his salary, he was given a query. It was dated 17th August, 2000. He answered the query on the 21st of August, 2000. The Local Government Council was not satisfied with his reply and recommended his removal. He was accordingly removed from office by the Ilorin Emirate Council.

By letter dated 13th November, 2000, the 2nd defendant was appointed to replace him as the Alaboto of Aboto by the 1st defendant. Following the appointment, he brought an action in the lower Court, claiming among other things, a declaration that he is still the Alaboto of Aboto-Oja in Asa Local Government Area.

Following a preliminary objection raised by the learned counsel for the respondents, the lower Court in a ruling delivered on the 28th February, 2001, after hearing counsel on the objection, stated that a permanent or mandatory injunction cannot be sought in an interlocutory application and proceeded to strike out the preliminary objection.

Thereafter, the lower Court in a considered ruling decided that there a serious issue to be tried in the substantive suit but that the applicant has a strong probability of succeeding in his reliefs against the respondents. For the above reasons the application succeeded in part and was granted as prayed (restraining the 2nd respondent Mallam Kasali Yakubu from parading himself, calling or ascribing to himself the title of Alaboto of Aboto-Oja or in any way portraying himself out as such pending the determination of the suit).

The respondents were dissatisfied with the above ruling. They lodged an appeal to this Court against the ruling.

HELD

Appeal dismissed

ISSUES

1. Whether the trial Court was right in the manner it exercised its discretion in granting an order of interlocutory injunction in favour of the respondent when the action to be restrained has already been completed and more so that the res, i.e., the stool of Alaboto of Aboto-Oja is not a perishable commodity?

Whether the trial Court was right in pronouncing on the substantive suit when the case has not gone on to trial?

RATIONES DECIDENDI

STANDARD OF PROOF – STANDARD OF PROOF IN CIVIL PROCEEDINGS – OMNIBUS GROUNDS IN CIVIL AND CRIMINAL PROCEEDINGS

It has to be remembered that in a civil action, the standard of proof is on the preponderance of evidence. Consequently, it is the duty of a party to an action to adduce evidence which ought reasonably to satisfy a Court that the facts ought to be proved are established. Union Bank of Nig. Ltd. v. Michael Nnoli (1990) 4 NWLR (Pt. 145) 530. In proving an issue in a civil case therefore, the evidence of both parties to the action shall be put on an imaginary scale and weighed to see where the scale tilts. Mogaji v. Odofin (1974) 4 SC 91.

On the other hand, if the commission of a crime by a party to any proceeding is directly in issue, it must be proved beyond reasonable doubt.

It is because the standard of proof in civil and criminal cases is not the same, that the wordings of omnibus ground of appeal in the two action are also different. In civil cases it is:

– the verdict is unwarranted, unreasonable and cannot be supported having regard to the weight of evidence;

while in criminal case, it is,

the verdict is unwarranted, unreasonable and cannot be supported having regard to the evidence.

I observe that the intendment of the provisions of Order 3 Rule 2(2) and (4) of the Court of Appeal Rules, 1981, is simply to furnish the opposing party, i.e., the respondent with enough particulars which would bring home to him the error complained of in a ground of appeal. The omnibus ground is self explanatory and consequently does not require any particulars. – Per P. I. Amaizu, JCA

INJUNCTION – CONDUCT OF COURTS TO APPLICATIONS FOR INJUNCTION

It is a fundamental principle of our legal system for the grant of an application for an injunction that the application will always be granted to support a legal right. – Per P. I. Amaizu, JCA

APPEAL – WHERE THERE IS AN APPEAL AGAINST A JUDGMENT OF A LOWER COURT ON A POINT OR ISSUE

It is trite that when there is an appeal against a judgment of a lower Court on a point or an issue, the appeal stands or falls on the point or the issue alone. Any other points or issues not raised or argued still rest as valid. Odiase v. Agho (1972) 3 SC 71. – Per P. I. Amaizu, JCA

INTERLOCUTORY INJUNCTIONS – CONDUCT OF COURTS IN EXERCISING THEIR DISCRETIONARY POWERS TO GRANT INTERLOCUTORY INJUNCTIONS

It has been accepted that the principle upon which a Court acts in granting an interlocutory injunction pending the determination of the substantive suit must be strictly observed. A cursory look at the decided case shows that it is impossible to lay down a general rule regulating the exercise of the discretion of the Court in all cases. It must however be borne in mind that an interlocutory injunction is not granted as a matter of course.

I am aware that the appellants quoted a number of cases, notably – Joseph Ogundele Ajewole v. Oba E.A. Adetimo & Ors. (1996) 2 NWLR (Pt. 431) 391; Gwarbo Gever & Ors. v. James T. China (1993) 9 NWLR (Pt. 315) 97.

Where the Courts refused an application for an interlocutory injunction restraining a party from holding himself out or otherwise acting or parading himself as clan head of his community. In my humble view, before this Court can rely on the decisions, it must be shown that the facts of those cases are the same as the facts of the present case. As Aderemi, JCA observed in the case of Owners of the M.V. Fortunate & Ors. v. The Owner of the M. V. African Hyacinth & Ors. (2002) 23 NWLR 172:-

“The exercise of the discretion depends on the facts and circumstance of each case and that in matters of discretion no one case can be an authority for the other …” – Per P. I. Amaizu, JCA

INTERLOCUTORY INJUNCTION – THE PRINCIPLES GOVERNING THE GRANT OF INTERLOCUTORY INJUNCTIONS

The question is, did the lower Court pronounce on the substantive suit? To answer the question one has to examine the history of applications for interlocutory injunction.

It is trite that the principles governing the grant of interlocutory injunction are well settled. Unfortunately, however, statement and restatement of those principles have in some cases been in forms which have created confusion. This fact is brought out clearly in the observation of:

Lord Diplock in the case of American Cyanamid v. Ethicon Ltd. (1975) AC 396 at 407. The observation runs thus:-

” … the use of such expression as a “probability”, “prima facie case” or a “strong prima facie” case in the context of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object to be achieved by this form of temporary relief”. The Court no doubt must be satisfied that the claim is not frivolous or vexatious, in other words, that there is a serious question to be tried.”

It is, in the light of the above that the proposition now in an application for a grant of an interlocutory injunction is that an applicant must show that there is a serious question to be tried in the substantive suit. – Per P. I. Amaizu, JCA

COURTS – WHERE THE COURT CAN INVOKE RESTORATIVE MANDATORY INJUNCTION

I am of the strong view that whereas it is the general principle of law that an injunction cannot be granted to restrain a completed act, where the party sought to be restrained deliberately proceeds with the action intended to be restrained by an order of injunction after becoming aware of the tendency of an application before a competent Court for his restrain – as in the misconduct of total disrespect to the Court of law. To condone such a situation amounts to encouraging ‘executive lawlessness’ which will only jeopardise the rule of law and civilised conduct.

I think that in the circumstance of the facts of this case a restorative mandatory injunction can be invoked by the Court to deal with the defendant who, for all intents and purpose, has no respect for the Court of law. In the case of Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77, (1972) 1 ANLR 483 at 487 the Supreme Court referred to the case of Sanni v. Otesanya where it ordered the setting aside of the writ of possession already executed and returned the parties to the status quo ante pending the determination of the motion for stay of execution – see also Ezegbu v. F.A.T.B. (1992) 1 NWLR (Pt. 220) 699 at 730 – 737 and Ojukwu v. Governor of Lagos State (1985) 2 NWLR (Pt.10) 699.

The locus classicus in this respect in the case of Daniel v. Ferguson (1891) 2 Ch. 27 at 30 where Lord Justice Kay stated thus:-

“The question to be decided at the trial may be of some nicety; but this is not the time to decide them. After the defendant had received notice on Saturday that an injunction was going to be applied for, he set a large number of men to work, worked all night and through nearly the whole of Sunday and by Monday evening, at which time he received notice of an interim injunction, he had run up his wall to a height of thirty-nine feet.

Whether he turns out at the trial to be right or wrong, a building which he has erected under such circumstances ought to be at once pulled down, on the ground that the erection of it was an attempt to anticipate the order of the Court. To vary the order under appeal would hold out an encouragement to other people to hurry on their building in the hope that when they were once up the Court night decline to order them to be pulled down I think that this wall ought to be pulled down now without regard to what the result of the trial may be”. – Per W. S. N. Onnoghen, JCA

INJUNCTION – WHERE RESTORATIVE ORDER OF INJUNCTION CAN BE GRANTED

Depending on the facts and circumstances, restorative order of injunction can be granted to set aside completed acts and restore the parties to the status quo ante bellum if the defendant sought to be restrained completed the act after having being served with a notice of motion seeking to restrain the act he hurriedly completed before the date fixed on the motion for hearing. – Per W. S. N. Onnoghen, JCA

CASES CITED

STATUTES REFERRED TO

1. Court of Appeal Rules, 1981

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