MRS HAWA GANKON v. UGOCHUKWU CHEMICAL INDUSTRIES LTD.
July 9, 2025NICHOLAS WANKEY VS THE STATE
July 9, 2025Legalpedia Citation: (1993) Legalpedia (CA) 61719
In the Court of Appeal
HOLDEN AT ABUJA
Tue Jun 22, 1993
Suit Number: CA/L/225/92
CORAM
OBANDE FESTUS OGBUINYA
Chidi Nwaoma Uwa JCA
EMMANUEL OLAYINKA AYOOLA
PARTIES
OLISA AGBAKOBA APPELLANTS
1. THE DIRECTOR, STATE SECURITY SERVICE2.THE ATTORNEY-GENERAL OF THE FEDERATION
AREA(S) OF LAW
SUMMARY OF FACTS
The Applicant’s Nigerian Passport was seized by the agents of the 1st Respondent. He thereafter filed a motion for a declaration that the seizure of the passport was “a gross violation of the his right to personal liberty, freedom of thought, expression and freedom of movement respectively granted under sections 32, 35, 36 and 38 of the Constitution of the Federal Republic of Nigeria, 1979 as amended.” He also sought for an order of mandatory and perpetual injunctions. The trial judge dismissed the application, hence, the Applicant appealed to the Court of Appeal. Before the hearing of the appeal filed, the Applicant was invited to attend the World Conference on Human Rights in Vienna, Austria from 14th to 25th June, 1993. He however realised that he had no passport to enable him make the trip. His solicitors therefore filed a motion on 21st April, 1993 for an interim order directing the Respondents to release forthwith the passport pending the hearing and determination of the appeal.
HELD
Application Granted
ISSUES
Whether this court has the power to make the Order sought by the applicant. If the answer to (1) is in the affirmative, whether there are circumstances disclosed in the affidavit to enable this court make the order sought.
RATIONES DECIDENDI
INTERLOCUTORY APPLICATION- DUTY OF COURT TO REFRAIN FROM DETERMINING THE MERITS OF A SUIT AT THE INTERLOCUTORY STAGE
“The law is elementary that a court of law should refrain from adjudicating and determining the merits of the matter at the interlocutory stage. See Col Akilu v. Chief Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) 122 at 175; Ladokev. Olobayo( 1992) 8 NWLR(Pt.261 ) 605; Olaniyi v. Aroyehun (1991) 5 NWLR (Pt. 194 ) at 692. A court of law should, on no account, deal with the live issue in the appeal at the interlocutory stage because that will be tantamount to prejudging the issues ever before they are due for determination. Since the Judge will be left with nothing to determine at the appeal stage, he should not take that precipitate step.”
COURT- FUNCTION OF THE COURT
“We operate the adversary system and we cannot assist one party to make a case against the other party. Our main function is to hold the balance evenly between the parties. We cannot do more. We cannot even do less.”
INJUNCTION- CONSIDERATIONS BY THE COURT IN GRANTING AN INJUNCTION
“In an application of this nature a court of law has to consider amongst other grounds, (a) the desirability or otherwise of maintaining the status quo pending the determination of the appeal. See Ladunni v. Kukoyi and others (1972) 3 S.C. 31; (1972) 1 All NLR. 133 Donmar Production Ltd. v. Bart and Others (1967) 1 WLR 740, Kanno v. Kanno and Others (1986) 5 NWLR. (Pt.40) 138; Akibu v, Oduntan (1991) 2 NWLR (Pt.171) 1; (b) the balance of convenience (See Nwangana and Others v. Military Governor of Imo State and Others (1987) 3 NWLR (Pt.59) 185 and (c) the substantiality or otherwise of the merits of the case on appeal See Nwosu and Another v. Mbaekwe and Another (1973) (1973) 3 E.C.S.L.R. 136; Nigeria Civil Service Union and Another v. Essien and Another (1985) 3 NWLR (Pt. 13) 306; Woluchem v. Wokoma (1974) 3 S.C. 153; Obeya Memorial Specialist Hospital Ayi-Onyema Family Limited v. Attorney-General of the Federation and Another (1987) 3 NWLR (Pt.60) 325.”
INTERIM ORDER- DUTY OF THE JUDGE IN AN APPLICATION FOR INTERIM ORDER
“The duty of a Judge in a motion, such as this, for an interim order, is to consider upon the evidence before him, whether the applicant shows a probable relief at the hearing. At this stage, the Judge is not expected to resolve conflicts in affidavit evidence on which the claims of the parties ultimately depend or decide difficult questions of law which call for detailed argument and mature consideration only when the merits of the case are heard.”
INTERIM ORDER- DISCRETIONARY RIGHT OF THE COURT TO GRANT INTERIM APPLICATION
“It is by now a well-established principle of law that the grant or refusal to grant an interim order such as the one now sought is a flexible exercise of the jurisdiction of the court. This flexibility is much to be encouraged because hardly are the circumstances of two cases the same, even though they may be identical. But this flexibility should not be seen as a licence for eroding or ignoring firmly established principles of law which had persisted over the years and indeed accepted as the basis for the exercise of that jurisdiction. See Chief Adene v. Alhaji Dantumbu (1988) 4 NWLR (Pt.88) 309.”
AFFIDAVIT EVIDENCE- WHETHER AN AFFIDAVIT CAN BE CORRECTED BY THE COURT OR A DEPONENT
“I am aware of the state of the law that a court of law is not competent to correct affidavit evidence suo motu. I am also aware of the state of the law that a deponent is not generally competent to correct affidavit evidence in court. This is because it is evidence on oath and can only be corrected on oath before the Commissioner of Oaths.”
AFFIDAVIT EVIDENCE- STATUS OF UNCONTRADICTED AFFIDAVIT EVIDENCE
“The law is basic that uncontradicted or uncontroversial affidavit evidence or indeed any type of evidence is generally admissible. See Azeez v. The State (1986) 2 NWLR(Pt.23)541; Egbunna v. Egbuna (1989) 2 NWLR(Pt.106) 773; Ejide v. Ogunyemi (1990)3 NWLR(Pt.141) 758; Nwosu v. lmo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688.”
ORDER OF COURT – WHETHER A COURT CAN HIDE UNDER THE OMNIBUS PRAYER AND MAKE ANY ORDER NOT SPECIFICALLY SOUGHT BY AN APPLICANT
“Does the omnibus prayer really anticipate any form of order the court can make and that the only limitation is the sky? In other words, is there no limit of the order that the court can make under the omnibus prayer? It is my firm view that a court to law cannot hide under the omnibus prayer and make all sorts of orders not specifically asked for by the applicant. The orders anticipated must arise directly from the circumstances of the application. They must arise as a consequence of the legal ambit or purport of the specific order or orders sought. A fresh order completely outside the purview of the specific order or orders sought cannot be made by a court of law. So also is an order which is inconsistent with the specific order or orders sought.”
INTERLOCUTORY INJUNCTION –JUSTIFICATION FOR THE GRANT OF INTERLOCUTORY INJUNCTION BY THE COURT
“The law is clear that an interlocutory injunction would be granted where the right to relief is clear or where there is no doubt as to the legal rights. So also, where there are serious or substantial questions to be investigated at the trial and the balance of convenience justifies an exercise of discretion in the applicant’s favour. In the process of arriving at a decision whether to grant or refuse on interlocutory injunction, adverting to the merits of the applicant’s case, or lack of it, becomes inevitable; not for the purpose of determining and pronouncing on the issues that fall to be determined at the trial but for the purpose of assisting the court in deciding whether or not to exercises a discretion.”
INTERIM INJUNCTION – DUTY OF THE COURT WHILE CONSIDERING AN APPLICATION FOR INTERIM INJUNCTION
“I am inclined to the view expressed by the learned authors of Nelson’s Law of Injunction (2nd Ed.) at p, 979 that:
“In every application for an interim injunction in a pending suit, it is necessary for the Court to enter, to some degree, into the merits of the case in order to determine whether a prima facie case exists………………………………………..when the Court declares that a prima facie case exists, it intends to say that the case of the plaintiff is not without merit.”
INTERLOCUTORY APPLICATION- GROUNDS FOR THE GRANT OF AN INTERLOCUTORY APPLICATION
“There is obviously a distinction between deciding a serious question and determining whether a serious question arises even though both exercises involve advertence to the relevant law as it hears on the issues raised. That the court will express its opinion on the case only so far as is necessary to show the grounds upon which the interlocutory application is disposed of is trite. (See Helsbury’s Laws of England (4th Ed.) vol. 24 para. 964).”
INTERLOCUTORY INJUNCTION – WHETHER COURTS ARE RESTRICTED TO THE TERMS PROPOSED BY APPLICANTS IN AN APPLICATION FOR INTERLOCUTORY INJUNCTION
“I need only add that the court in making an order in an application for interlocutory injunction is, in my view, not restricted by the terms of such order proposed by the applicant. It is for the court in the absence of special circumstances to impose such restraint as will suffice to stop the mischief and keep things at they are until hearing. (See Hulsbury’s op.cit para. 964). Where the terms of the order the court intends to make are not identical with the terme proposed by the applicant or either of the parties, the Court will hear the parties on the terms of the order it proposes to make before making an order.”
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1979 as amended|Court of Appeal Act|
