3PLR – A.G. ONDO STATE V. EKITI STATE

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]

A.G. ONDO STATE

V.

EKITI STATE

IN THE COURT OF APPEAL

[ABUJA DIVISION]

3PLR/2001/2  (CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS:

DAHIRU MUSDAPHER, JCA (Presided and delivered the leading judgment)

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, JCA

ALBERT GBADEBO ODUYEMI, JCA

 

BETWEEN

1. MRS. ANNE KESHINRO KADIYA
2. CHIMI KADIYA (INFANT)
3. YIMI KADIYA (INFANT)

By their next friend

MRS. ANNE KESHINRO

 

AND

1. JIBO KADIYA
2. ZAKKA KADIYA

As Administrators of the Estate of Hon. JOHN KADIYA (deceased)

3. ALHAJI ABUBAKAR MOHAMMED

 

REPRESENTATION

I.F. Chude for the appellants

E.P. Pwajok for the 1st and 2nd respondents

1. Tetengi for the 3rd respondent.

 

MAIN ISSUES

PRACTICE AND PROCEDURE – APPEAL – Appellate court – circumstances when it can interfere with exercise of discretion by trial court.

PRACTICE AND PROCEDURE – COURT – Appellate court – circumstances when it can interfere with exercise of discretion by trial court.

PRACTICE AND PROCEDURE – INJUNCTION – Applicant for injunctive relief – what applicant must show.

PRACTICE AND PROCEDURE – INJUNCTION – Injunctive relief – nature and objective of.

PRACTICE AND PROCEDURE – INJUNCTION – Injunctive relief – need for court in considering an application for same to look at the entire case.

PRACTICE AND PROCEDURE – INJUNCTION – Injunctive relief – principles guiding grant of.

PRACTICE AND PROCEDURE – INJUNCTION – Injunctive relief – whether can be granted on issues not raised in the substantive action.

PRACTICE AND PROCEDURE – INJUNCTION – Injunctive relief – whether can restrain a completed act.

PRACTICE AND PROCEDURE – INJUNCTION – Interlocutory injunction – duty of court considering same not to prejudge the substantive suit.

 

MAIN JUDGMENT

DAHIRU MUSDAPHER, J.C.A. (Delivered the leading judgment):

This is an interlocutory appeal against the decision of Oniyangi, J. in suit No.FCT/HC/CV/329/98. Pursuant to order 8 rule 1, order 33 and under the inherent jurisdiction of the High Court of the Federal Capital Territory, Abuja, the plaintiff applicants prayed for the following orders: –

“1.     An order of interlocutory injunction restraining the 3rd defendant by himself, agents, privies and any person acting through him from further acts of continuing with the construction of building or doing anything whatsoever inconsistent with the rights of applicants over plot No. 1150 within A5 Zone Aso Drive, Maitama, District Abuja, covered by certificate of occupancy No. FCT/ABU/PL. 1416 pending the determination of the substantive suit.

2. And for such further order(s) as this honourable court shall deem fit to make in the circumstances of this suit.”

 

An affidavit containing many annextures was filed in support of the application. The defendants in the aforesaid suit filed counter – affidavit in opposition to the motion. During the hearing of the application, the applicants applied for the Judge to visit the land in dispute and to see for the progress of the building thereon erected by the 3rd defendant, the learned trial Judge in his ruling delivered on the 12/11/99 refused the application. Thereafter learned counsel on all sides addressed the court on the motion and in his reserved ruling delivered the 9th day of December, 1999, the learned trial Judge refused the application to grant the interlocutory injunction recited above. This is an appeal against the refusal to grant the injunction. The facts relevant for the determination of this appeal are that:

 

The plaintiffs claimed to be the widow and the children of late John Jatau Kadiya. The 1st and 2nd defendants are the two children of the late John Jatau kadiya. The third defendant is a businessman, to whom the 1st and 2nd defendants had in pursuance of the grant of letters of administration, by the High Court of Plateau State and resealed by the High Court of the Federal Capital Territory, Abuja sold the land covered by the certificate of occupancy No. FCT/ABU/PL 1416 to the 3rd defendant. The 3rd respondent had in consequence of the purchase took full possession of the land and was building or completed building structures on the land. In the meanwhile the plaintiff took the substantive suit against the 1st and 2nd defendant claiming a number of reliefs, against them as the administrators of the estate of the late John Jatau Kadiya. It was during the pendency of the matter, when the 3rd defendant became aware of its existence applied to be an interested party.

 

Now, in the affidavit in support of the application for interlocutory injunction, the plaintiffs (hereinafter referred to as the appellants and the defendants as the respondents) depose to these facts, which are crucial and pertinent to this appeal.

 

“e.     That her husband in his lifetime owned a property in Abuja known as Plot No.1150, Aso Drive, Maitama Abuja covered by certificate of occupancy No. FCT/ABU/PL.1416. A copy of the certificate is annexed as exhibit.

 

1. That during the lifetime of her husband he gave her the said land as gift and handed over the original certificate of occupancy to the property to her. The copy of hand written note giving her the property is annexed as exhibit B.

 

2. That the entire family of the late John Jatau Kadiya (Deceased) were aware and gave their consents to the wishes of my late husband. A copy of the minute of meetings held for that purpose is annexed as exhibits C1 and C2.

 

1. That when there were rumours of the likelihood of the 1st and 2nd defendants desire to dispose off the property. She advertised a caveat in The Vanguard Newspapers of 29th June 1998 warning the entire world of her interest in the property. A copy of the Vanguard Newspapers is annexed as exhibit D.

 

1. That it was after this advertisement that the 1st and 2nd defendants applied to the High Court of Justice Abuja for reseal of the earlier letters of administration issued by Plateau High Court to cover the Aso Drive property.

 

1. That in defiance to all the steps taken, the first and second defendant purportedly transferred the said plot to the 3rd defendant.

 

1. That despite the order of this court duly served on the 3rd defendant, he proceeded with the building on the premises unabated.

 

1. That the 3rd defendant in order to cause confusion carried on with the building both day and night.

 

1. That except the 3rd defendant is restrained to maintain status quo, she shall suffer irreparable damages, which can never be atoned by damages.

 

1. That the present structure being put in place is not to her taste.”

 

The counter affidavit of Jibo Kadiya to 1st respondent provided under paragraph 3:

 

1. That the late John Jatau Kadiya was never married to the 1st plaintiff.

 

1. That the late John Jatau kadiya got married to the mother of the 1st and 2nd respondents. Mrs. Chodi Kadiya in 1965 (A certificate of the marriage is attached herewith and marked exhibit A1).

 

c.1     That the late John Kadiya never married any one else subsequent to the marriage in paragraph B.

 

c.2     That the 2nd and 3rd applicants are illegitimate children of the late John Kadiya.

 

c.3.    That only the legitimate children of a deceased Irigwe man are entitled to benefit in his estate in case of death intestate.

 

1. That the late John Kadiya died in 1997 without writing any will or making any gift device or bequest.

 

1. That because of (d), the bonafide grown-up children of the deceased applied for letters of administration over the properties of the deceased which application was granted including the property at plot 1150, Aso Drive, Maitama Abuja.

 

1. That there has never been any meeting of the family of late Kadiya, over the wishes of the late John Kadiya.

 

1. That by the Irigwe custom, only the eldest son of the deceased has power to share the estate and no distribution of the estate of the late John Kadiya has been done.

 

1. That 1st and 2nd respondents pursuant to their powers as administrators of the estate of the late John Kadiya sold the property in question to the 3rd respondent.

 

1. That the 3rd respondent duly paid for and took possession of the property and had expended over forty million naira in refurbishing it to his taste before this suit.

 

1. That before the death of John kadiya, the original certificate of occupancy was stolen, which fact prompted me to apply for a certified true copy of the C of O No. 1416″.

 

The counter affidavit filed for the 3rd respondent provided under paragraph 3:

 

“a.     That the plaintiffs/applicants had instituted this suit claiming inter alia against the defendants/respondents jointly and severally a declaration that the 1st plaintiff is entitled to a right of occupancy over the plot of land/ property covered by certificate of occupancy No. FCT/ABU/P1. 1416.

1. That pleadings have already been exchanged. Copies of writ of summons, 1st and 2nd defendant/respondent’s statement of defence and counter claim and the plaintiff/applicants reply to third defendant/respondent’s defence and counter claim are attached to and marked exhibits 1,2, 3 and 4 respectively.

 

1416. That the third defendant/ respondent had prior to the commencement of this suit purchased from 1st and 2nd defendants/respondents and taken over the physical possession of the property covered by certificate of occupancy No. FCT/ABU/PL.1416.

 

5. That this suit was initially commenced against the 1st and 2nd defendant/respondents, until when the 3rd defendant/respondent was served with an order of court. A copy of the order of court served on the 3rd defendant/respondent is attached hereto and marked exhibit 5.

 

1999. That on receipt of the aforesaid order, the3rd defendant/respondent had applied to this honourable court to be joined as a co-defendant, having a vested interest in the said property, which application was so granted on 14th day of July 1999.

 

1. That the 3rd defendant/respondent had not only taken physical possession of the property before this suit but also made improvements and constructed another building, before exhibit 5 was served on him.

 

1. That there is no construction currently on at the site in question.”

 

In his ruling aforesaid, the learned trial Judge refused to exercise his discretion in favour of the appellants and declined to grant the injunctive orders sought. The notice of appeal contains four grounds of appeal and in the brief for the appellants two issues have been identified, formulated and submitted to this court for the determination of the appeal. The issues are: –

 

“1      Whether the appellants had in the affidavit evidence made out a prima facie case entitling them to a grant of the injunction sought.

 

2. Whether the lower court had not at the interlocutory stage made pronouncements that tend to prejudge the main issues at the trial.”

 

ISSUE ONE

 

It is submitted for the appellants by the state of the affidavit evidence a prima facie case has been made out of their legal right entitling them to an interlocutory protection by the grant of the injunction sought. And the court having so found the existence of the legal right, the trial court ought to have granted the injunction sought. It is again submitted, the appellants were not at the stage bound to establish a strong prima facie case or establish a strong possibility that they would likely succeed in the action at the end of the trial. Learned counsel referred to American Cynamid Co. v. Ethicon Ltd (1975) AC 396 at 407. The applicant having shown the existence of legal right to the property in dispute and has also shown that there are serious matters to be considered at the hearing of the substantive matter, the court should have exercised the discretion in their favour vide Akapo v. Hakeem Habeeb (1992) 2 NWLR (Pt. 247) 266. Globe Fishing Industries Ltd v. Coker (1990) 7 NWLR (Pt. 162) 265. It is again argued that the purpose of an interlocutory injunction pending the determination of the suit is to maintain the status quo so that nothing new is done which may adversely affect the rights or interests of whoever succeeds in the outcome of the litigation. Agba v. BHI Holdings Ltd (1998) 1 NWLR (Pt. 535) 696; Ladunni v. Kokoyi (1972) 1 All NLR (Pt.1) 133.

 

It is further submitted that the arguments and the facts discussed by the respondents that the 1st appellant was never legally married to John Jatau Kadiya or that 2nd and 3rd appellants are not his legitimate children are of irrelevant consideration at this stage. They are matters for substantive case. See Obeya Memorial Hospital v. A.G. of the Federation (1987) 3 NWLR (Pt. 60) 325 at 338. It is further argued that the trial court did not consider the doctrine of the balance of convenience. The appellants stood to loose more if the status quo ante was not maintained while the respondents will only stop construction which would not occasion any injury to them.

 

For the 1st and 2nd respondents it is argued that it was not possible to grant an interlocutory injunction against construction which by the affidavit evidence had been completed. See Ogbonnaya v. Adapalm (Nig.) Ltd (1993) 6 SCNJ (Pt. 1) 23 at 83.

 

For the 3rd respondent, it is the grant of an order for interlocutory injunction is of discretionary power and in the nature of an equitable relief, it is exercised by the court, based on the facts of the case and where it appears to the court to be just or convenient to do so. See Sotuminu v. Ocean Steamship (1992) 5 SCNJ 1 at 12; Globe Fishing Case (supra), Okoya v. Santili (1990) 2 NWLR (Pt. 131) 172 at 207. Thus from the onset, the court was under no obligation to grant the appellants’ request for the order sought since the circumstances of the case did not warrant it. In the Ogbonnaya case (supra), it was decided that an interlocutory injunction is not a remedy for a wrong that has since been committed. The facts of this case show that the 3rd defendant was in possession and was engaged in construction even before the suit was filed and in his counter-affidavit, the 3rd respondent has shown that he has already completed the building he was engaged in and accordingly the remedy of interlocutory injunction cannot be available to the appellants. The status quo at the time of filing the application for interlocutory injunction was that the building project was already completed so there was nothing to protect in favour of the appellants. It is finally submitted that the learned trial Judge was clearly correct when, on the facts, he declined to exercise his discretion in favour of the appellants.

 

Now an injunction is an equitable order restraining the person to whom it is directed from doing the things specified in the order, or requiring in exceptional situations the performance of a specified act. A claim for injunction is a claim in equity. An injunction granted is generally to protect a legal right, which is in existence, with the object of keeping matters in status quo until the question at issue between the parties is determined. To succeed, an applicant must show that he has sufficient interest in the reliefs sought. See Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129; Ojukwu v. Lagos State Government (1986) 3 NWLR (pt. 26) 39. An injunction relief for the protection of a property will not be available in respect of issues not raised in the action or matters not directly related to the issues raised in the substantive action. See Ogbonnaya case (supra), Akibu v. Oduntan (1991) 2 NWLR (Pt. 171) 1. See also Adenuga v. Odumeru (2001) 10 WRN 128 SC. The right to an interlocutory injunction is not a cause of action by itself. Such right enures and depends on a pre-existing cause of action against a party who had actually invaded or threatened the applicant’s legal or equitable right. See Daewoo v. Hazcon Nig. Ltd (1998) 7 NWLR (Pt. 558) 438. In considering an application for interlocutory injunction the court is entitled to look at the entire case and to give its decision based on all the affidavits filed by the parties. See Saraki v. Kotoye (1990) 4 NWLR (Pt. 143) 144. Injunctive reliefs are discretionary and the courts will always be guided in reaching such a discretion, by looking at all the facts i.e. whether there is a serious issue to be tried in the substantive suits and that the facts disclose a prima facie legal right of the applicant to the interlocutory relief sought, where the balance of convenience lies, the need to maintain the status quo pending the determination of the suit and whether damages will be inadequate under the circumstances. See Abubakar v. J.M.D.B. (1997) 10 NWLR (Pt. 524) 242. In my view, in the instant application, the learned trial Judge had adequately and exhaustively guided himself before he reached his conclusion to refuse the application. It is not the duty of an appellate court to substitute its discretion for that of the trial court, until it is established that the trial court, in exercising such discretion had not acted judiciously or judicially. Thus an appellate court may also interfere and substitute its discretion where it is established that exercise of the discretion of the trial court is characterized by arbitrariness or illegality or by the consideration of extraneous and irrelevant matters or the failure to take into account relevant and material issues. See Oyeyemi v. Irewole Local Government (1993) 1 NWLR (Pt. 270) 462.

 

Considering all the circumstances of the instant case, the learned trial Judge has, in my view, correctly exercised his discretion to refuse the application, especially in view of the fact, that the appellants wanted a reversal of a completed act. For, when the appellants applied for the Judge to visit the disputed land to see whether the building project was completed or not, clearly demonstrated that the appellants did not establish that the building was going on. This was against the positive assertion by the 3rd respondent, that he had completed the building. It is the law that an interlocutory injunction may not be granted to reverse a completed act. See Abubakar v. JMBD (supra). See also CBN v. Ind. Bank Ltd (1997) 9 NWLR (Pt. 522) 712. In any event the conflict in the evidence concerning whether the 3rd respondent, has completed the building or not was resolved infavour of the 3rd respondent, the learned trial Judge was right since the burden of proof was squarely on the appellants. See Oduntan v. General Oil Ltd (1995) 4 NWLR (Pt.387) 1. At the end of the day, I resolve the first issue against the appellants.

 

Turning to the second issue, this in my view has nothing to do with whether the learned trial Judge was right or wrong in his refusal of the grant of the injunctive relief sought. The complaint here is that in his decision refusing the grant of the interlocutory injunction the learned trial Judge made some pronouncement, which in the opinion of learned counsel for the appellants appeared to have prejudged the substantive issue in the trial. In my view that is a matter [that] should be a complaint on the substantive matter should the learned trial Judge in his final judgment find against the appellants and when they appeal against the finding. In any event it has decided in the Globe Fishing case (supra) per Karibi Whyte J.S.C. at page 283 thus:

 

“———— The application is based on facts leading to the substantive case and therefore the court is obliged to hear aspects of the substantive case which will enable it to make the order.”

 

As shown above, while dealing with the first issue, in an application for interlocutory injunction the court must consider all the evidence in the affidavit, those that are for and those that are against the application.

 

Though a Judge must not at interlocutory stage determine the substantive matter, but yet in an application for interlocutory injunction, an applicant must establish an equitable or legal right to the subject matter of the application, that of course of necessity will involve the Judge in considering all the evidence contained in the opposing affidavits and decide whether a prima facie case has been made or not. See Ogbonnaya and Ocean Steamship cases (supra). Some of the issues to be considered shall appear to be part of the substantive matter, though of course, the Judge must not make any pronouncements on the merits, which might prejudge the substantive matter. The learned trial Judge merely stated that at that stage the proof of a legal right or prima facie right to an injunctive relief had not been established by the evidence adduced by the appellant. He further stated that inconsistencies and congestive (sic) could only be resolved by evidence at the trial. The learned trial Judge merely stated that at that stage, the evidence of a legal right to entitle the appellants to a grant of an injunctive relief was not prima facie established by the appellants.

 

In my view, the complaint under this issue is not made out. In the end the two issues submitted for the determination of the appeal having been resolved against the appellants, this appeal is doomed to fail and I accordingly dismiss it. I award costs of N3,500.00 to each set of the respondents.

 

MUHAMMED SAIFULLAHI MUNTAKA-COOMASSIE JCA: I have had the privilege of preview of the lead judgment delivered by my learned brother Musdapher JCA. The facts of the case were clearly and admiringly too stated and the issues canvassed before us were thoroughly thrashed out. There was no pressing need for me to revisit them in my judgment. It is to be noted that what was before Hon. Oniyangi J. was an application for interlocutory injunction restraining the 3rd defendant from further acts of continuing with the construction of building or doing anything whatsoever inconsistent with the rights of applicants over plot No.1150 within A5 Zone Aso Drive, Maitama District, Abuja, pending the determination of the substantive suit. The learned trial Judge was not handling the substantive suit how can he be called upon to determine: –

 

(a)     Whether the 1st appellant was a widow or not of late John Kadiya.

 

(b)     How can he determine whether or not the deceased has ever married the 1st plaintiff;

 

(c)     Whether or not 2nd and 3rd appellants are illegitimate children of the late John Kadiya; and

 

(d)     Finally how can the learned trial Judge be called upon, on the affidavit evidence, to determine the particular custom of Irigwe people concerning who and who are entitled to inherit the estate of a deceased man. Without adducing evidence of a customary law to that effect?

 

The objective of an interlocutory injunction, it goes without saying, is to preserve matters in status quo until the case can be tried. Its aim is to protect a right claimed by the applicant – Ladunni v. Kukoyi (1972) 1 All NLR (Pt. 1) 133. See also Ubani v. Ogolo (1998) 3 NWLR (Pt. 540) 120. All the above issues and others cannot be dealt with legally at the stage of interlocutory proceedings. Until the applicants were able to persuade the court of the existence of a legal right to be protected the court is not likely to grant an injunction.

 

The burden, no doubt, is on the applicant for such protective relief to say so and prove same by showing that he or she has sufficient interest in the reliefs sought. The locus classicus on this issue is Ojukwu v. Lagos State Government (1986) 3 NWLR (Pt. 26) 39.

 

My lord Musdapher JCA in the lead judgment had painstakingly dealt with all these issues and the authorities relied by him are quite unassailable. I do not intend to re-produce them here. The learned trial Judge in refusing to grant the interlocutory injunction has relied on a solid ground and his decision in so refusing cannot be possibly faulted.

 

What the law says is that a Judge considering an interlocutory injunction cannot, at that stage determine the substantive matter. But he is obliged to consider all the affidavits evidence of both parties in order to arrive at a decision whether or not a prima facie case has been made out –Ogbonnaya v. Adapalm Nig Ltd (1993) 6 SCNJ (Pt. 1) 23/83; and Abubakar v. J.M.D.B. (1997) 10 NWLR (Pt. 524) page 242. For the above brief analysis and for the fuller reasons adumbrated in the lead judgment of Musdapher JCA I also agree that the learned trial Judge has judicially exercised his discretion in holding that the appellants have woefully failed to establish by evidence that a legal right had existed to entitle them to the reliefs sought by them. I hold as held by my learned brother, Musdapher JCA that this appeal lacks merits and is doomed to fail. It is hereby dismissed by me. I endorse the orders as to costs.

 

ALBERT GBADEBO ODUYEMI, J.C.A: I have had the privilege of reading in advance the judgment just delivered by my learned Lord, Dahiru Musdapher, J.C.A.

 

The appellants are mistaken in their assertion that the learned trial Judge found that applicants had made a prima facie case. On the contrary, what the learned trial Judge decided after a thorough consideration of the affidavit evidence was that the inconsistencies in the affidavit evidence of the applicants even at that interlocutory stage, tend to inhibit a finding of applicants having made a prima facie case of entitlement to an injunctive remedy.This finding cannot be held contrary to the conclusion of the trial Judge. He has a duty to consider all the circumstances – including the available evidence in the exercise of his judicial discretion. His Lordship has given a thorough consideration to the issues raised in this appeal. I agree with the reasons therein as well as the conclusion which I adopt as mine.

 

In the event I too agree that this appeal lacks merit and I dismiss it. I also abide with the order as to costs.

 

Cases referred to in the judgment

Abubakar v. J.M.D.B. (1997) 10 NWLR (Pt. 524) 242.

Adenuga v. Odumeru (2001) 10 WRN 104.

Agba v. BHI Holdings Ltd (1998) 1 NWLR (Pt. 535) 696.

Akapo v. Hakeem-Habeeb (1992) 2 NWLR (Pt. 247) 266.

Akibu v. Oduntan (1991) 2 NWLR (Pt. 171) 1.

American Cynamid Co. v. Ethicon Ltd (1975) A.C 396.

CBN v. Ind. Bank Ltd (1997) 9 NWLR (Pt. 522) 712.

Daewoo v. Hazcon Nig. Ltd (1998) 7 NWLR (Pt. 558) 438.

Globe Fishing Industries Ltd v. Coker (1990) 7 NWLR (Pt. 162) 265.

Ladunni v. Kukoyi (1972) 1 All NLR (Pt. 1) 133.

Obeya Memorial Hospital v. A.G. of the Federation (2000) 24 WRN; (1987) 3 NWLR (Pt. 60) 325.

Oduntan v. General Oil Ltd (1995) 4 NWLR (Pt.387) 1.

Ogbonnaya v. Adapalm (Nig.) Ltd (1993) 6 SCNJ (Pt. 1) 23; (1993) 5 NWLR (Pt. 292) 147.

Ojukwu v. Lagos State Government (1986) 3 NWLR (Pt. 26) 39.

Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129.

Okoya v. Santili (1990) 2 NWLR (Pt. 131) 172.

Oyeyemi v. Irewole Local Government (1993) 1 NWLR (Pt. 270) 462.

Saraki v. Kotoye (1990) 4 NWLR (Pt. 143) 144.

Sotuminu v. Ocean Steamship (1992) 5 SCNJ 1.

Ubani v. Ogolo (1998) 3 NWLR (Pt. 540) 120.