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ADEDIJI AND ANOTHER
AKINTARO AND ORS
COURT OF APPEAL
MONDAY, 11TH FEBRUARY. 1991.
BEFORE THEIR LORDSHIPS
EMANUEL OBIOMA OGWUEGBU, J.C.A. (Presided)
JUSTIN THOMPSON AKPABIO, J.C.A. (read the leading judgment)
IDOWU OLAYIMIKA AGORO, J.C.A.
Agbo Olaleye, ESQ. – for the Appellants
Chief Ladosu Ladapo, SAN (with him, G.O. Ilori and Miss Lawunmi) – for the 1st, 2nd, 5th and 6th Respondents
Akin Olujinmi, ESQ. (with him, A. Lagide) – for the 3rd Respondent
CHIEFTAINCY MATTERS- Declaratory orders to challenge selection of a candidate in a ruling house – Persons challenging the selection from a different ruling house – Whether proper.
PRACTICE AND PROCEDURE – INJUNCTION – Interlocutory injunction – Condition for grant.
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – Declaration rebel’s-Declaration tied Loan injunction which was refused – Whether declaration can still be grunted.
PRACTICE AND PROCEDURE – LOCUS STANDI – Chieftaincy matter – Whether persons from one ruling house can challenge the selection of a candidate of another ruling house.
PRACTICE AND PROCEDURE – Declaratory relief’s – Declaration tied to an injunction which was refused – Whether declaration can still be granted.
PRACTICE AND PROCEDURE-Interlocutory injunction – Condition for grant.
PRACTICE AND PROCEDURE – Striking out – Striking out a suit under Order 14 Rule 2 High Court Civil Procedure Rules, Oyo State – Registrar’s certificate not yet issued – When trial court can order a striking out.
AKPABIO, J.C.A. (Delivering the Leading Judgment):
This is an appeal against a Ruling of Adeyemi, J., of Oyo State High court, holden at Ibadan in Suit No. I/ 506/88 delivered on 8th December, 1988, in which he not only dismissed the appellants’ application for interim injunction, but Went on to strike out the writ of summons in the substantive suit for failure of the appellants to file their statement of claim within prescribed time.
At the trial court the writ of summons was indorsed as follows: ”The plaintiffs’ claim is against the defendants:
(a) Declaration that the purported selection and or appointment of the 1st defendant as the Bale of ABORERIN in Eruwa, is irregular and a violation of the customs and Tradition of Aborerin Family and is therefore null and void and of no effect whatsoever.
(b) An order of injunction restraining the defendants by themselves, their servants and or agents from giving effect to the purported selection and or appointment of the 1st defendant as the Bale of Aborerin or in any way from appointing and or installing the 1st defendant as the Bale of Aborerin.
(c) A further order of injunction restraining the 1st defendant from acting and or parading himself as the Bale of Aborerin”. This writ was filed on the 29th day of June, 1988. It appears however that before the defendants could enter any appearance in the suit, the appellants filed a “MOTION EX-PARTS” asking for the same reliefs claimed in items (b) and (c) above, “pending the final determination of this case”.
The Ex-Pane Motion was supported by a 23 paragraphed affidavit in which it was disclosed that a similar action had earlier been instituted in suit No. 1/177/ 88 asking for identical reliefs as those in the instant suit in February, 1988. In that case the court also granted an Interim injunction restraining the defendants, inter alia from installing the 1st defendant as the Bale of Aborerin. However, following an intervention by eminent citizens of Eruwa to settle the matter out of court, the plaintiffs were persuaded to withdraw the matter from court as a precondition for the settlement, while the defendants also gave an undertaking not to take any step to install the 1st defendant as the Bale of Aborerin.
However, after the case was withdrawn from court, the defendants turned round and refused to talk any settlement, but instead started to make arrangements for installation of the 1st defendant. They then disclosed at paragraph 19 of their affidavit that arrangements were then in progress to install the 1st defendant as the Bale of Aborerin on Friday, 22nd July, 1988, unless restrained by the order of the High Court.
Based on the above affidavit an Ex-Parte Order was issued against the defendants on the 27th day of July, 1988 restraining the 2nd, 3rd, 5th, 6th and 7th defendants from selecting and/or appointing and/or installing the 1st defendant as de Bale of Aborerin Eruwa pending the determination of the said motion which was to be heard on Notice. The defendants were ordered to be served with copies of the motion papers, and they were duly served.
Following the service of the motion paper and the affidavit of the appellants on the respondents, the respondents reacted by filing a 25-paragraph counter-affidavit sworn to by the 1st respondent, in which they answered all the allegations made against them in the affidavit of the appellants.
It was common ground in the affidavit and counter affidavit of both parties that the Baale Aborerin ruling House comprises three sections as follows:
(1) Adeye (2) Andu and (3) Kusade. Each section was responsible for presenting a candidate in rotation for appointment as Baale of Aborerin in Eruwa whenever a vacancy occurred. Both sides were also agreed that following the death of the late Bale Adekunle of Aborerin, it was not the turn of Adeye section to present a candidate or candidates for the vacant stool. They however differed in their procedure for doing so. The procedure put forward by the appellants was stated at paragraph 7 of their affidavit as follows:
(a) The section whose turn it is to present candidate for the vacant Baaleship position must meet and deliberate on candidate or candidates.
(b) Such candidate or candidates would be presented to the other sections in the house of the deceased Bale for consideration and consent.
(c) The three sections after performing the necessary customary rituals would present the candidate that has the consensus of the three sections to the Eleruwa, (2nd defendant) who would formally install the new Bale.
The respondents on the other hand contended that procedure was as set out in paragraph 4 of their counter-affidavit as follows:
(i) After the death of a Baale, the next section of the Ruling House to present a candidate will meet, deliberate and forward a name of nominated candidate or candidates of their choice to the kingmakers comprising the Jagun, Odofin, Own, Balogun and Asipa.
(ii) The Kingmakers with Jagun as Regent will meet to endorse the candidate or choose one of the List of candidates forwarded by the nominating section of the Ruling House.
(iii) The Kingmakers will then present the name of the chosen candidate to prescribed authority who is the 2nd defendant/respondent in this case.
(iv) The 2nd defendant/respondent approves the appointment and conveys his approval to the successful candidate and members of the public of Eruwa.
(v) The Kingmakers then make arrangements for the installation of the new Baale of Aborerin.
Finally the respondents played their “joker” by revealing at paragraphs 68 of their counter-affidavit the fact that 1st respondent has already been nominated, appointed by the Kingmakers, and his nomination forwarded to the Eleruwa of Eruwa (2nd respondent) by letter dated 10/2/88 a copy of which was exhibited as exhibit “JA/2”. And further that by a notice of approval of appointment dated 22/ 2/88 the 2nd defendant had already conveyed his appointment as Baale of Aborerin in Eruwa to the public. A copy of the said notice was exhibited as exhibit “JA/3”. That it remained only installation, for which arrangements had already been made by the Kingmakers to take place on 15/7/88.
Finally, the respondents stressed at paragraphs 21-23 of their counter-affidavit as follows:
The learned trial judge, Adeyemi, J. after considering the totality of the affidavit evidence of both parties as well as the legal arguments of learned counsel on both sides came to the conclusion that the application could not succeed. He therefore dismissed it but with no order as to costs. The learned trial judge then went further to observe that since the substantive suit was filed on 29th June, 1988, and the time for filing a statement of claim had long elapsed, even after making allowance for the legal vacation, which intervened, and that non-filing of the statement of claim before that time was a contravention of order 14 rule 4 of the High Court (Civil procedure) Rules of Oyo State of Nigeria. He therefore also struck out the substantive suit under order 14 rule 2(4) of the said High Court Rules. It is against these two acts of dismissing the motion and also striking out the substantive suit that the appellants have now appealed to this court on five grounds as follows:
GROUNDS OF APPEAL
(a) The learned trial judge erred in law when he applied to the facts and circumstances of this case, the case of Hubbard v. Vosper (1972) 2 Q.B. 84 at page 98 after he has satisfied himself that the applicants claim i s not frivolous or vexatious when he said “I am satisfied that there is some serious question to try in this case.
PARTICULARS OF ERROR
(i) The learned trial judge’s reliance on the case of Hubbard v. Vosper is contradictory in terms of having regard to his own finding
(ii) The learned trial judge cannot in law place at the interlocutory stage a burden on the applicants to show that they are bound to succeed in the trial of the substantive case.
(ii) By the finding of the learned trial judge the appellants have satisfied the principles of law enunciated in Kufeji v. Kogbe (1961) I ANLR 113 at 114 and Egbe v. Onogun (1972)1 ANLR (Pt. 1) 95 at 88.
PARTICULARS OF ERROR
(i) From the affidavit evidence before the court, the “res” in this case is none observance of the custom and tradition of Aborerin Family by the defendants and not the chieftaincy.
PARTICULARS OF ERROR
The “res” in this case being the violation of custom and tradition is not quantifiable in money terms, no monetary compensation can therefore be adequate for injury suffered by the appellants.
PARTICULARS OF ERROR
The learned trial judge has a duty in law to consider and make finding on legal issues raised before him.
PARTICULARS OF ERROR
(i) The issue of pleadings was not before the learned trial judge for consideration as no such issue was raised in the affidavit sworn to by the parties.
(ii) Order 14 R.2(4) of the High Court (Civil Procedure) Rules is designed to give a plaintiff opportunity to react to an alleged lapse in the pleading and not to give automatic power to the Court to strike out cases at will.
Briefs of arguments were later filed and exchanged and issues for determination formulated. The appellants formulated six issues for determination as follows:
The respondents on the other hand formulated four issues as follows:
(1) Whether the conditions for grant of an interim injunction had been satisfied such that the defendants should have been restrained.
(2) whether the appellants can properly maintain an action for declaration and injunction without filing a statement of claim at that stage of the proceedings.
(3) whether the learned trial judge was wrong in the use of his discretionary power in striking out the action as he did.
(4) Whether the learned trial judge has the right to raise and decide suo motu a matter of law in his ruling which he did by striking out the appellants’ case.
Before going further, I think I should mention at this stage the fact that the 3rd respondent, even though he did not enter appearance at the lower court, and did not even attend court during the proceedings and that the Ruling was delivered in favour of all respondents, later came to this court and filed a separate brief supporting the case of the appellants. Following a preliminary objection by Chief Ladapo, S.A.N., in his brief for the 1st, 2nd, 5th, 6th respondents that since the 3rd respondent did not cross-appeal nor file a respondent’s Notice under order 3 rule 14(1) of Court of Appeal Rules 1981, he had no locus to file a separate brief different from those of the respondents, in this case. That objection was upheld, and we ruled that the brief of the 3rd respondent was incompetent, and was therefore struck out with no order as to costs.
From the foregoing, it would be seen that the issues formulated by both parties could be divided into two categories. Those concerning the refusal to grant the interlocutory injunction (issues Nos 1-4 in appellants’ brief and issues Nos 1 & 2 in respondents’ brief) and those that concern the alleged wrongful striking out of the substantive suit (issues Nos.5 &6 in appellants’ brief, and issues Nos 3 & 4 in respondents’ brief). I propose therefore to dispose of all the issues raised in this appeal under two main headings as follows:
“(a) Whether having regard to the materials placed before the lower court, the learned trial judge was right in refusing to grant the interlocutory injunction as prayed?”
“(b) whether the learned trial judge was right in striking out the substantive suit under the circumstances he did?”
Under issue (a) above, the main contention of the appellants as put forward by their learned counsel, chief Agbo Olaleye, was that the learned trial judge had wrongly considered the relative strength of the parties case, whereas at that stage, what he should have done was merely to consider whether there is a “substantial issue to try” as laid down in the case of WEBBER EGBE V. ONOGUN (1972) I All NLR 95. The learned trial judge had himself held that he was “satisfied that there is some serious question to try in this case”. It was also submitted that the “res” sought to be protected in the case was the “custom and tradition” of Aborerin and not the “Chieftaincy” as was wrongly held by the learned trial judge.
Regarding the second issue No. (b), the main contention here was that the question of filing or not filing of pleadings was never raised by either of the parties in their affidavit or counter-affidavit. It was therefore wrong for the learned trial judge to strike out the entire claim based on a ground that was never canvassed by either party. The case of DEDUWA V. OKORODUDU (1976) 1 NMLR 236 was cited to support this contention.
In reply to the foregoing it was submitted on behalf of the respondents by the learned senior advocate, Chief Ladapo, SAN that the appellants did not fulfil all the conditions for a grant of Interim Injunction. At least they fulfiled only one out of five. He gave the five grounds to be as follows:
“(1) The appellant must have sufficient interest in the reliefs sought.
(2) There must be a serious question to be tried at the hearing and the appellant is probably entitled to some reliefs.
(3) The balance of convenience should be in favour of the appellant.
(4) The res must be preserved pending determination of the case.
(5) Compensation must not be adequate for any damages caused thereby.
In the submission of Chief Ladapo the appellants appeared to have satisfied condition (2) above, but failed woefully to satisfy conditions (1), (3), (4) & (5). One should also add here that there is a 6th condition which was mentioned by the learned trial judge himself, relying on the case of JOHN HOLT V. HOLTS AFRICAN UNION (1963) 1 All NLR 379 at 384, (1963) 2 SCNLR 383 namely that:”An interlocutory injunction is no remedy for an act which has already been carried out”.
On the second question for determination, it was submitted on behalf of the respondents by their learned senior advocate that there was hardly any doubt that the lower court had the power to strike out the action for failure to file statement of claim. It was submitted further that once the issue was raised in the address of counsel for the 1st defendant/respondent at p.24 lines 30-41 of the Record, lower court was right in ruling in favour of the respondent as it did. It is unnecessary to take the circuitous step of referring the issue to the Registrar to certify such fact to the court before striking out the same (vide U.B.A. LTD V. DIKE NWORA (1978) 11-12 S.C. I at p. 10).
I have carefully considered all the facts of this case as disclosed in the affidavits and counter-affidavits of the parties as well as the legal arguments of learned counsel on both sides made both in their briefs and orally in court, and hold as follows:
Regarding the first questions for determination i.e.,
“Whether having regard to the materials placed before the lower court, the learned trial judge ought to have granted the interlocutory injunction as prayed for my answer is clearly in the negative, because the best part of what the appellants wanted had been overtaken by events. they wanted the 2nd 3rd, 5th, 6th and 7th defendants restrained from selecting, appointing or installing the 1st defendant as the Bale of Aborerin,Eruwa. Yet by the time the matter came up for consideration, the selection and appointment of the 1st respondent had already been done and completed, remaining only the installation, in respect of which a date had already been fixed and the matter communicated to the public. Since injunction, whether interim or perpetual cannot be a remedy for an act that has already been carried out the only remedy opened to the appellants was damages, if they could quantify it. There was also the fact that even if the act sought to be restrained was still in future, i.e. only being threatened and not yet carried out, the appellants would still have had to prove that their right was threatened. In the instant case they did not appear to have had any right that was threatened. There was no allegation that any of them was a potential Bale of Aborerin nor that it was even the turn of their Ruling house to nominate the next Bale of Aborerin. They all agreed that it was the turn of the 1st respondent’s Ruling House to nominate a Bale of Aborerin, and that 1st respondent was from the said ruling house. What then were they quarrelling about? merely that the meeting for approval was not held in the house of the deceased Bale as in the past or that the members of the other two ruling houses were not given a chance to deliberate in the final selection. Can a breach of such an intangible right be said to be capable of causing “irreparable damage”?
It is now settled that the court will not grant an injunction where the plaintiff is unable to show an actionable wrong. The fact that the act of the defendant is injurious to the plaintiff is not sufficient so long as such act does not constitute an infringement of a legally enforceable right (DAY V. BROWNRIGG (1878) I 0 Ch.D. 294; WEBSTER V. WEBSTER (1916) I K.B. 714). Nor will injunction be granted where it has not been clearly established that the defendant has infringed or threatened to infringe the plaintiff’s right. (BRAIDE V. ADOKI (1931) 10 NLR 15). In view of the foregoing I hold that the learned trial judge was perfectly right to have refused the interim or interlocutory injunction prayed for by the appellants.
But can the same be said about the second question, namely whether the learned trial judge was right in striking out the substantive suit? At first sight it might appear that he was not, because at the material time, the substantive suit was not yet before the court for determination. But a careful consideration will show that the action of the learned trial judge was not as capricious as it looked. It is true that the appellants had not yet filed their statement of claim at that stage, but the appellant could not really complain that their case was struck out without their being given a fair hearing, because what was originally an ex-parte motion was ordered to be made “On Notice” by the learned trial judge. By putting the respondents on Notice, it became possible for the learned trial judge to consider the case of both sides objectively. And after doing that two things became clear:-first that none of the appellants was claiming to have been entitled to the Chieftaincy himself, and secondly, what the appellants were seeking to restrain had already been carried out. With these two findings it became clear that there was actually nothing left to be determined in the substantive suit The substantive suit was a three-legged claim cons 1sting of a claim for a declaration and two claims for injunctions. With the claims for injunction having failed, what was the point in making an empty declaration that would have no practical effect. It is trite law that the court does nothing in vain. The court will not engage in a mere academic exercise, by making a declaration that will be of no practical benefit to any of the parties. See the case of AFOLAYAN V. OGUNRINDE (1986) 3 NWLR (Pt. 26) 29, where the Court of Appeal (Kaduna Division) held that “A declaration action cannot be used to determine hypothetical questions. See also EKPENYONG v. NYONG (1975) 2 S.C. 71. Added to this was the fact that the learned trial judge found as a fact that the appellants had not filed their statement of claim after the prescribed period had elapsed. Granting that the learned trial judge wrongly cited ord. 14 rule 4 instead of order 14 rule 1, the fact still remained that under Order 14 rule I (b) of the High Court (Civil Procedure) Rules of Oyo State, 1978, which was applicable at that time, the appellants should have filed their statement of claim within one month of the service of their writ of summons. The appellants have not denied that they were out of time, nor did they bring any application for extension of time. All they contend is that the matter should have been put to the judge by the Reg 1strar for striking out. This may well be so in a case where the matter was not yet before the judge; but where as in this case, the matter has been brought before the judge in the course of some other matter, namely arguing a motion, the judge has every right to take judicial notice of the fact that the appellants had not filed their statement of claim within prescribed time. I must say that at first I was minded to allow this appeal on the second issue, and order the case to be restored to the general cause List for hearing and determination of the 1st claim on Declaration alone. But the question arose, “Declaration for whose benefit” With the revelation that none of the appellants was entitled to the chieftaincy in this case, and it was not yet the turn of their ruling house, it becomes very clear that there was in fact no cause of action disclosed in this case, and that none of the appellants had a locus standi in this case. So even if a statement of claim had been filed, the court would not have made a declaration for the benefit of nobody.
On the totality of the foregoing I hold that the learned trial judge was also right in striking out the substantive suit, not only because no statement of claim was filed within prescribed time, but also because consequent on the disclosures made in the affidavit and counter affidavit of the parties, the appellant had no cause of action nor locus standi. This appeal therefore fails and is hereby dismissed with costs of N400.00 in favour of the respondents.
OGWUEGBU, J.C.A.: I agree with the conclusion reached by my brother Akpabio, J.C.A in the lead judgment just delivered. I abide by the consequential orders made by him.
AGORO, J.C.A.: I agree.