3PLR – AKOGUN V. ASADE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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AKOGUN
V.
ASADE
IN THE COURT OF APPEAL
[LAGOS DIVISION]
12TH NOVEMBER 2001
CA/L/347M/99
3PLR/2001/37 (CA)
OTHER CITATIONS
[2002] 12 WRN 84
BEFORE THEIR LORDSHIPS:
GEORGE ADESOLA OGUNTADE, JCA (Presided)
OLUDADE OLADAPO OBADINA, JCA (Delivered the leading judgment)
IFEYINWA CECILIA NZEAKO, JCA
BETWEEN
- MUFUTAU AKOGUN
- JIMOH AKOGUN
- PHILIP AKOGUN
- TUNDE BURAIMOH ARE
AND
- LAMIDI SEIDU ASADE
- ALH. LIADI ASADE
- ALH. MUSA DADA
- ALH. ISMAILA SODEKE
- RAUFU RASANAJE
REPRESENTATION
- Akinyode for the appellants/applicants.
B.A. Oseni with him Mrs. Okunola for the respondents.
MAIN ISSUES
PRACTICE AND PROCEDURE – APPEAL – Injunction pending appeal – essence of.
PRACTICE AND PROCEDURE – APPEAL – Injunction pending appeal – whether will be granted merely because there are substantive grounds of appeal.
PRACTICE AND PROCEDURE – APPEAL – Order 3 rule 3(3) of Court of Appeal Rules 1981 – purport of – effect of not requesting for extension of time where an application is brought after 15 days stipulated thereunder.
PRACTICE AND PROCEDURE – INJUNCTION – Injunction pending appeal – whether will be granted merely because there are substantive grounds of appeal.
PRACTICE AND PROCEDURE – INJUNCTION – Injunction pending appeal – essence of.
PRACTICE AND PROCEDURE – Abuse of court process – whether a party who has withdrawn an offending multiple application is still liable for abuse of court process.
PRACTICE AND PROCEDURE – Abuse of court process – what constitutes same – duty on court to prevent same.
MAIN JUDGMENT
OLUDADE OLADAPO OBADINA, J.C.A. (Delivering the leading judgment):
The respondents as plaintiffs in the High Court of Lagos State holden at Ikeja brought an action in 1986 against the applicants for the following declaration:
“(1) That the land, subject matter of this action is part of the Idomila family land.
(2) That none of the defendants or any other descendants of Idowu Balogun, Oduntan or Sodeke have personal rights to sell, grant or alienate any part thereof without the knowledge and consent of the plaintiffs and other principal members of the family.
(3) An order of injunction restraining the defendants or any other persons through any of them from claiming personal or individual right over the said land.”
The four appellants/applicants herein are four of the six defendants sued by the respondents herein. The 1st defendant, Yisa Akogun died during the pendency of the action in the High Court whilst Atanda Rantu Are, the 6th defendant did not appeal against the judgment of the High Court. The 1st to 3rd appellants/applicants filed a joint statement of defence and counter claim, claiming a declaration that all that the land in dispute belongs to Akogun Family of Iba Town, Lagos State.
The 5th and 6th defendants also filed a joint defence and counter-claim, seeking a declaration that the 5th and 6th defendants are indigenes of Iba Town and are the rightful and traditional owners of the land claimed by them. They also claimed for an order of perpetual injunction against the respondents.
The learned trial Judge gave judgment for the plaintiff/respondents and dismissed the counter claim of the 1st – 4th defendants as well as the counter-claim of the 5th and 6th defendants. Being dissatisfied with the judgment of the trial court the 2nd – 4th defendants and the 5th defendants, now constituting the 1st – 4th appellants/applicants appealed against the judgment to this court.
By an application dated 23rd day of August, 1999, the appellants/applicants prayed for the following orders:-
“(i) An order of interlocutory injunction restraining the respondents, their agents or privies from selling, leasing or dealing in any other way with the land in dispute until the final determination of the appeal now pending before this honourable court.
(ii) An order staying the injunctive order contained in the judgment of the lower court dated 21st day of June, 1996 until final determination of the appeal in this case.”
The application was supported by affidavit with two (2) exhibits. The respondents filed two counter-affidavits, filed on the 5th of October, 1999 and 18/7/2001 respectively against the application.
As gathered from the affidavit and exhibits in support of the application, the case of the appellants/applicants is briefly as follows:
Judgment was given against the appellants/applicant in suit No. LD/150/86 on the 21st day of June, 1996, whereby the land subject matter of the case was declared to belong to the respondents, the Idomila Family. The judgment also stated that no individual member of the family has any personal right to sell or alienate the family land without the concurrence of the principal members of the family. The appellants/applicants were also restrained from claiming personal or individual right over the said land.
The appellants/applicants were dissatisfied with the judgment and appealed to this court. They brought an application before the lower court for stay of execution of the judgment pending the result of the appeal, the application was dismissed by the lower court. The appellants/applicants then filed this application before this court.
In paragraph 9 of the affidavit in support, the applicants stated that while the members of the Ale Family i.e. the applicants keep strongly to the order of the lower court as contained in the judgment, exhibit AP. 1, the respondents have jumped on the whole land in dispute, demarcated same and have started selling same without the knowledge and consent of the head of Idomila family in person of Oba Goriola Oseni, the Oniba of Iba.
In paragraph 12 of the affidavit in support the applicants stated that the respondents have been using the said judgment and order of the court as if same gave them personal rights to deal with the whole land in dispute without carrying the head of Idomila family and the 4th applicant adjudged to be a member of Idomila family along in dealing with the land in dispute.
As indicated earlier, the respondents filed two counter affidavits. In the first counter affidavit dated 5th of October, 1999, the respondents effectively denied paragraph by paragraph the averments in the affidavit in support of the application. In the second counter affidavit the respondents denied that there was a “joint report on the visit to part of the land in dispute by the parties and their counsel pursuant to order of court dated 22/1/91” to form part of the record of proceedings.
In his written address dated 8/3/2001 and filed on 12/3/2001, the learned counsel for the applicants referred to the application and the two reliefs contained therein. He also referred to the affidavit in support sworn to by Miss Gloria Wilson and a reply to counter affidavit dated 12/11/99 sworn to by Mr. Johnson Alape, a member of Are Family, and stated that the appellants/applicants are representing Ale family. He referred to the judgment appealed against, exhibit AP 1, and argued that the learned trial Judge declared:
“(1) The land in dispute to belong to Idomila family;
(2) That none of the defendants have personal right to sell or alienate any part of the land without the knowledge and consent of the plaintiff.
(3) That the defendants have no individual rights over the land in dispute and
(4) That the counter claims of the 1st to 4th defendants representing Ale and Are families respectively were dismissed.”
He referred to the amended notice of appeal dated 3/11/2001 and page 26 of the judgment – exhibit AP 1 and submitted that the 4th applicant who was the 5th defendant has a right to farm on the land in dispute. He referred to exhibit AP 4 attached to the reply to the counter affidavit and argued that as at January, 1991, both parties and their counsel inspected the land in dispute and found as of fact that the applicants have been farming on the land in dispute for quite a long time while the respondents had only 2 Bungalows on the land adjacent to the land in dispute. He referred to paragraph 9 of the affidavit in support to the effect that the respondents have been selling the land in dispute to third parties without the consent of Idomila Family head in person of Oba Goriola Oseni, the Oniba of Iba. He urged the court to grant the application.
In his own written address the learned counsel for the respondents Mr. B. A. Oseni briefly summarized the facts of the case. He referred to the first leg of the prayer in the application namely, an order staying the injunctive order contained in the judgment of the High Court dated 21/6/96 pending final determination of the appeal. He referred to the notice of preliminary objection dated 23/3/2000 and filed on the 24th of March, 2000 by the respondents against the application.
The grounds of the objection reads as follows:
“(1) That the appellants/applicants had earlier brought an application for stay of the judgment in the High Court, Ikeja which was dismissed on 27th February, 1998 and the present application brought on 6th September, 1999 for stay of injunctive order contained in the said judgment is incompetent having regard to the provision of order 3 rule 3(3) of the Court of Appeal Rules 1981.
(2) That the appellants/applicant’s application is incompetent and an abuse of the process of court as the appellants/applicants application for interlocutory injunction brought on 9th February, 1999 for similar purpose is still pending at the High Court, Ikeja which has not been refused or any ruling given thereon at the time the appellants/applicants brought again this application before this honourable court on 6th September, 1999 and the application therefore contravenes the provision of order 3 rule 3(3) of the Court of Appeal Rules, 1981.”
In arguing the objection, the learned counsel for the respondents referred to the second leg of the prayers being sought by the applicants, namely-
“An order staying the injunctive order contained in the judgment of the lower court dated 21st day of June, 1996 until final determination of the appeal.”
He referred to paragraph 7 of the affidavit in support of the application and argued that the applicants had earlier brought an application for similar purpose at the High Court and the application was dismissed on 27th of February, 1998. The applicants waited till 6th September, 1999 i.e. for 18 months and filed the present application asking again for a stay of the injunctive order contained in the judgment. He referred to order 3 rule 3 (3) of the Court of Appeal Rules, 1981, and submitted that prayer No. 2 of the application is incompetent, and should be struck out.
As regards prayer one (1) of the application, wherein the applicants are seeking for an order of interlocutory injunction, the learned counsel argued that the prayer is an abuse of the process of court because at the time the applicants filed the application before this court on 6/9/99, they have a prior similar application filed on 9/2/99 still pending before the High Court. He submitted that the prayer for an order for interlocutory injunction in this application is an abuse of the process of court and the prayer should be struck out. The learned counsel for the respondents however made alternative submissions should the court disagree that the application is an abuse of the process of court. He again referred to the application and the affidavit in support thereof. He also referred to the counter-affidavit filed on 5/10/99. He argued that no court would indulge in depriving a successful litigant of the fruits of his judgment merely because an appeal was pending, except in special or exceptional circumstances. He invited the court to look at the quality of the affidavit sworn in support of the application. He said the deponent, Miss Gloria Wilson, was a litigation officer in the chambers of the applicant’s counsel and had no knowledge of facts deposed to and did not disclose the source of her knowledge or information in respect of the facts deposed to by her. He referred to sections 86 and 89 of the Evidence Act and submitted that the deponent not being a member of the applicant’s family had no knowledge of the facts deposed to. He referred to the reply dated 12/11/99 filed by the applicants to the counter-affidavit. He also referred to the purported “joint report” on visit to part of the land in dispute by parties and their counsel pursuant to order of court dated 22/11/91 and argued that there was no joint report filed by the parties as the applicants counsel refused to sign the joint report. He urged the court to attach little or no credence to the reply filed by the applicants to the counter affidavit filed by the respondents.
The learned counsel again referred to paragraphs 9,12 and 14 of the affidavit in support of the application and submitted that apart from the fact that no sale or lease was established, the head of the respondents family had never complained or deposed to an affidavit about the alleged sale or lease and no principal member of the respondents family had complained or deposed to an affidavit in respect of the matter. He urged the court to dismiss the application.
The application is for two reliefs, namely-
(1) An order of interlocutory injunction restraining the respondents from selling or leasing or dealing in any other manner with the land in dispute and
(2) An order staying the injunctive order contained in the judgment of the lower court until the final determination of the appeal.
As indicated earlier, the respondents filed and argued a notice of preliminary objection. I will therefore first consider the objection. The first leg of the objection reads as follows:-
“(1) The appellants/applicants had earlier brought an application for stay of the judgment in the High Court, Ikeja which was dismissed on 27th February, 1998 and the present application brought on 6th September, 1999 for a stay of injunctive order contained in the said judgment is incompetent having regard to the provision of order 3 rule 3(3) of the Court of Appeal Rules, 1981.”
What the respondents seem to be saying is that the applicants applied to the court below after the judgment for a stay of the judgment pending appeal. The application was dismissed on the 27th of February, 1998. The applicants then brought the present application before this court on the 6th of September, 1999, about 18 months after a similar application has been dismissed by the lower court.
Where an application had been refused by the court below, order 3 rule 3(3) of the Court of Appeal Rules, 1981 empowers the applicant to file an application for similar purpose before the Court of Appeal within fifteen (15) days after the date of refusal. Order 3 rule 3(3) of the rules reads as follows:
“3(3) (3) – where an application has been refused by the court below, an application for a similar purpose may be made to the court within fifteen days after the date of the refusal.”
In paragraph 7 of the affidavit in support of the application, the applicants showed that they had earlier brought an application for stay of execution of the judgment pending appeal and that the application was dismissed. The applicants did not give any reason for bringing the present application far after fifteen (15) days after the date of dismissal of the application at the court below. The applicants did not ask for extension of time within which to bring the application.
Since the applicants did not ask for extension of time to bring the application and did not give any reasons why they did not bring the application within the time prescribed by the rule, I think I must agree with the learned counsel for the respondents that prayer No. 2 of the application is very much incompetent and must be struck out. Prayer No. 2 of the application is accordingly struck out.
The second leg of the objection raised by the respondents also reads:-
“That the appellants/applicants application is incompetent and an abuse of the process of court as the appellants/applicants have a prior application for interlocutory injunction brought on 9th February, 1999 for a similar purpose still pending at the High Court, Ikeja which has not been refused or any ruling given thereon at the time the appellants/applicants brought again this application before this honourable court on 6th September, 1999 and the application therefore contravenes the provision of order 3 rule 3(3) of the Court of Appeal Rules 1981.”
In paragraph 9 of the counter-affidavit filed by the respondents on the 5/10/99, and exhibit LBA1 attached thereto, the respondents show that the applicants have earlier brought a similar application for an order to restrain the respondents which is still pending at the High Court, Ikeja – See exhibit LBA1 attached to the counter affidavit filed on 5/10/99, wherein the applicants were asking for precisely the same prayer. The learned counsel for the respondents submitted that the present application of the applicants was an abuse of the process of court.
There is no doubt that all courts take a firm stand against the abuse of the processes of court. But before a party is admonished, it must be established that the erring party had abused the process of court by improper use of the processes of court. Action which amounts to an abuse of the process of court may vary but it ought to fall generally within the kind identified in the case of Okafor v. A-G. Anambra State (1991) 5 LRCN, 1497; (1991) 6 NWLR (Pt. 200) 659 at 689, where Karibi – Whyte JSC, stated the law as follows:-
“I venture to state quite concisely and clearly that an abuse of the process of the court is only possible by improper use of the issue of the judicial process or process already issued to the irritation and annoyance of the opponent…………… It is the law that multiplicity of actions on the same matter may constitute an abuse of the process of the court. But this is so only where the action is between the same parties with respect to the same subject matter. The court has a duty in such a situation to interfere to stop an abuse of its process.
– See Okorodudu v. Okoromadu (1977) 3 S.C. 21; C.B.N. v. Saidu H. Ahmed AND Ors (2001) 28 WRN 38; (2001) 87 LRCN 2035 at 2059.
Bearing in mind that a court has a duty to intervene to stop an abuse of its process, it is pertinent to refer to the observation of Nnaemeka – Agu, JSC. in Arubo v. Aiyeleru (1993) 12 LRCN 600; (1993) 3 NWLR (Pt. 280) 126 at 142, where his Lordship said:-
“Now inherent jurisdiction or power is a necessary adjunct of powers conferred by the rules and is invoked by a court of law to ensure that the machinery of justice is duly applied and properly lubricated and not abused. One most important head of such inherent powers is abuse of process, which simply means that the process of the court must be used bonafide and properly and must not be abused. Once a court is satisfied that any proceeding before it is an abuse of process, it has the power, indeed the duty, to dismiss it. – See Wills v. Earl of Beanchamp (1886) 11.P. at page 63. It has been held in numerous cases that it is an abuse of process of the court for a suitor to litigate again over an identical question which has already been decided against him even if the matter is not strictly res judicata. – See Stephenson v. Garney (1898) 1 Q.B. 67; Spring Grove Services Limited v. Deane (1972) 116. S. J. 844.”
In the instant case, at the time the applicants filed this application on 6/9/99 for interlocutory injunction restraining the respondents, their agents or privies from selling, leasing or dealing in any other way with the land in dispute until final determination of the appeal, the applicants had a prior similar application filed on 9/2/99 by the applicants pending at the High Court. – See exhibit “LBA1” attached to the counter-affidavit of the respondents. The application filed by the applicants on 9/2/99 before the High Court was asking for precisely the same prayer as the present application. There is no doubt in the circumstances, that as at 6/9/99 when this application was filed by the applicants, the case fell generally within the kind identified as an abuse of process of the court in Okafor v. A-G. Anambra State (1991) 6 NWLR (Pt. 200) at 659; and it was an abuse of the process of court. See Arubo v. Aiyeleru (supra) at page 142.
However, the learned counsel for the respondents while urging this court to strike out the application, went further to say that the applicants later withdrew the application for interlocutory injunction at the High Court on 21st March, 2000. With the withdrawal of the applications before the High Court by the applicants on the 21st of March, 2000. I do not think it can properly be said that there was an abuse of the process of the court when the application was heard on the 25th of September, 2001 to enable this court invoke its inherent power and strike out the application. The applicants have certainly stopped the abuse. In the circumstance I am unable to accede to the request of the learned counsel to the respondent to strike out the application.
The applicants are seeking for an order of interlocutory injunction against the respondents restraining the respondents from selling leasing or dealing in any other way with the land in dispute.
From paragraphs 9 and 12 of the affidavit in support of the application the main complaint of the applicants is that the respondents are selling the land in dispute without the knowledge and consent of the head of Idomila Family Oba Goriola Oseni and the 4th applicant. It does not appear from the totality of the affidavit in support that the applicants are against the sale of the land by the respondents if the applicants carry along or obtain the consent of the head of Idomila Family Oba Goriola Oseni, the Oniba of Iba. Paragraphs 9 and 12 of the affidavit in support read as follows:
“(9) That while members of Ale family keep strongly to the order of the court as contained in exhibit “AP 1″, the respondents have jumped on the whole land in dispute demarcated same and have started selling same without the knowledge and consent of the head of Idomila Family in person of Oba Goriola Oseni the Oniba of Iba.
(12) That the respondents have been using the said judgment and order of the court as if same gave them personal rights to deal with the whole land in dispute without carrying the head of Idomila family, and the 4th applicant adjudged to be member of Idomila along in dealing with the land in dispute.”
The argument of the learned counsel for the applicants is also along the line indicated in paragraphs 9 and 12 of the affidavit in support of the application.
It would seem that the grounds of appeal as contained in the amended grounds of appeal appear ex facie to raise important issues of law. However merely having substantial grounds of appeal is not enough to sustain an application for injunction to restrain a judgment creditor from dealing with the subject matter of the judgment as in this case the court would have a look at the depositions in the affidavit to determine or discern the conduct of the applicant. The court would naturally examine whether there exist special or exceptional circumstances which would enable the court make the order sought before exercising the discretionary remedy. The essence of such an order is to maintain the status quo ante in order to ensure that the res, which is the subject matter of the appeal is not destroyed to render the appeal nugatory. It must equally be admitted that the discretion of the court to grant interlocutory injunction will be based on the balance of convenience depending on the facts before the court. See Momah v. V.A.B. Petroleum Inc. (2000) 2-3 SCNJ 200 at 209; New Nigerian Bank Plc v. Mrs. R. N. Udobi (2001) 14 NWLR (Pt. 732) 1 at 9; Obeya Memorial Hospital v. A G. Federation (2000) 24 WRN 138; (1987) 3 NWLR (Pt. 60) 325.
Upon consideration of the authorities and the averments contained in the affidavit and counter affidavits with the exhibits attached thereto I am of the view that the balance of convenience is much in favour of the applicants and that the application for injunction should be granted. In that regard, the application shall be and is hereby granted as follows namely: An order of interlocutory injunction shall be and is hereby granted against the respondents, their agents or privies from selling or leasing the land in dispute to any person until the final determination of the appeal now pending before this court.
GEORGE ADESOLA OGUNTADE, JCA:I read before now an advance copy of the lead ruling just delivered by my learned brother Obadina JCA I agree with his reasoning and conclusion. I would also grant an injunction in the terms set out in the lead ruling.
IFEYINWA CECILIA NZEAKO, J.C.A :I have had the priviledge of reading before now the leading ruling of my learned brother, Obadina J.C.A. I agree with him that the injunction sought should be granted.
It seems to me that when the issue of abuse of process raised involves proliferation of processes or applications before different courts and the applicant proceeds to withdraw one of the two processes complained of, the abuse will be deemed remedied. So it is in this case. There is evidence before us that the applicant withdrew the earlier application pending at the High Court, Lagos when the applicant filed the present one. He had remedied the abuse complained of in the notice of preliminary objection. That has therefore saved the application from being struck out and this court can then determine the merit of the application.
I wish to say a few words about the need to save the ‘res’ which is land in a matter such as this. It has been observed that paragraph 8 of the respondent’s counter-affidavit has not effectively countered the jist of the applicant’s paragraph 9. That paragraph charge the respondents with “jumping into the land and selling same”
In paragraph 8 of the counter-affidavit, the respondents only counter the part that accused them of selling without the knowledge and consent of Idomila family. They did not deny selling. They only deposed thus:
“That further more paragraph 9 of the appellants’ supporting affidavit is not correct when it stated that respondents have jumped on the land by selling same without the knowledge and consent of Idomila family as Oba Goriola Oseni mentioned therein is not interested in protecting the ownership of the land for the family as he has always wanted to pass the land to Akogun family, the appellants’ who are his in-law and he clearly revealed this in his evidence at the trial in support of the appellants’ case.”
They have not therefore denied selling the land in dispute which is the subject matter of the appeal.
The courts have often recognized their duty to preserve the “res” being the subject matter of the suit or appeal. They make necessary order in appropriate cases to ensure that the ‘res’ is not destroyed or so distorted that should the appeal succeed the successful party will not reap an empty judgment. No court would want an appeal before it rendered nugatory. See Kigo Nig. Ltd v. Holman Brother Nig. Ltd. (2001) 47 WRN 1; (1980) 5-7 S.C 60.
The land is being sold by the respondents. It is a clear case of attempting to distort the ‘res’ or to render the appeal before this court nugatory. They ought to be stopped.
I entirely agree with my learned brother, Obadina JCA that the application for injunction should be granted. It is hereby granted in the terms set out in the lead ruling.
Cases referred to in the judgment
Arubo v. Aiyeleru (1993) 3 NWLR (Pt. 280) 126; (1993) 12 LRCN 600.
C.B.N. v. Ahmed(2001) 28 WRN 38; (2001) 87 LRCN 2035.
Kigo Nig. Ltd v. Holman Brother Nig. Ltd. (2001) 47 WRN 1; (1980) 5-7 S.C 60.
Momah v. V.A.B. Petroleum Inc. (2000) 2-3 SCNJ. 200.
New Nigerian Bank Plc v. Udobi (2001) 14 NWLR (Pt. 732) 1.
Obeya Memorial Hospital v. A. G. Fed.(2000) 24 WRN 138; (1987) 3 NWLR (Pt. 60) 325.
Okafor v. A-G. Anambra State (1991) 5 LRCN 1497; (1991) 6 NWLR (Pt. 200) 659.
Okorodudu v. Okoromadu (1977) 3 S.C. 21.
Spring Grove Services Ltd. v. Deane (1972) 116. S. J. 844.
Stephenson v. Garney (1898) 1 Q.B 67.
Wills v. Earl of Beanchamp (1886) 11 p. 63
Rules of court referred to in the judgment
Court of Appeal Rules 1981 or. 3 r. 3(3)
Evidence Act Cap. 112 Laws of the Federation of Nigeria, 1990 Ss. 86 AND 89.
