3PLR – AKIBU V. ODUNTAN
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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AKIBU
V.
ODUNTAN
IN THE SUPREME COURT OF NIGERIA
FRIDAY, 8TH FEBRUARY, 1991
S.C.33/1990
3PLR/1991/28 (SC)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS
ANDREWS OTUTU OBASEKI, J.S.C. (Presided and Read the Leading Judgment)
ADOLPHUS GODWIN KARIBI-WHYTE J.S.C.
SAIDU KAWU, J.S.C.
PHILIP NNAEMEKA-AGU, J.S.C.
ABUBAKAR BASHIR WALI, J.S.C.
BETWEEN
- ALHAJI A. W. AKIBU
- ALHAJI SALISU AGORO
- BADMUS AGORO (For themselves and on behalf of Dosunmu family)
- LAGOS ISLAND LOCAL GOVERNMENT COUNCIL
- THE ATTORNEY-GENERAL LAGOS STATE
AND
- ALHAJA MUNIRAT ODUNTAN
- RAFIU YESUFU AGUNBIADE
- MUSHAFU SAKA OLUWA
- GANIYU GIWA
- LASISI ODUNTAN
- OLUYOLE.DABIRI
REPRESENTATION
Chief Debo Akande, S.A.N. (with him, Chief H. I. Agoro and M. O. Sowole) – for the Applicants
- O. Sofunde, S.A.N. (with him, G. N. O. Osakwe) – for the Respondents
MAIN ISSUES
PRACTICE AND PROCEDURE – EQUITY – Demands of justice – Application of to application for stay of execution.
PRACTICE AND PROCEDURE – EVIDENCE -Presumptions – Valid judgment of court – Presumption raised in respect of.
PRACTICE AND PROCEDURE – INJUNCTION- Interlocutory injunction – Basis and aim of grant of.
PRACTICE AND PROCEDURE – INJUNCTION – Interlocutory injunction – When it will be granted – When it will not be granted.
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – Declaratory judgment – Whether can be stayed.
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – Valid judgment of court – Presumption raised in respect of.
PRACTICE AND PROCEDURE – Stay of execution – Declaratory judgment- Whether can be construed.
PRACTICE AND PROCEDURE – Stay of execution – Whether trespasser entitled to.
STAY OF EXECUTION – Declaratory judgment -Whether can be stayed.
STAY OF EXECUTION- Order of stay- Whether trespasser entitled to.
MAIN JUDGEMENT
OBASEKI, J.S.C. (Delivering the Leading Judgment):
The applicants herein by motion on notice pray this Honourable Court for three orders, the first and second of which are for interlocutory injunction and the third for an order to maintain the status quo as per the terms of the order of the High Court of 31st day of October, 1986 pending the determination of the appeal and an order to allow the 3rd appellant/applicant to maintain the status of a capped Chief pending the determination of the said appeal. In terms of their motion, the applicants pray –
- For an order of interlocutory injunction restraining the 1st, 2nd, 3rd, 4th, 5th and 6th respondents and the entire members of their family from giving effect to the judgment of the Court of Appeal dated 12th February, 1990 pending the hearing and determination of the appeal lodged against the said judgment.
- For an order of interlocutory injunction restraining both the appellants and the respondents and all the entire members of the Eletu-Iwashe family from dealing with and/or alienating the properties of the Eletu-Iwashe chieftaincy family pending the appeal lodged against the judgment dated 12th February, 1990;
- For an order to maintain the status quo as per the terms of the order of the High Court in its Ruling dated 31st day of October, 1986 pending the outcome of the appeal. The said order reads as follows:
`For these reasons, it is my considered view that a stay should be granted pending the determination of the appeal filed by the 1st to 3rd defendants/applicants. An order is hereby made accordingly. It is hereby also ordered that the 1st to 3rd defendants/applicants shall not until the final determination of the appeal filed by them do any ad that will cause a breach of the peace by members of the Eletu-Iwashe chieftaincy family and that every member of that family shall, until that time, keep the peace in respect of all matters relating to the chieftaincy title and the properties attached thereto.”
(ii) And to allow the 3rd appellant/applicant to maintain the status of a capped Chief pending the determination of the said appeal’
The proceedings in which this application is made were initiated by notice of appeal filed on 14090 against the decision of the Court of Appeal delivered on the 5th day of February; 1990. That decision was given in a matter which came on appeal before the `blurt of Appeal. That matter was the grant of a stay of execution of the judgment of the High Court of Lagos in suit No.1.D/231 and 545/81 dated 15th July, 1986 in a Ruling delivered on 31st October, 1986. The Court of Appeal in its judgment delivered on 5th February, 1990 set aside the stay of execution granted by the High Court. Being dissatisfied the defendants have appealed against the removal of the order of stay.
The defendants have also appealed to the Court of Appeal against the judgment of the High Court which was stayed and the appeal is pending in the Court of Appeal. There is therefore no appeal pending before this Court in respect of the substantive claims for which the plaintiffs/respondents got judgment. What are these claims? I will set them out as endorsed on the writs of summons. In suit LD/231/81 the plaintiffs claim:
“1. A declaration that the Ogabi, Ktisimi and Kumoku families are the only existing, branches of the Eletu Iwashe chieftaincy family;
- A declaration that the Dosunmu family of which the 1st to 3rd defendants are members, is not a branch of the Eletu-Iwashe chieftaincy family;
- A declaration that consequently Ogabi, Rusimi and Kumoku branches of the ‘Eletu -Iwashe` chieftaincy family are the only branches of Eletu-Iwashe chieftaincy family entitled to nominate candidates for’ the Eletu-Wase chieftaincy family;
- A declaration that the 3rd defendant or any member of the Dosunmu family is not entitled to be nominated and/or installed the Eletu-Wase of Lagos;
- t1 declaration that the declaration made on the 20th day of August, 1979 by & 4th defendant is null and void and of no effect whatsoever;
- A declaration that the approval given on the 7th day of August, 1980, by the Executive Council of the Lagos State Government, of the declaration made by the 4th defendant on the 20th day of August, 1979 is null and void and of no effect whatsoever;
- A declaration that the registration of the said declaration is null and void and of no effect whatsoever;
- A declaration that the Aft defendant’s letter to the Dosumnu family dated the 14th of October, 1980 directing that they nominate one of their members as the Eletu-Wase elect is null and void and of no effect;
- A declaration that the nomination of the 3rd defendant by other members of the Dosunmu family as the Eletu-Wase elect is null and void and of no effect;
- A perpetual injunction restraining the defendants, their servants and/or agents from giving effect in any manner to the declaration dated the 20th of August, 1979.”
And the plaintiffs’ claims in suit No.LD/545/81 are:
“1. A declaration that the purported appointment of the 3rd defendant – Badmds Agoro as the Eletu-Wase of Lagos and the purported approval of the appointment contained in the letter Ref.0016000Nol.21293 dated 25th March, 1981 issued under the hand of the Council Manager of the 4th defendant to the Head of the Eletu-Iwashe chieftaincy family are null and void and of no effect;
- A declaration that the 3rd defendant is not the Eletu-Iwashe of Lagos
3 An injunction restraining the 3rd defendant from holding himself out as the Eletu-Iwashe of Lagos and/or performing any of the traditional functions of the Eletu/Iwashe or enjoying any of the traditional rights and privileges of the Eletu-Iwashe or enjoying any of the traditional rights and privileges of the Eletu-Iwashe or enjoying any of the traditional rights and privileges of the EletuIwashe;
- N5,000 damages for trespass to the Iga (Palace) of the EletuIwashe of Lagos; and
- Perpetual injunction restraining the defendants, their servants, agents and privies from trespassing and/or continuing to trespass on the Iga (Palace) of the Eletu-Iwashe of Lagos.
In suit No.LD.231/81, the learned trial Judge granted and made the declarations and orders sought in claims (1), (2) And (3); and 5 to 10 and refused the declaration sought in claim 4 Before granting the declarations, the learned trial Judge, Oladipo Williams, J. said, observed and found as follows:
“I have approached the dispute between the plaintiffs and the 1st to 3rd defendants with great anxiety and I am of the opinion that there could not have been a Dosunmu branch of the family. I find that the Ogabi, Kusimi and Kumoku branches are the only existing branches of the Eletu-Iwashe chieftaincy family, that the Dosunmu family of which the tat to 3rd defendants are members is not a branch of the Eletu-Iwashe chieftaincy family which should be recognised and that Ogabi, Kusimi and Kumoku branches of the family are the only branches of the Eletu/Iwashe chieftaincy family entitled to nominate candidates for the chieftaincy title.
The present dispute has arisen in my opinion bemuse the Tribunal of Enquiry appointed in 1975 came to the wrong conclusion by declaring that there are five ruling houses instead of three as mentioned above. I find therefore that the declaration made on the 20th day of August, 1979 by the 4th defendant was null, void and of no effect whatsoever and that it should not have been approved as was done on 7th day of August, 198D. Consequently, the 4th defendant’s letter to the Iosumnu family dated 14th October, 1980 directing that family to nominate one of its members as the Chief Eletu-lwashe was null and void and could not be said to be of any effect whatsoever.
Bemuse of all these findings, an order of injunction should be made and it is hereby made restraining the defendants and/or their agents from giving effect in any manner to the declaration dated 20th August, 1979 . . . . . . . . .
….. … For reasons earlier given in this judgment in Suit No.L0=81, the declaration and order sought in (1), (2) and (3); (5) ~o (10) of the claims are hereby made. It will be seen that the claim in (4) that the 3rd defendant and his relations be declared not entitled to the chieftaincy title has been refused. This refusal is made in order to make it possible for the declaration of the Ruling Houses to be revised in order to bring them in conformity with the findings made in thus judgment.
With regard to the claims in suit No.LD/545/81, the learned trial Judge, Oladipo Williams, J. said in his judgment as follows:
“I now come to deal with the claims in suit No.LD/545/$1. From the findings which had been made in suit No.LD/231/811 it would be unnecessary to make the declaration sought for in (1′) and (2) therein. Those facts as found in suit No.LD/231/81 are also the reasons why an order of injunction should be made land it is hereby made restraining the 3rd defendant from holding himself out as the Eletu-Iwashe of Lagos and from performing any of the traditional rights and privileges of the Eletu Iwashe.” I
On the issue of trespass to the Iga, the learned trial Judge said:
“As has now been shown, the 3rd defendant had no right to occupy the Iga of Eletu-Iwashe on 31st March, 1981 and by doing so, he has committed trespass.”
I think that a sum of *V00.00 is sufficient as damages in the circumstances of this case, as against the 3rd defendant only. The plaintiffs having succeeded in their claims for trespass late entitled to an order of perpetual injunction restraining all the defendants, their servants, agents and privies from trespassing and/or continuing to trespass on the Iga of Eletu-Iwashe.”
As said earlier, an appeal against this judgment is pending before the Court of Appeal and not before this Court. That is the judgment !4 respect of which a stay pending the determination of the appeal to the Coil” of Appeal was granted but that order of stay has been discharged by the (Court of Appeal and the Court of Appeal allowing plaintiff’s appeal against that order said, inter alia, in the lead judgment of Akpata, J.C.A. concurred in by Babalakin, J.C.A. and Awogu, J.C.A.’ as follows:
“The appeal is bound to succeed on three grounds namely:
(1) There was no arguable ground of appeal filed by the defendants against the substantive judgment before the learned trial Judge granted a stay;
(2) The defendants disclosed no special circumstances that could warrant a stay of execution of the substantive judgment;
(3) The defendants particularly the 3rd defendant should not be allowed to continue in their trespass.”‘
This judgment was delivered on the 12th day of February, 1990.
Having regard to the terms of the judgment, I can see no basis for the three prayers in this motion. Prayer 1, in my view, is totally misconceived. The judgment has taken effect in that the order of stay was discharged and the question of not giving effect to it does not arise. An interlocutory injunction can only be issued to restrain a threatened wrong to a right and not to restrain the lawful enjoyment of a legal right. The Court of Appeal judgment removed the restraint on the enjoyment of the fruits of the judgment of the High Court and it does not require the 1st, 2nd, 3rd; 4th, 5th and 6th respondents to give effect to that judgment.
The premises for an application for interlocutory injunction is the claim before the court. The claim before this Court does not relate to the properties of the Eletu-Iwashe family.
Apart from the claim for trespass to the Palace of Eletu-Iwashe, none of the claims that were adjudicated upon by the High Court touched on or related to the properties of Eletu-Iwashe and as such, prayer 2 must be re fused. Prayer 3 is in effect asking this Court to reverse the judgment of the Court of Appeal before hearing the appeal. In other words, this Court is in this application being urged to restore the stay of execution set aside by the Court of Appeal. There’ is no basis for such an order.
An interlocutory injunction is usually granted with the object of keeping matters in status quo until the question at issue between the parties is determined. See Ojukwu v. Lagos State Government (1986) 3 NWLR. (Pt.26) 39, C.A.; Obeya Memorial Specialist Hospital v. Attorney-General of the Federation & Anor. (1987) 3 NWLR (Pt.60) 325 S.C.; American Cyanamid Co. v. Ethicon Ltd. (1975) A. C. 396-409. So also is an order of stay of execution and an order of stay of proceedings. See Vaswani v. Savalakh (1972) 12 S.C.77 at 81; Okafor v. Nnaife (1987) 4 NWL.R (Pt.129) 64 at 136-138; Fawehinmi v. Akilu (1989) 3 NWLR (Pt.112) 613 at 617. It is not available in respect of issues not raised in the action or proceedings before the Court unless such issues or matters are directly related to the issues raised. It is therefore not available to restrain parties in respect of matters outside the issues raised in appeal before the appeal court.
As the issue of ownership and alienation of the properties of Eletu Iwashe family is not before this Court in this appeal not indeed before the Court of Appeal and High Court, the prayer for an order of interlocutory in junction restraining both the appellants and the respondents cannot be granted and must be refused.
As already stated above, the prayer to maintain the status quo as per the terms of the order of the High Court in its Ruling dated the 31st day of October, 1986 pending the outcome of the appeal to the Court of Appeal is a direct invitation to this Court to reverse the judgment of the Court of Appeal discharging that order no matter how interim.
The prayer to allow the 3rd appellant applicant to maintain the status of a capped chief pending the determination of the appeal is an invitation not only to reverse the judgment of the Court of Appeal but also to reverse the declaratory judgment of the High Court and the order of injunction. A declaratory judgment cannot be stayed. See Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) page 592, the order of stay of execution granted by the High Court in effect only stayed the order of injunction and the order of payment of damages of N500.00. It did not stay or suspend the declarations granted. The effect of the declaratory judgment remains and must weigh heavily in this application on the mind of the court.
The two arms of the 3rd prayer on the motion have different premises. The first arm of the 3rd prayer has the order of stay of execution of the order; granted by the High Court as its premises while the 2nd arm of the 3rd prayer is based directly on the declaration and order of injunction made by the learned trial Judge in his judgment. In other words, the appellant is asking this Court to exercise its appellate jurisdiction on these matters when the appeal against the declaratory judgment and orders of injunction is not before this Court.
An examination of the notice of appeal Exhibit D1 filed in the Court of Appeal against the judgment of that court in the appeal to it shows that the relief sought from this Court, the Supreme Court reads:
“setting aside the Court of Appeal Ruling and restoring a stay of execution until determination of the appeal.”
Having regard to this relief, I would consider this motion for the same relief as totally misconceived.
Since the appeal against the discharge of the order of stay of execution is before this Court, the original motion for interlocutory injunction to effect a stay of execution is misconceived and it is hereby refused. The proper course is to accelerate the hearing of the appeal properly pending.
The motion is hereby dismissed with *50.00 costs to the respondents.
KARIBI-WHYTE, J.S.C.: I have had a preview of the ruling of my learned brother, Obaseki, J.S.C. in this application. I am in total agreement with his reasoning and the conclusion dismissing the application, but making an order for accelerated hearing of the appeal pending before this Court.
I also hereby dismiss the motion, and order accelerated hearing of the appeal.
Appellants/applicants shall pay #i50 as costs to the respondents.
KAWU, J.S.C.: I have had the advantage of reading, in draft, the lead ruling of my learned brother, Obaseki, J.S.C. which has just been delivered. I am in complete agreement with him and for the reasons fully set out in the Ruling. I too will dismiss the motion with *50.00 costs to the respondents.
NNAEMEKA-AGU, J.S.C.: This application is in one respect novel. It not only seeks to deprive the respondents of the fruits of a judgment delivered in their favour by the Lagos High Court on the 15th day of July, 1986; it also seeks to transfer the benefit of that judgment to the unsuccessful defendants (applicants) as if the High Court judgment was never delivered in favour of the respondents.
I have had the benefit of a preview of the lead ruling of my learned brother, Obaseki, J.S.C. He has fully, ably and lucidly set out the facts. I adopt his statement of the facts. yet, in order to make the short comments I wish to make on the application meaningful, I wish to set out again the prayers in the application. The applicants pray the Court for the following Orders:
“(1) For an Order of Interlocutory Injunction restraining the 1st, 2nd, 3rd, 4th, 5th and 6th respondents and the entire members of their family from giving effect to the judgment of the Court of Appeal dated 12th February, 1990 pending the hearing and determination of the Appeal lodged against the said judgment.
(2) For an Order of Interlocutory Injunction restraining both the appellants and respondents and all the entire members of the Eletu-Iwashe Family from dealing with and/or alienating the properties of the Eletu-Iwashe Chieftaincy family pending the determination of the Appeal lodged against the judgment dated 12th February, 1990.
(3) (i) For an Order to maintain the Status Quo as per the terms of the order of the High Court in its Ruling dated the 31st day of October, 1986 pending the outcome of the Appeal. The said Order reads as follows:
“For these reasons it is my considered view that a Stay should be granted pending the determination of the Appeal filed by 1st to 3rd defendants/applicants. An Order is hereby made accordingly. It is hereby also ordered that the 1st to 3rd defendant/applicants shah not until the final determination of the Appeal filed by them do any act that will cause a breach of the peace by members of the Eletu Iwashe Chieftaincy Family and that every member of that Family shall, until that time, keep the peace in respect of an matters relating to the Chieftaincy title and the properties attaching thereto.”
(ii) And to allow the 3rd appellant/applicant to maintain the status of a Capped Chief pending the determination of the said Appeal.”
Now the High Court had, sometime after delivering judgment, i.e. on 31st October, 1986, and during the pendency of the appeal in the Court of Appeal, made an order for stay of execution until the determination of the appeal. The case appealed from were concluded on the 15th of July, 1986, and the plaintiffs (now respondents) were granted most of the declarations they sought. But the unsuccessful defendants applied for, and were granted, a stay by the learned trial Judge on the 31st of October, 1986. The plaintiffs (now respondents) appealed against the order of stay. By its judgement dated the 12th of February, 1990, the Court of Appeal upheld the appeal and set aside the order of stay on the grounds that:
(i) there was no arguable ground of appeal against the substantive judgment;
(ii) the applicants did not show any special circumstances for the grant of a stay; and
(iii) the 3rd applicant, who was the occupant of the chieftaincy stool was in trespass and ought not to have been allowed to continue therein.
It is an appeal against this judgment removing the order for a stay of execution that is pending in this Court. The appeal against the substantive declarations and order of injunction and damages against the 3rd applicant for trespass over the chieftaincy stool is pending in the Court of Appeal.
As the appeal against the order for stay has not been heard in this Court, I must desist from commenting on the propriety or otherwise of the grounds upon which the Court of Appeal allowed the appeal against the order for stay made by the High Court. See: Egbe v. Onogun (1972) 1 All N.L.R. (Pt. 1) 95; Military Governor of Lagos State v. Ojukwu (1986) 1 N. W.L.R. (Pt. 18) 621. But I must presume that the judgment of the High Court in the substantive suit is correct until it is set aside by the Court of Appeal in which the appeal is still pending. It follows that I have to approach the applicants’ application from the stand-point of that presumption of correctness i.e. that the declarations and injunction made in favour of the respondents and against the applicants on the 15th of July, 1986, were correctly made, until they are set aside on appeal. I should also presume that the court was right to have adjudged the 3rd applicant a trespasser until that finding is set aside. What the applicants are asking for is not a mere stay of execution. Their motion for stay of execution dated 13th February, 1990, was withdrawn and struck out on the 26/11/90, before they moved the Court for injunctions. By their motion they are asking that this Court puts them back to the position in which they were as per the High Court Ruling of the 31st of October, 1986, which has been set aside by the Court of Appeal on 12th of February, 1990. They are also asking for injunctions in terms of their first two prayers. They are also asking that the 3rd applicant, who has been adjudged a trespasser to the chieftaincy stool continues to maintain the status of a capped chief – all to be backed by the order of this Court. This to my mind is, in appropriate metaphor, to rob Peter to pay Paul: to rob the successful party in the litigation for the benefit of the party who lost. This is neither equity nor justice. Equity treats both parties evenly. Justice demands that, apart from the power of court to stay execution in appropriate cases a successful litigant shall enjoy the fruits of a judgment in his favour until and unless the decision is reversed on appeal. This Court ought not lend its powers to practically reverse the judgment of a Court of competent jurisdiction, as it were, through the back door. It can only do so on appeal in proper cases.
Moreover, this Court makes interim orders or grants interlocutory injunctions either to preserve the res or in protection of rights pending appeal. What the applicants are seeking is not an order to preserve the res. No case has been made out for a preservation order. Also, as their rights have been adversely pronounced upon in a final judgment of the High Court, I cannot see what right lo theirs there can be to be protected by an order of interlocutory injunction.
As for the 3rd applicant who wants to dub the garb of a chief over a chieftaincy stool he has been adjudged to be a trespasser, I believe the law is that the court ought not even grant a stay of execution to a person adjudged to be a trespasser. As it is so, a fortiori, a person adjudged and declared to be a trespasser cannot be entitled to an order of injunction for the protection of his right pending appeal, as he has none subsisting. A trespasser has no right which can be protected by a court in exercise of its equitable jurisdiction.
For the above reasons and for the fuller reasons contained in the lead ruling of my learned brother, Obaseki, J.S.C., which I adopt as my own, I dismiss the application and subscribe to the orders made in the lead ruling.
WALI, J.S.C.: I have read before now, the Ruling just delivered by my learned brother, Obaseki, J.S.C. I entirely agree with the reasoning and the conclusions in the said Ruling and which I also hereby adopt as mine.
For these same reasons, the motion totally fails and it is accordingly dismissed with #50.00 costs to the respondents.
I endorse the order of accelerated hearing of the substantive appeal still pending in this Court.
Application dismissed.
