3PLR – INTERCITY BANK PLC V. ALHAJI BELLO SANI ALI
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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INTERCITY BANK PLC
V.
ALHAJI BELLO SANI ALI
IN THE COURT OF APPEAL
[KADUNA DIVISION]
3PLR/2001/170 (CA)
OTHER CITATIONS
II WRN 127
BEFORE THEIR LORDSHIPS
RABIU DANLAMI MUHAMMAD, JCA (Presided)
MAHMUD MOHAMMED, JCA (Delivered the leading Judgment)
VICTOR AIMEPOMO OYELEYE OMAGE, JCA
REPRESENTATION
- B. Adoke with Zainab Waziri for the appellant.
- T. Turaki for the respondent.
MAIN ISSUES
PRACTICE AND PROCEDURE – APPEAL – Appeal challenging a decision of a High Court which is yet to be delivered – whether competent.
PRACTICE AND PROCEDURE – JURISDICTION – Issue of jurisdiction raised by a party – trial court entertaining interlocutory applications without first resolving same – propriety of.
PRACTICE AND PROCEDURE – Issue of jurisdiction raised by a party – trial court entertaining interlocutory applications without first resolving same – propriety of.
MAIN JUDGMENT
MAHMUD MOHAMMED, JCA (Delivering the leading judgment):
This is an interlocutory appeal against the ruling of the Kano State High Court of Justice delivered by Adamu J. on 19/7/2000 granting the respondent’s application for interlocutory injunction against the appellant and two others restraining them from auctioning his property covered by certificate of occupancy No. LKN/CON/RES/86/375 pending the final hearing and determination of the substantive suit pending before that court.
The respondent who was the plaintiff before the trial court was on 28/4/98 convicted and sentenced to 2 years imprisonment by the Failed Banks Tribunal Zone IV in Lagos. In addition to the sentence, the tribunal also ordered the respondent to forfeit his landed property covered by the certificate of occupancy No. LKN/CON/RES/86/375 for the benefit of the appellant to offset part of the sum [of] twenty two million, seven hundred and sixty two thousand, eight hundred naira (N22,762,800.00) which the appellant was found to have obtained from appellant by issuing bad cheques. Although at the trial tribunal the respondent put the value of the forfeited property at N52 million, the trial tribunal accepted the value of the property at N7.5 million as contained in the certificate of occupancy. The respondent’s appeal to the Special Appeals Tribunal against his conviction and sentence including the forfeiture order was dismissed by the Special Appeals Tribunal.
As the respondent was disputing the value of his forfeited property put at N7.5 million by the Failed Banks Trial Tribunal in its judgment, the plaintiff/respondent as plaintiff filed an action No. K/234/99 before the High Court of Justice of Kano State at Kano and claimed the following reliefs:-
- A declaration that the value of the plaintiff’s property covered by certificate of occupancy No. LKN/CON/RES/86/375 is at least N42 million as assessed by a chartered surveyor and valuer and as accepted by the defendant’s solicitors at the Failed Banks Tribunal, Zone IV, Lagos.
- A declaration that the plaintiff’s property, covered by certificate of occupancy No. LKN/CON/RES/86/375 having been valued for at least N42 million by a chartered surveyor and valuer a long time ago can not now be sold for anything less whether by the defendant or any other person acting or purporting to act on their behalf or on behalf of any person acting on their behalf.
- A declaration that the deed of legal mortgage created over his property in question by the plaintiff in favour of the defendant does not in effect confer on the defendant, their agents and/or assigns the right to sell or dispose his property for any amount lower than N42 million being its assessed true value.
- An order of the court directing the defendant, in case they are interested in keeping the plaintiff’s property for their undischarged obligation, to pay the difference in value to the plaintiff as per the assessment of the chartered estate surveyor and valuer on same.
- An order of the court restraining the defendant, in case they are not interested in keeping the plaintiff’s property from doing anything whether directly or indirectly that would hamper (sic) [tamper] with the value of the plaintiff’s property or that would seek to diminish its value or marketability however and by whatsoever.”
When the respondent’s action came before the trial court on 22/4/99, pleadings were ordered when each side was given 14 days. In compliance with that order, the respondent as plaintiff duly filed and served his statement of claim dated 3/4/99. The appellant as defendant to the action, without filing its statement of defence, filed a motion on notice dated 24/5/99 and asked for the following reliefs in the alternative:-
- An order dismissing or striking out this suit on the ground that the plaintiff lacks the locus standi to institute same.
- Or alternatively an order dismissing or striking out this suit for non disclosure of a cause of action against the defendant.”
On being served with this motion, the respondent duly filed his counter affidavit and subsequently the motion was heard by the trial court which in its ruling delivered on 19/7/99 declared that the appellant’s application to dismiss or strike out the respondent’s suit was premature and the appellant was ordered to file its statement of defence bringing out the relevant facts rather than challenging the respondents statement of claim in the affidavit and oral address of counsel. The relevant part of that ruling reads:-
In the circumstances the defendants are ordered again to file their statement of defence so that they depose to their relevant facts, deny and challenge the averments of the plaintiff.
It is after this position that the court can effectively rule whether it will continue or not with the trial. Application Premature.”
There is no appeal against this ruling of the trial court of 19/7/99 on the competence of the respondent’s action. However, the appellant in apparent anticipation of losing the application, prepared another application dated 16/7/99 and filed on the same day the ruling on the preliminary objection on the competence of the respondent’s action was delivered on 19/7/99, seeking the setting aside of the order of the trial court delivered on the same day. This motion by the appellant was subsequently heard by the trial court but while the ruling was being awaited, the appellant advertised the sale by auction on 15/6/2000 of the property the subject of the respondent’s action pending at the trial court. Consequently the respondent filed a motion ex-parte and joined the Nigeria Deposit Insurance Corporation and the auctioneer to the suit pending at the trial court as defendants and subsequently after having obtained the relief on the joinder, filed another motion for interlocutory injunction restraining the defendants from selling the property in dispute before the hearing and determination of the substantive suit. In its ruling dated 6/6/2000 but delivered on 19/7/2000, the trial court granted the respondent’s relief of interlocutory injunction in the following terms:-
The court therefore decides to grant the order of interlocutory injunction as prayed by the applicants.
The court also allows the parties to address it on the issues raised and the court grants an order of accelerated hearing of this case”
This ruling of the trial court of 19/7/2000 was granted not only against the appellant but also against the Nigeria Deposit Insurance Corporation (N.D.I.C.) and the auctioneer Alhaji Sabi’u Shehu who were joined as defendants in the substantive suit on 31/5/2000 by an ex-parte application by the respondent. The appellant, as one of the 3 parties affected by the order of the interlocutory injunction aggrieved by it, has now appealed to this court. The other two parties affected by the order have not appealed against it.
The appellant’s undated notice of appeal, which also does not show the date of filing, contains the following 3 grounds of appeal:-
- The learned trial Judge erred in law when he granted an interlocutory order of injunction when he infact lacks the jurisdiction to do so and therefore occasioned a miscarriage of justice to the appellant.
PARTICULARS OF ERRORS
(i) The subject matter of the dispute in suit No. K/234/99 property covered by certificate of occupancy No. LKN/CON/RES/86/375 – was confiscated from the respondent by the Failed Bank Tribunal Zone IV, Lagos on or about 28th April, 1998 in case No. FBFMT/L/ZIV/5C/96
(ii) The same property was forfeited and ownership of same vested in Nigeria Deposit Insurance Corporation for the benefit of the appellant in case No. FBFMT/L/ZIV/5C/96 pursuant to section 20(c) of the Failed Bank (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994 as amended
(iii) The respondent extended an appeal against the judgment of the Failed Bank Tribunal Zone IV to the Special Appeals Tribunal which dismissed the appeal and affirmed both the conviction and forfeiture order made by the lower Failed Banks Tribunal
(iv) The order of confiscation and forfeiture made by the Failed Banks Tribunal which were affirmed by the Special Appeals Tribunal effectively extinguished the respondents right and interest over the property thereby depriving him of the locus standi to institute suit No. K/234/99 before the Kano State High Court.
(v) The Kano State High Court has no power to sit as an appellate court over the decisions of the Failed Banks Tribunal and the Special Appeals Tribunal.
(vi) The Kano State High Court is a court of concurrent jurisdiction with the Failed Banks Tribunal and has no jurisdiction to try the suit and to grant the interlocutory order of injunction dated July, 2000.
- The learned trial Judge erred in law when he granted an interlocutory order of injunction to the respondent even when he failed to establish a legal right to the property in question thereby occasioning a miscarriage of justice.
PARTICULARS OF ERRORS
(i) It is trite law that an order of injunction is granted to protect a legal right about to be breached.
(ii) An applicant has to establish from the onset the existence of legal right in the subject matter of dispute.
(iii) The subject matter of dispute in this instance is a property which has been forfeited from the respondent and ownership vested in appellant by the Failed Banks Tribunal in case No. FBFMT/L/ZIV/5C/96 since 28th April, 1998.
(iv) By the judgment of the Failed Banks Tribunal Zone IV the legal right of the respondent in the property became extinguished as of that date 28th April, 1998 and the lower trial court should have, in consequence, refused to make the order of injunction sought by him.
(v) The appeal extended against the judgment was dismissed and the orders of forfeiture and confiscation were affirmed by the Special Appeal Tribunal in appeal No. SAT/FBT/460/98.
(vi) Despite failing to establish a legal right or any legally recognisable interest over the property the lower trial court held that the respondent was entitled to an order of injunction.
(vii) The order of forfeiture and confiscation made by the Failed Bank Tribunal is not being challenged by the respondent in suit No. K/234/99.
- The ruling of the lower trial court is against the weight of evidence adduced.”
Briefs of argument were duly filed and exchanged between the parties in accordance with the provisions of order 6 of the rules of this court before the appeal came up for hearing on 10/4/2001. From the 3 grounds of appeal earlier quoted in full in this judgment, the following 2 issues for determination were framed in the appellant’s brief of argument.
(i) Whether the learned trial Judge had jurisdiction to hear the whole suit as constituted and to grant the order of interlocutory injunction as he did on the 19th July, 2000?
(ii) Whether the learned trial Judge was right to have granted an order of interlocutory injunction in favour of the respondent even when he failed to established a legal right to the property in dispute or any of the conditions for the grant of an injunction.”
In the respondent’s brief of argument however, only one issue was identified from the 3 grounds of appeal filed by the appellant, for the determination of the appeal. The single issue reads:-
- Whether the learned trial Judge had jurisdiction to entertain the respondent’s suit as filed before him, and to grant the order of interlocutory injunction in the way and manner he did in this case.”
I have earlier in this judgment quoted in full the 3 grounds of appeal filed by the appellant challenging the decision or the ruling of the lower court of 19/7/2000 granting interlocutory injunction to the respondent and the two issues in the appellant’s brief of argument and the lone issue in the respondent’s brief of argument in order to bring out clearly the nature of this appeal. It is quite clear that all the grounds of appeal and the issues identified by the parties arising from the grounds of appeal for the determination of the appeal including the arguments advanced in support of these issues, are virtually challenging or upholding the jurisdiction of the trial court to entertain the substantive suit No. K/234/99 filed by the respondent against the appellant and two others which is now pending at the lower court. It is this argument of lack of jurisdiction or its presence that was advanced by the parties to this appeal in support of their respective cases of whether or not the order of interlocutory injunction of 19/7/2000 was rightly granted by the lower court. It is however very unfortunate that learned counsel on both sides in this appeal and the trial court itself had refused to be guided by the law for the proper adjudication of the respondent’s suit No. K/234/99 still pending at the trial court. This unfortunate conduct on the part of the learned counsel on both sides who continued to file motions after the ruling of the lower court of 19/7/99 showing clearly that its decision on its jurisdiction to hear the substantive suit was still being awaited, and the trial court itself which continued to entertain such matters knowing fully well that its jurisdiction, had been challenged and it had not resolved that issue of jurisdiction, is definitely responsible for the apparent confusion in this appeal. This is because the ruling of the court of 19/7/99 did not decide on the question of jurisdiction but merely decided to do so at the later stage of the hearing of the case. It is my view that in the circumstances, it is the duty of counsel on both sides to assist the trial court in resolving this fundamental issue rather than dragging it into a journey into the unknown.
The position of the law on the issue of jurisdiction is that it forms the very basis of adjudication. It is the fiat, the stamp of authority to adjudicate and if it is not there the courts proceedings no matter how well they are conducted are a nullity. Therefore once an objection has been raised challenging the jurisdiction of the court to adjudicate over the matter before it, it is mandatory that the court first deals with such objection whether by a motion on notice or in the pleadings, since it is the outcome of such consideration that will determine whether or not the substantive suit or appeal as the case may be, will be considered or heard. This position of the law is the same where such objection is as to the locus standi to institute the action. See Kalio v. Kalio (1975) 2 SC 15 at 22; Edun v. Odan Community (1980) 8-11 SC 103 at 124; Attorney General, Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552 at 566; Okoye v. N.C.F. Co. Ltd. (1991) 6 NWLR (Pt. 199) 501. In other words an issue of jurisdiction is unavoidably a matter of law. A Judge should not therefore continue to exercise judicial powers of adjudication when his competence to do so in respect of the matter before him is challenged, as was done in the instant case. When there is such a challenge to his competence, the Judge’s jurisdiction at that stage is strictly restricted to the exercise of ascertaining whether or not he has jurisdiction to entertain the cause or matter. See Okoye v. N.C.F. Co. Ltd. (supra). In the instant case therefore, the lower court was clearly in error in embarking on hearing of matters arising from suit No. K/234/99 including the motion for interlocutory injunction filed by the respondent, on which the ruling of 19/7/2000 is now on appeal.
However as I have earlier indicated in this judgment that all the grounds of appeal filed by the appellant and the issues arising from them are actually challenging a decision of the lower court which is yet to be delivered, namely whether or not the lower court had jurisdiction to entertain the substantive suit No. K/234/99 now pending at the lower court, the appeal is incompetent and is liable to be struck out. The jurisdiction of this court to entertain appeals from the decisions of the High Court in this country as prescribed under section 241 of the 1999 Constitution of the Federal Republic of Nigeria, can only be exercised by delivery of such decisions. In other words an appeal against the decision of the lower court on whether or not it has jurisdiction to hear and determine the substantive suit pending before it, can not be determined in an appeal against an interlocutory ruling in the same suit which is also a separate and distinct decision as defined under section 318(1) of the 1999 Constitution and the case of Eliochin (Nigeria) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47. For the foregoing reasons therefore, this appeal having been found to be incompetent is hereby struck out with no order on costs.
However, having regard to the circumstances of this case where the jurisdiction of the trial court to hear the substantive suit had been challenged and there is still no decision of the trial court one way or the other on the objection, the case is hereby remitted to the lower court for the learned trial Judge Adamu J. to perform the fundamental duty vested in his court in determining whether or not he has jurisdiction to hear the substantive suit No. K/234/99 now pending before that court.
RABIU DANLAMI MUHAMMAD JCA.: I have read before now the judgment just delivered by my learned brother Mahmud Mohammed J.C.A. I am in complete agreement with his reasoning and the conclusion arrived thereat. The appeal is clearly challenging the jurisdiction of the lower court whether it had the power to entertain the matter. The lower court is duty bound to decide whether or not it has jurisdiction to entertain the matter. It has not done so yet. As such the appeal in my opinion is premature. An appeal will only lie after the court has decided on the issue of jurisdiction. The appeal is therefore incompetent and it is hereby struck out.
I abide by all the orders made in the leading judgment.
VICTOR AIMEPOMO OYELEYE OMAGE JCA.: A recitation of the facts of the event before this appeal is necessary for the understanding of the issues. The facts are that the respondents in the appeal filed In the Court below in suit No. K/234/99 a suit in the Kano High Court in which he sought the following reliefs:
(a) A declaration that the value of the plaintiff’s property covered by a certificate of occupancy No. LKN/CON/RES/86/375 is at least N42, million as assessed by a chartered surveyor and valuer and as accepted by the defendants solicitors at the Failed Bank Tribunal Zone IV Lagos.
(b) A declaration that the plaintiff’s property covered by No. LKN/CON/RES/86 /375 having been valued for at least N42 million by a chartered surveyor and valuer a long time ago cannot now be sold for anything less whether by the defendant or any other person acting or purporting to act on their behalf or on behalf of any person on their behalf.
(c) A declaration that the deed of legal mortgage created over his property in question by the plaintiff in favour of the defendant does not in effect confer on the defendant their agents and or assigns the right to sell or dispose of his property for any amount lower than 42 million being its assessed value.
(d) An order of the court directing the defendant in case they are interested in keeping the plaintiffs property for their undischarged obligation, to pay the difference in value to the plaintiff as for assessment of the chartered estate surveyor and valuer on same.
(e) An order of the court restraining the defendant in case they are not interested in keeping the plaintiffs property from doing anything whether directly or indirectly that would &hamper” (sic) tamper with the value of the plaintiffs property, or that would seek to diminish its value and marketability howsoever and by whomsoever.
(f) Any such further order(s) as the court may at the end of the day find convenient and just to make.”
I shall herein after refer to the whole prayers as reliefs for a declaration on the value of the property. The printed record shows that pleadings were ordered, with 14 days to each side. The plaintiff filed his pleadings but the defendant now appellant in these presents failed to file despite repeated direction from the court to do so. Prior to the filing of the writ claiming reliefs for a declaration on the value of the property. The property contained in the certificate of occupancy in the name of the plaintiff No. LKN/CON/RES/86/375 had been legally mortgaged to the appellant who was defendant In the Court below. The same property was the subject of an order for forfeiture by the Zone IV Failed Bank Tribunal. The decision of the Failed Bank Tribunal was appealed to the Special Appeal Tribunal. The Special Appeal Tribunal in its judgment made the following observation:
It is the view of this tribunal that the learned counsel to the appellant is in a better position to know the nature of the action to be taken by the parties to ascertain the value of the property of the appellant that was confiscated to the respondent especially as the parties rely on different valuation for the property. What probably occasioned the comments of the Special Appeal Tribunal which sat as SAT/FBT/406/98, is their observation in the judgment, when they said &we are satisfied that the position of judgment referred to by counsel for the appellant here should be corrected to show that N15.57 million was the balance of money for the benefit of Intercity Bank Plc, and not the valuation of the confiscated property.”
The plaintiff, respondent in this appeal has deposed that it was the observation and comments of the Special Appeal Tribunal which informed his filing for reliefs for a declaration on the value of the property. He averred that he had no illusion after the judgment of the tribunal of where the title to the said property reside. While still awaiting the filing of the defendant’s brief In the Court below, the respondent to the appeal said because the defendant/appellant did not succeed in his application to the court to dismiss the respondent’s suit, he filed also another application stating that the respondent had no locus standi to institute the action since the title to the land no longer resided in the respondent. That application also failed and the defendant/respondent still failed to file his statement of defence. What followed was the insertion of a series of publication in the newspaper purporting to advertise for sale by auction the said house subject of which a declaration as to value was filed In the Court below. In reaction to the publication, the respondent said he applied for an order for injunction against sale of the said house. The court below issued eventually an order for an interlocutory restraint of the sale against the defendant now appellant. It is against the interlocutory order made by the Kano State High Court that the appellant had filed this appeal. The said ruling is dated 19/7/2000, and it was delivered by Justice B.S. Adamu.
The defendant/appellant filed three grounds of appeal from which he formulated two issues. The issues are:
(1) Whether the learned trial Judge had jurisdiction to hear the whole suit as constituted and to grant the order of interlocutory injunction as he did on 19/7/2000.
(2) Whether the learned trial Judge was right to have granted an order of interlocutory injunction in favour of the respondent even when he failed to establish a legal right to the property in dispute or any of the conditions for the grant of an injunction.”
The respondent formulated only one issue for determination. It is:
Whether the learned trial Judge had jurisdiction to entertain the respondent’s suit as filed before him and grant the order of interlocutory injunction in the way and manner he did in this case.”
The argument by way of submission of the appellant on issue one is summarized as follows, that since the property in dispute between the parties had at first been mortgaged to the appellant in consideration for money, and because following the issue of a dud cheque by the respondent, the event occasioned the conviction of the respondent. Consequently the Failed Banks Tribunal Zone (4) confiscated the said building, property of the respondent and the right of the respondent over the said property is thus extinguished and that the trial court is not possessed of jurisdiction to allow the respondent to relitigate any issue on the said property. The said property is covered by the certificate of occupancy No. LKN/CON/RES/86/375. The respondent in defence deposed that the said property was valued by a licensed surveyor at (N42,000,000) forty-two million naira, a long time before the order of confiscation was issued. The respondent’s submission is that the said property cannot and should not be sold for anything less.
On his issue two, the appellant submitted that the pre-requisites for the issue of an order of injunction were not met by the respondent, for instance he said the requirements to establish a legal interest in the subject matter on or which an injunction is issued was not met by the respondent. There was no satisfaction by the respondent in court that there exists or that he has a triable interest in the subject matter. In the absence of these, the appellant submitted that the court has no jurisdiction or competence to issue an injunction in favour of the respondent. Thus on the two issues raised by the appellant in this appeal on an interlocutory order, the appellant has complained on the issues of jurisdiction of the court to entertain the suit In the Court below, and the competence of the court to issue an interlocutory order of injunction. In response to this the respondent has asked simply:
Whether the court below, has jurisdiction to hear the suit and whether it can issue an order of injunction.”
The respondent submitted that he filed the action In the Court below not to challenge the forfeiture of his property by the Failed Bank Tribunal or to contest the affirmation of his conviction by the tribunal on appeal, thereto, but for the singular purpose of urging the court below to assess and determine the true value of the property in question.
I have read from the printed record the conclusion that the respondent would wish only that the balance of the property if any be given to him on deduction of his liability to the bank. It is a suit of equitable relief from the surrendered value of the mortgaged and confiscated property.
In answering the issue of jurisdiction formulated by the appellant, in this appeal it seems to me that the determination of the issue raised by the appellant on the interlocutory order made by the court below may without a proper consideration of the facts determine the suit pending In the Court below, when no evidence has been adduced even In the Court below, and the issue of jurisdiction was not raised and ruled upon by that court. It is trite law, that it is the writ or claim of the plaintiff which determines whether or not the court has jurisdiction see: Mustafa v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539; Akinfolarin v. Akinola (1994) 4 SCNJ 30.
It is also true that the complaint of the absence of jurisdiction of a trial court may be made at any stage of the proceedings. It is my considered view that the issue of lack of jurisdiction cannot be raised without a supporting evidence and the plaintiff whose claim is so thrown out was not given an opportunity to be heard In the Court below. In this appeal on the alleged lack of jurisdiction of the court below to hear the claim of the plaintiff respondent, the printed record does not show that the said objection was raised first In the Court below, and the court below was not afforded an opportunity to rule thereon before the issue is raised as a ground of appeal in this court. A plethora of authorities have shown that it is the correct affirmation of the law to say that the issue of lack of jurisdiction of the court may be raised at any stage of the proceedings see: Madukolu v. Nkemdilim (2001) 46 WRN 1; (1962) 1 All NLR 587. But the party concerned must be heard. The plaintiff whose writ is to be struck out is entitled to be heard. Where therefore there is no evidence In the Court below jurisdiction In the Court of Appeal raised cannot be entertained, see Oshotoba v. Olayitan, (2000) 5 NWLR (Pt. 644) 154 .
It is in my view right for the court to determine whether or not it has jurisdiction, even where it is being alleged that the court has no jurisdiction, the court must still review the submission. In Barclays Bank v. Central Bank of Nigeria (1986) 1 NWLR (Pt. 2) 409.
The court pronounced it to be settled at law that though it lacks jurisdiction, it is entitled to determine whether or not it has jurisdiction. In the instant appeal the application of the appellant to dismiss the suit In the Court below did not particularise the issue of jurisdiction, in any case, the appeal is not on the refusal of the court below to dismiss the claim for lack of jurisdiction. The appellant bluntly refused to file a statement of defence In the Court below and has filed this appeal on the interlocutory order made by the court below. The thrust of the issue as to the lack of jurisdiction of the court below to hear the suit at all is in my view incompetent because no such issue was raised In the Court below; upon which an appeal can be founded.
I am not unaware of the rule that the issue of jurisdiction may be raised at any stage of the proceedings, infact I believe this is the third time I have quoted the rule here, but it is my respectful view that though jurisdiction may be so raised it cannot be raised without evidence of it before the court. In this appeal the court below was not given such an opportunity to rule on the issue. See: Oshotoba v. Olayitan (2000) 5 NWLR (Pt. 644) 154.
In view of the above, I resolve the appellants issue one against him, and answer in the following manner the issue formulated by the respondent as to whether the court has the jurisdiction to hear the suit that the objection to the jurisdiction of the court below before the appearance of the defendant in that court to raise the issue of the jurisdiction of the court is premature. Similarly, it will not be fair on the affidavit evidence before the appellate court to rule on the issue of the jurisdiction of the court when no evidence on it has been tendered before the court below. As stated above, there is no joinder of issue on the matter of jurisdiction. It is true that the plaintiffs claim determines the jurisdiction of the court but until evidence is tendered in some cases the absence of jurisdiction of the court can or may not be apparent or seen ex facie. I decline therefore at this stage to rule that the court below has no jurisdiction. The second issue formulated by the appellant is whether the learned trial Judge was right to have granted the order of interlocutory injunction in favour of the respondent; even when the respondent failed to establish a legal right to the property in dispute or prove any of the conditions for the grant of an injunctive relief. An injunction is an order of court issued to restrain the performance of an act. An interlocutory injunction is issued after the court has heard evidence on affidavit from both parties; that is the party who seeks and the party who opposes the issue of an injunction. The rules are established that the party seeking an injunction should generally show that he had a legal interest or in any case a locus standi to seek the order from the court. The other condition in the consideration to order an injunction is the existence of a triable issue. It is elementary that the discretion is with the Judge presiding to weigh the balance of convenience before he determines whether or not to order an injunction. It is a discretionary power of the court which is generally exercised judicially and judiciously. In the instant appeal, the appellant has asked whether the trial Judge was right to issue an injunction. In other words was the discretion exercised judiciously? To answer the question in the issue one has to recite the relevant facts which is this. Despite repeated demands following the order for pleadings made by the court, the defendant now appellant refused and or neglected to file pleadings in his statement of defence. The defendant without recourse to court while the plaintiffs claim was pending before the court proceeded to make publications for sale of the property. (The subject on which the plaintiffs sought several declarations of the court. The printed record shows that it is upon seeing the publication of the sale of the property that the plaintiff In the Court below (report in this appeal), filed an application to restrain the appellant from selling the property by auction. Does the respondent have a locus standi to seek such an injunctive relief ? Citing the authority of the appellant in his brief in which my learned brother Niki Tobi JCA, said a locus standi is the forerunner or a predecessor to jurisdiction to issue an injunctive relief, in page 202, par. 6 see: Owners of MV Baco Liner 3 v. Adeniji (1993) 3 NWLR (Pt. 274) 195.
I will answer the above question thus that the respondent, who is the plaintiff In the Court below has a locus standi to ask the court as follows:
Please court do not allow the defendant to sell the property, subject of my suit before you, without recourse to you, and dissipate the very res on which I ask you to rule.”
In my view the pending suit is the pedal on which the respondent’s &locus” stands, and it was right in my view, well considered In the Court below to order a restraint of the sale of the property pending the determination of the suit In the Court below. Now, the issue as to whether the court below may determine the value of the confiscated property is a live issue before the court. The court is yet to determine the issue. In my view, the issue is triable. A triable issue has been described as an issue which cannot be dismissed with a wave of the hand. Such a contest that the respondent sought a declaration of court, cannot in my respectful view be waived off. Therefore there exists In the Court below a triable issue. I find no error in the decision of the court below when after weighing the issues canvassed before him by both parties, decided that the balance of convenience enabled him to restrain the appellant from depleting the subject matter of the suit before him, at least until the determination of the suit.
It is within the jurisdiction of the court even without a formal application of either of the parties to preserve the subject on which litigation is founded on in the matter before him.
In Halsbury Laws of England, the provision is made in which the inherent jurisdiction of the Judge as dominis litis to ensure until determination of the issue, that the subject matter of the suit before him remains undepleted. I therefore rule that the Judge In the Court below was right and not wrong to issue an injunctive order for the preservation of the res in the suit. The fact that such an order conveys a relief to the respondent does not create an error in the order. In the event I resolve the issue against the appellant. The proper order to make in the circumstance is to direct that the matter be remitted to the trial court for determination.
Cases referred to in the judgment
Akinfolarin v. Akinola (1994) 4 SCNJ 30.
A.G. Lagos State v. Dosumu (1989) 3 NWLR (Pt. 111) 552.
Barclays Bank v. Central Bank of Nigeria (1986) 1 NWLR (Pt. 2) 409.
Edun v. Odan Community (1980) 8 -11 S.C 103.
Eliochin (Nigeria) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47.
Kalio v. Kalio (1975) 2 S.C 15.
Madukolu v. Nkemdilim (2001) 46 WRN 1; (1962) 1 All NLR 595.
Mustafa v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539.
Okoye v. N.C.F. Co. Ltd. (1991) 6 NWLR (Pt. 199) 501.
Owners of MV Baco Liner 3 v. Adeniji (1993) 3 NWLR (Pt. 274) 195.
Oshotoba v. Olayitan (2000) 5 NWLR (Pt. 644) 154.
Statutes referred to in the judgment
Failed Bank (Recovery of Debts) and Financial Malpractices in Banks Decree No 18 of 1994; s. 20(c)
Constitution of the Federation of Nigeria 1999; Ss. 241 & 318(1)
