Alhaji Ibrahim Muhammed V. Nuhu Umar & Ors. (2005)

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BABA ALKALI BA’ABA, J.C.A.

This is an interlocutory appeal against the ruling of the High Court of Justice, Kaduna, Kaduna State, delivered on 20/11/2000, by M. L. Mohammed, J, sitting in the Zaria Judicial Division. The appellant herein is the plaintiff at the lower court where he instituted an action against the defendants now respondents, claiming the following reliefs:-

“1. A declaration that the plaintiff is the bona fide owner and proprietor of Al-Fidrah Nursery and Primary School, situated at No.86, Rimin Tsiwa, Zaria city, Kaduna State.

2. A declaration that the plaintiff as the owner and proprietor of Al-Fidrah Nursery and Primary School, is entitled to management and control of the said School, including its funds, staff, public, building and any other property.
3. An order compelling the defendants to render an account of all funds and money collected in the name of Al-Fidrah Nursery and Primary School from January 2000 to date and payment over to the plaintiff.
4. An order compelling the defendants to surrender and deliver up possession of all documents, file etc, of Al-Fidrah Nursery and Primary School to the plaintiff.
5. An order of perpetual injunction restraining the defendants their privies, servants, employees and/or agents from interfering with the management and control of the affairs and properties of Al-Fidrah Nursery and Primary School.
6. An order of perpetual injunction restraining the defendants, their privies, servants, employees and/or agents from entering the office and classrooms for the purpose of collecting funds or School fees from pupils or any other person or opening new branches for the same purpose or otherwise managing the affairs and properties of the said Al-Fidrah Nursery and Primary School.”

The writ of summons was filed on 31st day of August, 2000 and endorsed by the Registrar on the same date. On 11th day of September, 2000, the appellant filed a motion on notice praying for the following orders:

“An order of an interlocutory injunction restraining the defendants/respondents, their privies, servants, employees and agents from collecting or continuing to collect the funds, money or School fees and in any other manner interfering with the control and management of the property of Al-Fidrah Nursery and Primary School situates at No.86, Rimin Tsiwa, Zaria city pending the determination of the substantive suit.

And for such further order(s) as this Hon. Court may deem fit to in the circumstance.”

The motion was supported by a seven paragraph affidavit. The respondents filed a counter-affidavit of seven paragraphs. After hearing the arguments and submissions from the applicant and the respondents’ counsel, the learned trial Judge, at page 47 of the record, held,

“This court has considered the submission of the 2 learned counsel and the affidavit before it including various exhibits. There are so many serious conflicts in the affidavit of the parties which can only be thrashed out through calling oral evidence as affidavits contained averments and strenuous denials on both sides and going into these at present, will amount to going into substantive suit.

In the interest of pupils of the School (subject matter), which is paramount by the provisions of order 46 of the High Court (Civil Procedure) Rules, 1987, this court hereby vacates in its order obtained ex parte dated 31/8/2000,refuses this application and orders that the status quo ante bellum be maintained pending the determination of the substantive suit.

The court also orders accelerated hearing in this suit.”

Dissatisfied with the decision the appellant appealed to this court on four grounds of appeal contained on his Notice of appeal dated 12/10/2001, contained at pages 48-49 of the record. The grounds of appeal are as follows:-

“GROUNDS OF APPEAL

1. The ruling of the learned trial High Court Judge is unreasonable, unwarranted and can not be supported having regards to the weight of evidence. (Ground one).
2. The learned trial Judge erred in law when she delivered her ruling without evaluating the affidavit evidence before the court and that has occasioned a miscarriage of justice.

Particulars

(i) In law it is primary duty of the trial court to evaluate the affidavit evidence before it in respect of an interlocutory application as in this case.