Alhaji Alhassan Shuaibu V. Muhammed Babangida Muazu & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

KUMAI BAYANG AKAAHS, J.C.A.

The pith of this appeal is centred on whether a restrictive order of injunction can be granted to set aside completed acts and restore the parties to the status quo ante bellum if the defendant sought to be restrained completed the act after having been served with a notice of motion seeking to restrain the act he hurriedly completed before the date fixed on the motion for hearing.

In the writ of summons dated 4/4/2005 but issued on 11/4/2005 the claims of the plaintiff against the defendants jointly and severally are as follows:

1. A declaration that the purported selection of the 1st defendant as the Emir of Kanam. Kanam Local Government Area, Jos, Plateau State upon the selection exercise carried out by the 4 kingmakers of Kanam Emirate and 4th, 5th and 6th defendants on Tuesday, the 29th day of March, 2005 is contrary to the procedure of selection contained in the Chieftaincy Declaration of Kanam Emirate registered in Plateau State of Nigeria in September, 1976 and is therefore null, void and of no effect such that it should be set aside.
2. A declaration that the plaintiff was the rightful candidate selected by the 4 kingmakers of Kanam Emirate as the Emir of Kanam during the selection exercise of Tuesday, 29th day of March, 2005 and not the 1st defendant.
3. A declaration that the procedure adopted by the 4th, 5th & 6th defendants in the selection of the 1st defendant as the Emir of Kanam by excluding the statutory observers and by pressurizing the Kingmakers to change their selection is irregular, wrongful, unlawful, unconstitutional and against the rule of natural justice and therefore null, void and of no effect.
4. A declaration that the approval and announcement of the 1st defendant as the Emir of Kanam made by the 2nd and 3rd defendants is irregular, wrongful, null, void and of no effect.
5. A declaration that the purported selection of the 1st defendant as Emir of Kanam and his subsequent approval by the 2nd to the 8th defendants was fraught with fraud and irregularities which render the selection and approval null and void and of no effect whatsoever.
6. An order setting aside the purported selection, approval and announcement of the 1st defendant as the Emir of Kanam, Kanam Local Government Area, Jos Plateau State.
7. Perpetual injunction restraining the 2nd to 8th defendants, by themselves, their privies, servants and/or agents or otherwise whosoever from recognizing the 1st defendant as the Emir of Kanam.
8. Perpetual injunction restraining the 2nd to the 8th defendants by themselves, their privies, servants and/or agents or otherwise whosoever from installing the 1st defendant as Emir of Kanam and/or issue to the 1st defendant staff of office and any other insignia of office or certificate of office as the Emir of Kanam.
9. Perpetual injunction restraining the 1st defendant from parading or holding out himself in any form as a recognized Emir of Kanam anywhere within or without Plateau State and/or performing the traditional functions of Emir of Kanam.

10a. A mandatory injunction directing 2nd to the 8th defendants to approve, install and/or coronate the plaintiff as the Emir of Kanam and give to him all necessary items and certificate of office.

Alternatively

10b. An order directing the 2nd, 3rd, 7th and 8th defendants to reconduct selection exercise of Emir of Kanam in accordance with the procedure of selection contained in the Chieftaincy declaration of Kanam Emirate as registered in Plateau State of Nigeria. These reliefs are reproduced in paragraph 4.01-4.10b of the statement of claim. An affidavit of urgency and a motion ex-parte for substituted service were filed along with the writ of summons and statement of claim. An affidavit of service of the writ of summons and motion on notice on 2nd-8th defendants was deposed to by the bailiff on 5/4/05 (see page 102 of the records).

The facts leading to this appeal are as follows:

On the 4th of April, 2005, the plaintiff now appellant, filed a writ of summons and statement of claim and also filed a motion on notice and affidavit in Support with a 7 paragraph affidavit of urgency seeking the following reliefs:

(a) An injunction restraining the 2nd to the 8th defendants/respondents and their officers, servants and/or agents or whomsoever from taking any step pursuant to or in recognition of the 1st defendant as Emir of Kanam till the substantive case is decided.

(b) An injunction restraining the 2nd-8th defendants/respondents, their agents, servants, officers and privies from taking any step whatsoever to install or coronate the 1st defendant as Emir of Kanam and from performing the installation ceremony, or from presenting to him any instrument of appointment, paraphernalia of office either in public or in camera till the final determination of this suit.

(c) An injunction restraining the 1st defendant from submitting or presenting himself for installation, coronation or conferment with the instrument of staff of office or parade himself as one or allow himself to be beaded as Emir of Kanam till the finality of this suit.

After the plaintiff had filed the aforesaid writ of summons, statement of claim and motion on notice seeking to restrain the defendants all dated 4th April, 2005, the defendants went ahead to install and coronate the 1st defendant as Emir of Kanam on 9th April, 2005. This prompted the plaintiff to file another motion on notice on the 14th of April, 2005 seeking the following orders:-

1. AN ORDER setting aside the installation of the 1st defendant/respondent which the defendants/respondents (particularly the 2nd respondent) carried out on the 9th day of April, 2005 in defiance of and to overreach the pending application for injunction of the plaintiff which application was earlier served on the respondents between 4th and 5th April, 2005.
2. AN ORDER directing that the 1st defendant/respondent, his servants, agents officers, members of family and/or relations to vacate the official Palace of Emir of Kanam forthwith until the court holds otherwise.
3. AN ORDER directing the defendants/respondents not to harass, molest, intimidate and/or frighten the four (4) Kingmakers with arrest, detention and assassination.
4. AN ORDER directing that the defendants/respondents cannot and will not be heard on the merit of the substantive suit until they have fully withdrawn, recalled and/or removed the 1st defendant/respondent from the official Palace of Emir of Kanam.

The grounds upon which the application was predicated are: –

1. The defendants/respondents were served with the writ of summons, statement of claim containing injunctive reliefs as well as motion for injunctive reliefs on Monday the 4th and Tuesday the 5th of April, 2005.
2. That though there was an affidavit of urgency praying for accelerated hearing of the motion for injunction, matter could not be heard before now due to the absence of the Honourable Chief Judge, who has the responsibility to assign the case.
3. The defendants/respondents were aware of the pending suit and the plaintiff’s application for injunctive reliefs but nevertheless went on to install the 1st defendant/respondent to overreach the plaintiff/applicant and to impose a fiat (sic) accompli on the Honourable Court.
4. The 4 Kingmakers who unanimously selected the plaintiff/applicant are being frightened and threatened with arrest, detention and/or assassination by the defendants/respondents for their insistence that the plaintiff/applicant was the candidate they unanimously selected.
5. That on the facts the defendants/respondents cannot and should not be heard until they have purged themselves of their contempt.
6. Refusal or neglect to reverse the installation and/or coronation of the 1st defendant/respondent may result to violence in the fragile Jos City of Plateau State.

A memorandum of conditional appearance was filed by N. D. Shaseet, Principal State Counsel in the Ministry of Justice, Jos on behalf of 2nd-8th defendants on 15/4/2005 in which he deposed to a 13 paragraph counter-affidavit in opposition to the motion filed on 14/4/2005 stating that the 2nd-8th respondents were served with the writ of summons on Tuesday, 12th April, 2005. A notice of preliminary objection to the jurisdiction of the court to hear the motion on notice dated 4th April, 2005 was also filed by the Ministry of Justice.