Abel Gbadegesin Adisa & Ors. V. The Military Administrator of Oyo State & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

KUMAI BAYANG AKAAHS, J.C.A.

The issue in this appeal is whether an order of interlocutory injunction can be granted to restrain a completed action. The plaintiffs now appellants sued the respondents/defendants for the following reliefs:

“1. A declaration that the purported appointment and naming of the 3rd Defendant as the Baale of Komu was defective and contrary to custom and procedure relating to the filling of the vacant (sic) of the Komu Chieftaincy under Section 4(2) of the Chiefs Law 1957 of the Customary Law regulating the selection to (sic) the Baale of Komu Chieftaincy and therefore invalid.

2. A declaration that the appellation of title “ONIRO” being arried by the 3rd defendant is contrary to the custom and tradition of Komu Chieftaincy and declaration regulating the selection to (sic) the Baale of Komu Chieftaincy and therefore invalid.
3. An order setting aside the purported appointment of the 3rd defendant as the Baale of Komu.
4. An order of perpetual injunction restraining the 1st, 2nd and 4th defendants from recognizing the 3rd defendant as the Baale of Komu.
5. An order setting aside the appointment of the Warrant Kingmakers as the purported appointment was unlawful.
6. An order of injunction restraining the defendants whether by themselves, servants or privies from installing and presenting the instrument of office to the 3rd defendant.

After filing the Writ, the plaintiffs filed a motion asking for an interlocutory order of injunction restraining the 1st, 2nd, 4th and 5th Respondents from performing the installation or coronation rites and/or presentation of instrument of office to the 3rd respondent and to restrain the 3rd respondent from parading himself as the Baale of Komu until the substantive suit is decided. There was a 6 paragraph affidavit of urgency that accompanied the motion together with a 32 paragraphs affidavit in support of the motion. A counter-affidavit was sworn to by Yemi Ogunsesan, the Assistant Director (Chieftaincy Matters) in the Department of Local Government and Chieftaincy, Office of the Executive Governor of Oyo State on behalf of 1st and 2nd Respondents while Chief Abraham Adekola, the 5th respondent deposed to a counter-affidavit in favour of 3rd respondent and himself. The 4th respondent did not file a counter-affidavit. There was conflict in the affidavits as to whether the installation of 3rd respondent had taken place and so the learned trial judge P. O. Aderemi, J (as he then was) ordered for oral evidence and Mr. A. O. Adewunmi the Deputy Secretary to the 4th Respondent testified. Two letters were tendered in evidence. They are letter with reference No. CB.141/43/31 Vol.1/111/655 dated 27/10/1997 confirming the appointment of 3rd defendant/respondent as the new Baale of Komu which was marked Exhibit “A” while the letter written by the 3rd defendant to the Chairman, Itesiwaju Local Government was received in evidence as Exh. “B”. The court found in favour of the respondents and dismissed the application for injunction.

The plaintiffs appealed against the ruling and raised three issues for determination. The issues are:-

i) Whether the material evidence before the learned trial Judge by way of Affidavit evidence and documentary evidence were sufficient to enable him exercise his discretion In favour of the Appellants.

ii) Whether the learned trial judge was right in not considering the substantiality of the claim and balance of convenience before dismissing the application for injunction.

iii) Whether having regard to the circumstances of this case the learned trial judge was right in holding that the installation has taken place more so when the Respondents did not deny that coronation and presentation of Instrument of office to the 3rd Respondent has not been done.”

The 1st and 2nd Respondents filed a preliminary objection to contend that:

i) That issue (ii) as formulated by the appellants at page 3 of the Appellant’s brief of argument is not covered by any ground of appeal, thus it should be struck out as incompetent. See Tukur v Govt. of Taraba State (1997) 6 NWLR (PI. 510) 549.

ii) That particular 2 does not complement or arise from ground 1 of the grounds of appeal in that the learned trial judge did not make any pronouncement which inevitably led to determination of issue in (sic) case and should therefore be struck out as incompetent and irrelevant.

The 1st and 2nd respondents formulated a sale issue for determination thus:

“i) Whether the learned trial judge was not right to have refused the appellants’ application for an order of interlocutory injunction in the circumstances of this case.

The 3rd, 4th and 5th respondents also raised preliminary objection to issue (ii) in the appellants’ brief and particular 2 of ground 1 of the appeal. The 4th respondent also attacked particular 3 of Ground 4 and said it constituted a separate ground of appeal and does not flow or arise from Ground 4 and so should be struck out.