Alhaji Aransi Ladoke & Ors V. Alhaji M. Olobayo & Anor (1992)

LawGlobal-Hub Lead Judgment Report

OWOLABI KOLAWOLE, J.C.A. 

In this interlocutory appeal, the Plaintiffs/Respondents’ claims as endorsed on the Writ of Summons in the Lagos High Court are as follows:-

“1. A Declaration that the Defendants were, by virtue of a unanimous decision of the Working Committee of the Alayabiagba Market Association, Boundary, Ajegunle, Lagos State, duly and lawfully suspended from office as the Executive Committee of the Association with effect from the 18th day of December, 1990.

2. A Declaration that the Plaintiffs on record are the Executive Members of the Alayabiagba Market Association, Boundary, Ajegunle, Lagos State.
3. An order that the Defendants do render an account of all money or monies collected by them from members of the Alayabiagba Market Association, Boundary, Ajegunle, Lagos State being levies, rents, charges dues and by whatever name called collected at various times between 1982-1990.
4. A perpetual injunction restraining the Defendants from parading themselves as Executive members of Alayabiagba Market Association Boundary, Ajegunle, Lagos State and from doing anything pursuant to the said offices to wit collection of rents, dues, charges, levies and performance of such functions incidental thereto.
5. A perpetual; injunction restraining the Defendants whether by themselves, agents, servants or representatives in interest or otherwise however from interfering in any way whatsoever with the performance by the Plaintiffs on record of their lawful duties as the Executive members of the Alayabiagba Market Association, Boundary, Ajegunle, Lagos State.”

The Respondent served with the Writ of Summons an application for the following orders:

“1. AN ORDER granting leave to the Plaintiffs/Applicants to sue for themselves and on behalf of 43 other members and traders of the Alayabiagba Market whose names are stated in the Schedule annexed to the Affidavit in support of this application.

2. AN ORDER OF INTERLOCUTORY INJUNCTION restraining the defendants/Respondents whether by themselves or by their servants, agents, privies, and assigns or otherwise howsoever from erecting or further erecting Market stalls at the Alayabiagba Market pending the final determination of this suit.
3. AN ORDER OF INTERLOCUTORY INJUNCTION restraining the defendants/Respondents by themselves or by their servants, agents, privies and assigns or otherwise howsoever from further parading themselves as the Executive Committee of the Alayabiagba Market Association pending the final determination of this suit.
4. AN ORDER OF INTERLOCUTORY INJUNCTION restraining the defendants/Respondents by themselves or by their servants agents, privies and assigns or otherwise howsoever from collecting rents/levies, dues charges or any money whatsoever from traders in the Alayabiagba Market until the defendants/respondents shall have rendered account of money so far collected on behalf of the association. ”

The learned trial Judge, Adeniji J. granted an order of interlocutory injunction restraining the Defendants/Respondents whether by themselves or by their servants, agents, privies and assigns and otherwise howsoever from erecting or further erecting market stalls at the Alayabiagba Market pending the final determination of this suit. He also ordered that the Defendants be restrained from parading themselves as the Executive Committee of the Alayabiagba Market Association pending the final determination of the suit pending before him.

The third order of injunction restrained the Defendants from collecting rents/levies dues, charges or any money whatsoever from traders in the Alayabiagba Market until the Defendants/Respondents shall have rendered account of money so far collected on behalf of the Association.

The Defendants promptly filed a notice of appeal against the said order of Adeniji J. dated 13 February, 1992. They also applied for a stay of execution of the orders of the lower court pending the determination of the appeal lodged against the said Ruling:

On the 12 May, 1992, Adeniji J. refused the application for a stay of execution and pursuant to Order 3, rule 3 (3) and (4) of the Court of Appeal Rules 1981, as amended the Applicants have applied to this Court for a similar relief.

An affidavit of urgency was sworn to by Yekini Adenle, the third Applicant in this matter. In paragraphs 6, 7, 8, 9, and 10, it was deposed to as follows:-

“6. That the refusal to stay the order of injunction has caused a disruption on the economic life of the over 19,000 traders at Alayabiagba Market whom we represent as against the 43 traders allegedly in support of the Respondents.

7. That many of the stalls under construction have no roofs thus causing havoc during this raining season.
8. That the current runaway inflation of about 100% rise in prices since the January, 1992 economic measures will also cause a huge rise in the costs of the reconstruction of our stalls when the injunctions is lifted.
9. That I believe very strongly that the facts deposed to above will add to the current tension in the Country resulting into riots and deaths.
10. That I believe that unless this application is heard with all deliberate speed, riot may erupt in the Market by traders whose economic lifeline is gravely threatened.”

The application was filed on 20 May 1992.

It came up on the cause list on June 1, 1992 and after filing of some other processes on June 2, June 5 and June 10, the Court heard the application on 17 June 1992.

In point of fact, the applicants also sought an order for leave to file and argue additional grounds of appeal; that prayer was not opposed and it was accordingly granted. The additional grounds of appeal were numbered 9 to 12.

Learned counsel for the Plaintiffs, M. C. Okoh, stoutly opposed the application for stay of execution of the orders made by Adeniji J. dated 13 February, 1992 pending the determination of the appeal lodged on 26 February, 1992 by the applicants. The applicants filed an affidavit in support of the motion sworn to by Yekini Adenle, the third applicant. The Ruling of the lower court, the enrolled order, the notice of appeal, the additional grounds of appeal were duly exhibited to the affidavits.

A second affidavit filed the same day on 20 May, 1992 when the motion was filed was sworn by Kasali Abiola Ibiyemi, the Area Officer of Ajeromi Area Office of the Ojo Local Government, Ajegunle, a third affidavit titled further affidavit filed on 2 June, 1992 was sworn by Ibrahim Nda, the 4th Applicant herein.

The ruling refusing stay of execution by the court below was exhibited with the affidavit. On June 5, the Respondents filed a counter-affidavit sworn to by Alhaji Mukaila Olobayo and Ganiyu Ibrahim, the two plaintiffs/Respondents in this application. The fourth affidavit filed on 10th June, 1992 was sworn to by Eno Bassey, a law clerk in the Chambers of Mr. Femi Okunnu, learned counsel for the Applicants. He exhibited with it a copy of the Rules and Regulations of the Alayabiagba Market Association.

The last affidavit filed on 10th June, 1992 after the counter affidavit has been sworn disclosed some very vital facts which must be carefully considered in this application. The affidavit relates to the second and fourth orders of interlocutory injunction granted by Adeniji J. which –

(1) restrained the applicants whether by themselves or by their servants, agents, privies and assigns from erecting or further erecting market stalls at the Alayabiagba market pending the final determination of the suit.

(2) restrained the Applicants by themselves or by their servants, agents, privies and assigns from collecting rents/levies, dues charges or any money whatsoever from traders in the Alayabiagba Market until the defendants/respondents shall have rendered account of money so far collected on behalf of the association.

In the affidavit of Eno Bassey, the fourth affidavit, he deposed in paragraph 4, 6 and 7 thereof as follows:-

“4. That Kasali Abiola Ibiyemi, the Ajeromi Area Officer of the Ojo Local Government informed me… that his official duties include the superintendence of the Alayabiagba Market and collection of stallage fees from traders to whom the Ojo Local Government Council and its predecessors Lagos City Council in 1965 and later Apapa Local Government Council allocated stalls.

“6. That I am furthermore informed by the aforementioned Kasali Abiola Ibiyemi… that the reconstruction of the Market is the constitutional function of the Ojo Local Government and the works are being executed on its behalf and with its authority by the Executive Committee of the Alayabiagba Market Association including the Applicants.

“7. That Kasali Abiola Ibiyemi aforementioned informed me… that it was the Ojo Local Government Council which demolished the stalls for reconstruction and none of the persons named in paragraph 5 above owns any stall in the market at the time of demolition.”

The two vital facts disclosed in this affidavit are that –

(1) The superintendence of the market and the collection of stallage fees come under the jurisdiction of Ojo Local Government Council and

(2) The demolition and the reconstruction of the stalls at the Alayabiagba Market come under the constitutional functions of the Ojo Local Government.

The Ojo Local Government Council is not a party in these proceedings. I shall say more on this matter later in this Ruling but the very important question is whether an order of injunction made against the defendants can bind the Ojo Local Government Council.

(See Marengo v. Daily Sketch & Sunday Graphics Limited (1948) 1 All E.R. 406 H.L.) where the House of Lords held that it was not competent to the Court to hold a man bound by an injunction, who is not a party in the cause for the purpose of the cause.

In the affidavit in support of the motion, Yekini Adenle, the third Applicant, deposed in paras. 9 and 22 as follows –

“9. That I am informed by our leading Counsel, Mr. Femi Okunu, – that the Alayabiagba Market is a market established, maintained by and regulated by the Ojo Local Government under the 4th Schedule to the Constitution of the Federal Republic of Nigeria and has been so maintained and regulated by its predecessors local government authorities since its acquisition in 1965 by the Lagos City Council.”

“22. That although the new market was officially commissioned on the 31st December, 1991 by the Deputy Governor of Lagos State and the stalls reallocated to their former owners by the local authority, the cost of completing the construction of the market will increase every day with the current inflation trend of 100% and will become more astronomical at the conclusion of the trial of the action.”

In the counter-affidavit filed on 5 June, 1992, the Respondents did not deny these weighty statement of facts. The effect of their failure to deny these facts is that those facts are deemed to be admitted and are no longer in controversy. When positive assertions are made in an affidavit which go to the root of the application, it is incumbent on the opposite party to deny such positive allegations clearly and specifically. When the assertions are left undenied, the court is bound to accept those assertions as proved and such assertions may be used in favour of the deponent and against the adverse party. (See Nwosu v. Imo State E.S.A. (1990) 2 NWLR (pt.135) 688, 721A, 735A-B; Alagbe v. Abimbola (1978) 2 S.C. 39; Abeo v. Ogunyemi (1990) 3 NWLR (Pt.141) 758,762 E-F.)

It is therefore common ground between the parties based on the averments which have not been denied in the affidavits –

(1) That the Alayabiagba Market was established, maintained and regulated by the Lagos City Council in 1965, the Apapa Local Government Council and today by the Ojo Local Government Council.

(2) That the superintendence of the Market and the collection of the stallage fees therein come directly under the authority of Ojo Local Government Council.

(3) That the demolition and the reconstruction of the stalls at the Alayabiagba Market come under the constitutional functions of the Ojo Local Government Council.

(4) That as a result of the interlocutory injunction which restrained the applicants from erecting whether by themselves or by their servants, agents, privies and assigns, the cost of completing the construction of the market will increase every day with the current inflation trend of 100% and will become more astronomical at the conclusion of the trial of this action thereby making the completion of the construction of Markets virtually impracticable or impossible.

It is also common ground between the parties that the Respondents represent about 43 members of the Alayabiagba Market Association while the Applicants represent about 20,000 traders of the Market Association.

In order to appreciate whether there is any substance in some of the grounds of appeal filed against the Ruling of the learned Judge granting the orders of interlocutory injunction. I reproduce hereunder grounds 1, 2, 3 of the original grounds of appeal and grounds 10, 11 and 12 of the additional grounds of appeal:-

“1. The learned trial Judge erred in law and on the facts in granting the plaintiffs prayer for an order restraining the defendants by themselves or by their servants, agents, privies and assigns or otherwise howsoever from further parading themselves as the Executive Committee of the Alayabiagba Market Association pending the final determination of the suit, when:

(a) the plaintiffs based their prayer to this effect upon the claim in the Writ of Summons that the Executive Committee of the Market Association comprising of the defendants had been suspended;

(b) the issue as to the validity or otherwise of this “Suspension” is to be determined after evidence has been led at the hearing of the substantive case;

(c) the action of the court in granting this prayer at this stage is tantamount to determining the issue of valid suspension or otherwise without first having had the benefit of hearing evidence on the point.

2. The learned trial Judge erred in law and on the facts in granting the plaintiffs’ prayer restraining the defendants whether by themselves or by their servants, agents, privies and assigns or otherwise howsoever from erecting or further erecting market stalls at Alayabiagba Market pending the final determination of the suit, when;

(a) the court in the exercise of its discretion has a duty not to act inequitably.

(b) the Constitutional rights and duties of the Ojo Local Government vis-a-vis markets within its domain have thereby been denied.

3. The learned trial Judge erred in law and on the facts in granting the application of the plaintiffs to act in a representative capacity when on the uncontradicted evidence before the court, the plaintiffs and the other persons for whom they claim to act do not share a common interest amongst all of themselves such as would warrant the granting of the application.
4. Having held inter alia that the court “has to look at the whole case to consider whether or not to grant an injunction. This will of course mean looking not only at the affidavit evidence and the relevant documents exhibited, but also include the parties pleadings in this case, the statement of claim” the learned Judge erred in law holding that there is a serious question to be tried when

(i) The Judge did not examine the plaintiffs’ statement of claim in this case as none was filed and served on the 1st, 3rd, 4th and 6th defendants.

(iii) The locus standi of the 1st and 13 other plaintiffs was in issue.

11. The learned Judge erred in Law in granting the injunction sought and finally decided the contest between the parties summarily without some consideration whether the plaintiffs would on the authority of:

(a) Lawrence David Limited v. Ashton (1991) 1 All E.R 384;

(b) NWL Limited v. Woods (1979) 3 All E.R 614;

(c) Cayne v. Global Natural Resources Plc (1984) 1 All E.R. 225.

be likely to succeed at the trial.

12. The learned Judge erred in law and without jurisdiction granting an order of interlocutory injunction to restrain the defendants from erecting market stalls at Alayabiagba market pending the determination of the suit when on the authority of Odofin v. Agu (1992) 3 NWLR (Pt.229) 350 erection of market stalls “was not one of the wrongful acts complained of or reliefs claimed by the plaintiffs in the writ of summons.”

In arguing the application for stay of execution of the Ruling of Adeniji J. made on 13th February 1992, leading counsel for the appellants/applicants, Mr. Femi Okunnu relied on all the affidavits filed in support of the application. He referred particularly to the claim of the respondents and the orders of injunction of the learned Judge.

Learned counsel submitted that the law is well-settled that the granting of a stay of execution is at the discretion of the lower court but such discretion must be exercised judicially and judiciously. Counsel submitted that this Court has held that it will be slow to interfere with the exercise of discretion by the court below unless the exercise is manifestly wrong, arbitrary, reckless or injudicious. Learned counsel cited the following cases in support-

(1) University of Lagos v. C. I. Olaniyan & Ors. (1985)1 NWLR (Pt.1) 156 at 163.

(2) Nwabueze v. Nwosu (1988) 4 NWLR (Pt.88) 257 at 262

(3) University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143

Counsel referred to ground 12 of the additional grounds of appeal. Counsel contended that the learned Judge granted an interlocutory order which was not claimed in the substantive claim. In counsel’s view, this was a reckless, arbitrary, wrong and injudicious exercise of discretion by the learned Judge.

There seems to me to be a misconception on the part of learned counsel with respect to when an appellate court can interfere with the exercise of discretion of a court of trial. When the exercise of the discretion of a court of trial becomes the subject of a review by the appellate court, the principles enumerated by learned counsel and set out in the cases cited above are applicable. In the cases of Olaniyan, Aigoro and Nwosu, the discretion of the court of trial became the subject of review on appeal. In the present matter, the exercise of the discretion by the court below is not before the Court of Appeal on review. The Court of Appeal is not hearing the present application on appeal from the High Court consequently the exercise of the discretion of the Court below is not the subject of review. This court is hearing this application under Order 3 rule 3 (3) & (4) of the Court of Appeal Rules as amended which provides that –

“(3) Where an application has been refused by the court below, an application for a similar purpose may be made to the Court within 15 days after the date of the refusal.

“(4) Whenever under these Rules an application may be made either to the court below or to the Court it shall not be made in the first instance to the Court except where there are special circumstances which make it impossible or impracticable to apply to the court below.”

I am firmly of the view that the present application must be determined solely at the discretion of this Court without considering whether the court below exercised its discretion rightly of wrongly. This court must consider the application for stay of execution entirely upon the materials placed before it and in the light of the principles guiding the grant of a stay of execution pending appeal.

It is settled law that the onus is on the party applying for a stay of execution to satisfy the court that in the peculiar circumstance of his case a refusal of a stay would be unjust and inequitable.

The case of Balogun v. Balogun (1969) 1 All NLR 349 coram Coker, Madarikan and Udoma J.J. S.C. appears to me to be very apposite in this particular case. In the judgment of the court delivered by Coker J.S.C. at page 351, the court observed that:-

“We are in full agreement with the principle that in order to obtain a stay of execution of a judgment against a successful party an applicant must show substantial reasons to warrant a deprivation of the successful party of the fruits of his judgment by the court. We are in no doubt whatsoever that where grounds exist on the motion suggesting a substantial issue of law to be decided on the appeal in an area in which the law is to some extent recondite and where either side may have a decision in his favour such substantial grounds as would warrant an interference clearly exist.”

I shall therefore examine the application for stay of execution from this vantage position.

The contention of Mr. Femi Okunnu, leading counsel for the Applicants as deposed to in the affidavits and as demonstrated in some of the grounds of appeal is that-

“(1) there are grounds suggesting substantial issue of law to be decided in the interlocutory appeal where either side may have a decision in his favour.”

In other words, the grounds of appeal which I have earlier referred to above are not frivolous. Mr. Okunnu complained in grounds 2 and 12 of the grounds of appeal that the order of interlocutory injunction which restrained the Applicants from erecting or further erecting market stalls at the Alayabiagba market pending the final determination of the suit was not claimed on the Respondents’ writ. Counsel submitted that the nature of the injunction claimed should be stated on the endorsement.

Mr. Okoh’s reply to this contention is that all the Respondents have to show is that the order relates to the cause of action. Counsel referred to Okoya v. Santilli (1991) 7 NWLR (Pt. 206) 753, 765 A-B. The Supreme Court and this Court have always said times without number that a court ought not to play the role of father Christmas which can go around granting to parties relief which they have not asked for. A court is without power to award to a claimant or grant a relief which he did not claim.

In Odofin v. Agu (1992) 3 NWLR (Pt.229) 350 referred to by Mr. Femi Okunnu, learned counsel for the applicants, Nnaemeka Agu J.S.C. observed at pages 372-373 G-A as followed,-

“In our adversary system, a court makes orders on the lis or issues raised by the parties. Where a court grants to a party a relief which it did not seek, it has made the order on a lis not raised by the party. This will be an order made without jurisdiction and therefore a nullity”.

This court, in Okoya & Ors. v. Santilli (1991) 7 NWLR (Pt.206) 753; observed at page 765 B-C (per Niki Tobi J.C.A.) as follows:-

“An interlocutory application or motion should normally be based on the substantive action before the court. In other words, an interlocutory application or motion should normally be based on specific reliefs sought in the substantive action. As a general rule therefore, if an interlocutory application or motion does not seek a prayer related to the cause of action, the application or motion is incompetent. An applicant cannot, at the interlocutory level, make a fresh case, different from the cause of action.”

In the matter before us the interlocutory order granted in favour of the respondents which restrained the applicants from erecting market stalls at Alayabiagba market was not endorsed on the writ of summons and was therefore not a claim before the court below. But Mr. Okoh relies on Order 58 rule 12 of the Rules of the Supreme Court of England. To this, Mr. Okunnu countered that where there is a provision in our Rules of Court for the doing of any act, no recourse shall be had to the Rules of practice in England.

Mr. Okunnu contended that Order 39 rule 12 of the High Court of Lagos State (Civil Procedure) Rules covers the present application. It provides as follows:-

“12. In any action or matter in which an injunction has been, or might have been claimed, the plaintiff may, before or after judgment, apply for an injunction to restrain the defendant or respondent from the repetition or continuance of the wrongful act or breach of contract complained of, or from the commission of any injury or breach of contract of a like kind relating to the same property or right, or arising out of the same contract; and the Court or a Judge in chambers may grant the injunction, either upon or without terms, as may be just.”

Under this rule, the plaintiff may apply for an interlocutory injunction to restrain the defendant from the repetition or continuance of a wrongful act. In my view, there must be endorsed on the writ of the plaintiff the commission of a wrong which is the cause of an action followed by an interlocutory application. Where an interlocutory application as in the motion before the court below is not based on a substantive relief claimed in the writ of summons, the court lacks jurisdiction to award such injunctive order.

It therefore seems clear to me that grounds 2 and 12 of the grounds of appeal which complain that the learned Judge has no jurisdiction to make an order not related to the cause of action are arguable points of law demonstrating that substantial reasons which would warrant the grant of stay of execution clearly exist.

Learned Counsel for the respondents submitted that it is not in every case where the grounds of appeal raise an arguable point of law that a stay will be granted. He submitted further that the grounds of appeal flied must be tested under a microscopic mirror to determine if the application for a stay of execution is not merely a ruse to delay the enjoyment of the fruits of the judgment by the respondents. Learned Counsel cited in support the cases of:-

Nigerian Army v. Mowarim (1992) 4 NWLR (Pt.233) 345, 335 A-F.

Kenon v. Tekam (1989) 5 NWLR (Pt.121) 336, 373.

That may be so; I do not think the statement can be seriously disputed.

In Agba v. Okogbue (1988) 4 NWLR (Pt.91) 747, I observed at page 753 G-H as follows:-

“It must be clearly borne in mind that a stay of execution is never granted as a matter of course because section 18 of the Court of Appeal Act, 1976, enacts that an appeal under part 2 of the Act shall not operate as a stay of execution. The grounds of appeal filed against the judgment must therefore be tested under a microscopic mirror if the application is not a ruse to delay the enjoyment of the fruits of the judgment by the respondent. In so doing, it is wrong to suggest that a court is acting as if it is hearing an appeal because it has pointed out the absurdity of a ground of appeal in considering whether it is prima facie an arguable ground”.

Similarly, in considering whether a stay of execution should be granted pending appeal the chances of the applicants’ success on appeal must weigh heavily on the court having regard to the strength of the grounds of appeal. In so doing, it is proper to bear in mind that a substantial and arguable ground of law on appeal is a collateral circumstance worthy of consideration in deciding whether to grant a stay of execution or not.

In Martins v. Nicanner Food Co. Ltd. (1988) 2 NWLR (Pt.74) 75 Nnamani J.S.C. observed at page 83 G-H as follows:-

“The court’s discretion to grant stay of execution must be exercised judiciously and it would be so exercised where it is shown that the appeal involves substantial points of law necessitating the parties and issue being in status quo until the legal issues are resolved-

It is clear that this Court would consider granting a stay of execution where as Coker J.S.C. put it (in) Vaswani’s case “the grounds of appeal filed do raise vital issues of law and there are substantial issues to be argued on them as they are.”

The late Justice of the Supreme Court observed further at page 83/84 that:-

“I am not unaware of the decision of this Court in which the scope of this case appears to have been restricted. This is Okafor v. Nnaife (1987) 4 NWLR (Pt.64), 129. With all respect, I think this court was swayed in the Naife case by the facts of that case which involved continuous acts of trespass. In a case in which a substantial point of law, such as on jurisdiction, does arise Balogun’s case would still have full force.”

I have dealt at length with the question of the grounds of appeal filed suggesting that substantial grounds of appeal are to be decided to warrant the grant of a stay of execution having regard to the various views of the Supreme Court in Balogun v. Balogun, Okafor v. Nnafie, Martins v. Nicannar, Agbaje v. Adelekan (1990) 7 NWLR (Pt. 164) 595 and Odofin v. Agu, which is that latest in the series. In referring to the dicta of Coker J.S.C. in Balogun v. Balogun Nnaemeka-Agu J.S.C. said at page 611 of Agbaje v. Adelekan thus:-

“This gives the false impression that once an appellant raises a serious and recondite issue of law in his grounds of appeal, then he is, ipso facto, entitled to a stay of execution. But it has long been recognised that it is not every point of law raised in an appeal that could constitute a special circumstance for purpose of a stay of execution.”

The distinction which I think should not be overlooked when dealing with special circumstance for purposes of a stay of execution is that a serious and recondite issue of law raised in the ground of appeal whereby a court grants to a party a relief which he did not seek qualifies for a special circumstance whereas a ground of appeal which is not substantial or recondite cannot be elevated to a special circumstance.

In Odofin v. Agu, Nnaemeka-Agu J.S.C. while dealing with the court awarding a relief not claimed on the writ says that:-

“This will be an order made without jurisdiction and therefore a nullity”.

In my judgment, such serious and recondite issue of law entitles the applicant to a stay of execution. Further, Nnamani J.S.C. in Martins v. Nicannar which I have earlier referred to said at page 84 that:-

“I think this court was swayed in the Nnaife case by the facts of that case which involved continuous acts of trespass. In a case in which a substantial point of law, such as on jurisdiction, does arise Balogun’s case would still have full force.”

It therefore follows that an issue of law raised in the ground without more does not ipso facto entitle an applicant to have a stay of execution pending appeal while a substantial point of law as on jurisdiction will entitle the applicant to a stay of execution.

I see, however, with the greatest respect, a divergence of opinion in the views expressed by some of their Lordships of the Supreme Court on this very important area of the law particularly the categorical assertion by Nnaemeka-Agu in Agbaje v. Adelekan with respect to the weight of authority of Balogun v. Balogun and Oputa J.S.C. in Okafor v. Nnaife.

However, Nnamani J.S.C. accords Balogun v. Balogun which has been followed for over two decades before Nnaife and Agbaje were decided the full weight of its authority. I dare say that there is bound to be some confusion in the minds of the courts below when all these authorities are placed side by side and the problem of which one to follow arises.

I am of the firm view that the grounds of appeal flied in this case which learned counsel for the applicants has referred to show very clearly that the grounds raise serious and substantial issues of law, such as on jurisdiction, to be decided on appeal where either side may have a decision in his favour. Such substantial issue of law will in my judgment qualify as special circumstance which would warrant the grant of a stay of execution.

(2) second contention of Mr. Femi Okunnu is contained in paragraph 39 of the affidavit of Yekini Adenle and grounds 1 and 11 of the grounds of appeal. The order of injunction which restrained the Applicants by themselves or by their servants, agents, privies and assigns from further parading themselves as the Executive Committee of the Alayabiagba Market Association pending the final determination of the suit and from collecting rents and other charges from traders in the market until the applicants shall have rendered an account of money so far collected on behalf of the association has the practical effect of putting an end to the action.

At the stage of this application for stay of execution, the court is not hearing the appeal but in order to show that there is a serious and substantial issue of law to be determine on appeal. I am still firmly of the opinion that the grounds of appeal filed against the judgment must be tested under a microscopic mirror. In so doing, the court must find out whether the application is a ruse to delay the enjoyment of the fruits of the judgment by the respondents or whether the applicants have put forward special or exceptional circumstances in the nature of substantial and weighty arguable points of law to warrant the grant of a stay of execution.

In Coyne v. Global Natural Resources Plc (1984) 1 All E.R. 225, a case similar to the one in hand the court observed at page 233 c-d as follows:-

“The question, it seems to me, is: should the court exercise its discretion bearing in mind all the circumstances of the case, when to decide in favour of the plaintiffs would mean giving them judgment in the case against Global without permitting Global the right of trial. As stated that way, it seems to me that that would be doing injustice to the defendants”.

In my view, the grounds of appeal to which reference has been made which complain that the learned Judge erred in law in granting the injunction sought which finally decided the contest between the parties summarily without permitting the applicants the right of trial raise substantial and serious issues of law as would warrant an interference with the Ruling of Adeniji J. pending the determination of appeal.

(See Lawrence David Limited v. Ashton (1991) 1 All E.R 385 at p. 395; NWL Ltd. v. Woods (1979) 3 All E.R. 614 at 626 a-b per Lord Diplock).

As it is usual from experience in this court, when an interlocutory injunction has been granted in the court below, it takes some time, over three to five years, before the appeal against such interlocutory injunction is disposed off. The action in the court below may take a longer time to be concluded. The order of injunction continues in operation to the embarrassment of the court. In such circumstance, this court may properly go on to consider the prospects of the plaintiffs succeeding in the action. Another way of reaching the same conclusion is to say that the defendants may suffer damage if the injunction is wrongly granted which is uncompensatable by the plaintiffs and therefore it becomes necessary to consider the relative strength of the applicants’ case. (See page 396 a-c Lawrence David Ltd. v. Ashton (supra).

I think that upon the basis of the strength of the applicants application, this is a proper case in which the orders of interlocutory injunction should be stayed.

(3)The next issue for consideration which has been strongly canvassed by Mr. Femi Okunnu for stay of execution of the orders of injunction is the locus standi of the respondents as contained in ground 10 of the grounds of appeal. The affidavit of Yekini Adenle deposed positively that the applicants represent over 20,000 members of the market association while the respondents claim to represent 43 traders. Learned counsel contended that the respondents have no interest in the subject matter of the dispute. Coupled with this fact is the summary of the deposition in the applicants’ affidavits which have not been challenged or controverted by the respondents.

These depositions are:-

(1) The Alayabiagba Market was established, maintained and regulated by the predecessors of the Ojo Local Government Council since 1965.

(2) The superintendence of the Market and the collection of the stallage fees therein come directly under the authority of the Ojo Local Government Council.

(3) That the demolition and the reconstruction of the stalls at the Alayabiagba Market come under the constitutional functions of the Ojo Local Government Council.

(4) That as a result of the interlocutory injunction which restrained the applicants from erecting whether by themselves or by their servants, agents, privies and assigns, the cost of completing the construction of the market will increase every day with the current inflation trend of 100% and will become more astronomical at the conclusion of the trial of this action thereby making completion of the construction of Markets virtually impracticable or impossible.

Mr. Okunnu submitted that where the issue of locus standi of the Plaintiff to bring his action before the Court is challenged, the Court, as well, will not be competent to hear an incompetent plaintiff for then his action would not have been brought upon fulfillment of a condition precedent to the exercise of the Court’s jurisdiction. The learned counsel referred to the case of Green v. Green (1987) 3 NWLR (Pt.61) 480 where Oputa, J.S.C. observed as follows at page 500 d-e:

“A proper Plaintiff should be one who has a right of action, the person who had been wronged.

In Ekpere & Ors. v. Aforije & Ors. (1972) 1 All NLR page 220, the right of action resided in the Jesse clan not in the subordinate community. In Oloriode’s Consolidated cases (1984) 1 S.C. NLR 390, 400, 407; (1984) 15 NSCC at page 286, the right of action resided in the bigger family groups, the Ladega Oyero Family and the Ajai Odofin family. Any judgment or order affecting their right cannot be given or made in their absence.”

(See also Madukolu v. Nkemdilim (1962) 2 SCNLR 341, (1962) 1 All NLR 587 at page 595.

The necessary question to be asked therefore is this:-

If according to law the Alayabiagba Market was established, maintained and regulated by the Local Government Authority and the superintendence of the Market and the collection of the stallage fees come directly under the Local Government Council, what legal interest has the Respondents in the Alayabiagba Market? I bear in mind the advice of Wali J.S.C in Olaniyi v. Aroyehun (1991) 5 NWLR (Pt. 194) 652 at page 692 E-F that whenever we are giving decisions in interlocutory matters, we should not go too far in our expressions and comments so as not to give the impression that we have made up our minds in one way or the other on the substantive appeal but the law is well settled that in order to grant a stay of execution that grounds of appeal must raise serious and substantial issues of law and to find out whether they do or not, as I have earlier stated in this Ruling, such grounds of appeal must be tested under a microscopic mirror whether they indeed raised serious and substantial issues of law.

(4) Finally, learned counsel for the respondents has contended that the balance of convenience weighs heavily in favour of the respondents to necessitate the status quo ante being maintained pending the determination of the appeal. I think that submission has totally overlooked the uncontroverted deposition of Yekini Adenle in para. 22 of the affidavit in support of the motion that as a result of the order of injunction which restrained the applicants, whether by themselves or by their servants, agents, privies and assigns from erecting or further erecting market stalls at the Alayabiagba Market, the cost of completing the construction of the market will increase every day with the current inflation trend of 100% and will become astronomical at the conclusion of the trial thereby making the completion of the construction of the market virtually impracticable or impossible.

In addition to the deposition aforementioned, there are the averments of Eno Bassey referred to earlier that the reconstruction of the market is the constitutional function of the Ojo Local Government and the construction of the market stalls is being executed on behalf and with the authority of the Ojo Local Government Council. These averments have not been denied by the Respondents.

I am of the view that the balance of convenience is in favour of the Applicants as the cost of the reconstruction of the market may have gone beyond 100% and probably impossible to complete the reconstruction at the end of the case. In any event, the reconstruction is not a waste it is an improvement and the Respondents have not deposed to any fact that at the conclusion of the case, irreparable injury will be caused to them if a stay of execution is granted to the Applicants and it turned out that they win the case.

From the foregoing reasons, I am of the opinion that the justice of this case demands that a stay of execution of the Ruling of Adeniji J. made on 13th February, 1992 in Suit No. LD/3072/91 be made.

Accordingly, I hereby order a stay of execution of the Ruling of Adeniji J. dated 13th February, 1992 pending the determination of the appeal lodged against the said Ruling.

The Applicants are awarded N150.00 costs against the Respondents.

Other Citations: (1992)LCN/0140(CA)