Alhaji Razaq Olayinka Bello & Ors. V. Attorney General of Lagos State & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

CLARA BATA OGUNBIYI, J.C.A.

This is an interlocutory appeal against the ruling of the Honourable Justice S. O. Hunponu-Wusu of the High Court of Lagos State, Ikeja Judicial Division. In the said ruling, which was delivered on 10th January, 2002 the learned trial judge refused the application of the appellants for:-

(1) An order of interlocutory injunction restraining the Defendants jointly and severally, their agents, privies, assigns or howsoever from giving effect to the provisions of the Land Use Charge Law No. 11 of 2001 until the determination of the suit and

(2) An order of court referring all questions formulated by the appellants in their originating summons to the Court of Appeal for determination.

Briefly, the genesis of the facts leading to the ruling subject of this appeal dated back to the 2nd August, 2001 when the plaintiffs filed an originating summons at the High Court Registry, Ikeja challenging the validity of the Lagos State Land Use Charge Law. The originating summons was served on the defendants on 7th August, 2001. By the said originating summons, the plaintiff sought inter alia to invalidate the Lagos State Land Use Charge Law on the ground that same violates certain provisions of the 1999 Constitution of the Federal Republic of Nigeria. The plaintiffs also sought an order of perpetual injunction restraining the defendants from implementing provisions of the said law.

Consequent to its ruling delivered on the 10th January, 2002 therefore, the lower court did not only refuse the prayers of the plaintiffs in their entirety but also held their counsel guilty of contempt for publishing a public notice intimating the public of the pending application for interlocutory injunction.

The appellants, irked and being dissatisfied with the said decision of the court, filed notice of appeal dated 23rd and filed on the 24th January 2002. The said notice contained four grounds of appeal. By the leave of this court sought and obtained on the 17th September, 2002, the appellants filed one additional ground of appeal.

In accordance to the rules of this court parties exchanged briefs of arguments with the appellants’ brief dated and filed 11th November 2002, while that of the respondents was also dated and filed on the 3rd December, 2002. On the 16th March, 2006 when the appeal was called up for hearing the appellants counsel was absent. In accordance with Order 6 rule 9(5) of the rules of this court, the appellants said brief was however deemed as having been argued.

The learned respondents’ counsel Mr. A. R. Ipaye on behalf of his clients adopted their brief filed and urged this court to resolve all the issues in their favour and therefore dismiss the appeal in its entirety.

The appellants’ counsel Mr. Ade Sanusi on behalf of his clients distilled three issues for determination from the four original plus the one additional grounds of appeal filed, and same reproduced are as follows:-

1. Was the lower court right to have refused the prayer of the plaintiffs for an order of interlocutory injunction, especially having regard to the fact that the only affidavit evidence before the lower court was that of the plaintiffs, as the defendants did not file any counter affidavit.
2. Whether or not the lower court was right to have refused the prayer of the plaintiffs for reference to the Court of Appeal for determination – certain questions raising substantial constitutional issues.
3. Whether or not the lower court was right to have held contemptuous the publication of the public notice admitted as Exhibit 1.

In the formulation on behalf of the respondents their learned counsel adopted basically the issues as formulated by appellants but with some modifications as follows:-

1. whether the lower court was right to have refused the prayer of the plaintiffs/appellants for an order of interlocutory injunction, when the only affidavit evidence before the court was that of the plaintiffs/appellants.
2. whether the lower court was right to have refused the prayer of the Plaintiffs/Appellants for referral of all issues formulated by them in their originating summons to the Court of Appeal for determination.
3. whether the lower court was right to have held contemptuous the publication of Exhibit 1, a public notice issued by the plaintiffs/appellants.

For the determination of the 1st issue raised, the learned appellant’s counsel re-iterated the fact that the only affidavit before the lower court was that of the plaintiffs, in the absence of the defendants filing any counter affidavit. That it is from affidavit evidence that the court will be able to determine a number of important issues including:-

a) balance of convenience

b) adequacy of damages as compensations for injury.