H.R.H. Alhaji Ibrahim Sulu-gambari & Ors. V. Alhaji Saadu A.O. Bukola (2003)
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PATRICK IBE AMAIZU, J.C.A.
This is an appeal against the ruling of Orilonise J., of the Kwara State High Court, sitting at the Ilorin Division of the court. The ruling was delivered on Wednesday, the 25th day of July, 2001.
The facts which led to the ruling, and also to this appeal so far as they are material to the question which calls for our determination are – the plaintiff in the substantive suit was appointed the Alaboto of Aboto-Oja in July, 1998, in accordance with the custom and tradition of Aboto-Oja.
Following a misunderstanding between him and the Asa Local Government Council which pays his salary, he was given a query.
It was dated 17th August, 2000. He answered the query on the 21st of August, 2000. The Local Government Council was not satisfied with his reply and recommended his removal. He was accordingly removed from office by the Ilorin Emirate Council.
By letter dated 13th November, 2000, the 2nd defendant was appointed to replace him as the Alaboto of Aboto by the 1st defendant.
Following the appointment, he brought an action in the lower court, claiming among other things, a declaration that he is still the Alaboto of Aboto-Oja in Asa Local Government Area. He filed simultaneously a motion on notice praying the court for the following reliefs:-
“1. An order of interlocutory injunction restraining the 1st and 3rd defendants, their agents, privies servants or however called from recognising or installing or performing any act of coronation of 2nd defendant as the Alaboto of Aboto-Oja pending the hearing and determination of the substantive suit.
- An order of interlocutory injunction restraining the 2nd defendant herein Mallam Kasali Yakubu from parading himself, calling or ascribing to himself the title of Alaboto of Aboto-Oja or in any other way holding himself out as Alaboto of Aboto-Oja or in any other way portraying himself as such, pending the hearing and determination of the substantive suit.
- An order of interlocutory mandatory injunction compelling the 1st and 3rd defendants to recognise and treat the plaintiff/applicant herein as Alaboto of Aboto-Oja, Asa Local Government Area, Kwara State pending the hearing and determination of the substantive suit”.
And for such order or other order as this Honourable Court may deem fit to make in the circumstances,
Following a preliminary objection raised by the learned counsel for the respondents, the lower court in a ruling delivered on the 28th February, 2001, after hearing counsel on the objection, stated thus:
“On the plaintiffs’ motion for an order of mandatory injunction to compel the 1st and 3rd defendants to recognise and treat the plaintiff as the Alaboto of Aboto-Oja pending the hearing and determination of the substantive suit, I share Mr. Olomula sentiments that a permanent or mandatory injunction cannot be sought in an interlocutory application or by a notice of motion (sic). That is therefore struck out”.
Thereafter, the lower court heard argument on the two remaining reliefs sought by the plaintiff. In a considered ruling delivered on 25th July, 2001, the court ruled as follow:-
I find from the pleadings, the affidavits and counter affidavits filed in this suit so far that not only is there a serious issue to be tried in the substantive suit but that the applicant has a strong probability of succeeding in his reliefs against the respondents.
For the above reasons therefore the application succeeds in part and is granted as prayed. The 2nd respondent Mallam Kasali Yakubu is restrained from parading himself, calling or ascribing to himself the title of Alaboto of Aboto-Oja or in any way portraying himself out as such pending the determination of the suit.
The respondents were dissatisfied with the above ruling. They lodged an appeal to this court against the ruling. The Ministry of Justice filed a notice of appeal containing four grounds of appeal on behalf of the 1st defendant now the 1st appellant. Two issues were distilled from the said four grounds, namely:-
- Whether the trial court was right in the manner it exercised its discretion in granting an order of interlocutory injunction in favour of the respondent when the action to be restrained has already been completed and more so that the res, i.e., the stool of Alaboto of Aboto-Oja is not a perishable commodity?.
- Whether the trial court was right in pronouncing on the substantive suit when the case has not gone on to trial.
Tunde Olomu, Esq., of counsel, filed a notice of appeal also containing four grounds of appeal on behalf of the 2nd and 3rd defendants, now the 2nd and 3rd appellants?.
He also distilled two issues from the said four grounds of appeal viz:-
- Whether the learned trial Judge can properly grant an order of injunction when the pre-requisite for so doing has not been established.
- Whether the learned trial Judge can validly pronounce in (sic) the success or otherwise of the substantive suit at interlocutory stage.
In reply, to the above, the plaintiff now the respondent also formulated two issues.
I observe that the issues formulated by the learned counsel for the parties are but for the framing and language used similar in contents. I prefer the formulation of issues by the learned counsel for the 1st appellant. I shall consider the appeal on the basis of those issues.
Before then, I observe that the respondent in his brief of argument gave notice of a preliminary objection. It reads:-
2.1 Notice of preliminary objection.
2.2 Notice is hereby given that at the hearing of this appeal the respondent shall raise and argue preliminary objection, the competence of ground one of the 1st appellant’s grounds of appeal contained on page 137 of the record and ground one of the 2nd and 3rd appellants’ grounds of appeal contained on page 134 of the record.
The respondent submits that ground one of each of the two notices of appeal is incompetent and ought to be struck out as each does not constitute a valid ground in civil matter such as this.
For reasons not apparent on the record, neither the counsel for the 1st appellant nor the counsel for the 2nd and 3rd appellants reacted to the said preliminary objection in their respective briefs of argument. I intend notwithstanding their failure to react to the objection, to resolve the issue.
I hereunder reproduce the two grounds of appeal in order to enhance easy reference and a better appreciation of the facts.
Ground one of the first appellant reads:-
The ruling of the learned trial Judge is not justifiable and unreasonable and cannot be supported having regard to the weight of evidence before him.
And, ground one of the 2nd and 3rd appellants reads:-
The ruling of the learned trial Judge is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence before him.
It is the contention of the learned counsel for the respondent that the above two grounds are not grounds cognisable in civil appeals but allowed only in criminal appeal. In that light, the learned counsel further submitted that the two purported omnibus grounds are incompetent and should be struck out. He relied on the following cases:- Aku v. Aneku (1991) 8 NWLR (Pt.209) 280 at 287. Azi v. Registered Trustees of Evangelical Society (1991) 6 NWLR (Pt. 195) 111 Atuye v. Ashamu (1987) 1 NWLR (Pt. 96) 239 at 234.
Finally, the learned counsel submitted that the grounds are vague and do not comply with the provisions of Order 3 rule 2(2) and 4 of the Court of Appeal Rules as no particulars are supplied.
It has to be remembered that in a civil action, the standard of proof is on the preponderance of evidence. Consequently, it is the duty of a party to an action to adduce evidence which ought reasonably to satisfy a court that the facts ought to be proved are established. Union Bank of Nig. Ltd. v. Michael Nnoli (1990) 4 NWLR (Pt. 145) 530. In proving an issue in a civil case therefore, the evidence of both parties to the action shall be put on an imaginary scale and weighed to see where the scale tilts. Mogaji v. Odofin (1974) 4 SC 91.
On the other hand, if the commission of a crime by a party to any proceeding is directly in issue, it must be proved beyond reasonable doubt.
It is because the standard of proof in civil and criminal cases is not the same, that the wordings of omnibus ground of appeal in the two action are also different. In civil cases it is:-
the verdict is unwarranted, unreasonable and cannot be supported having regard to the weight of evidence; while in criminal case, it is, the verdict is unwarranted, unreasonable and cannot be supported having regard to the evidence. I observe that the intendment of the provisions of Order 3 rule 2(2) and (4) of the Court of Appeal Rules, 1981, is simply to furnish the opposing party, i.e., the respondent with enough particulars which would bring home to him the error complained of in a ground of appeal. The omnibus ground is self explanatory and consequently does not require any particulars.
From all I have said, the preliminary objection is frivolous and consequently is over-ruled. I admit that the ground could have been drafted more elegantly and with greater precision. The ground as drafted is in no way vague.
I now deal with the issues. It is a fundamental principle of our legal system for the grant of an application for an injunction that the application will always be granted to support a legal right. In the present application, Mrs. Akinpelu, of counsel, conceded that there is a serious issue to be determined at the trial.
On the other hand, Olomu, Esq., of counsel is of the opinion that the respondent failed in his application to show that he has a legal right that is capable of being protected to warrant the granting of the application.
It is observed that the lower court ruled that the respondent established by his affidavit evidence and his statement of claim that he acquired a legal right to the stool of Alaboto of Aboto-Oja as he was appointed to the stool in July, 1998. In that case, the court was satisfied that that there is a substantial issue of fact and law for determination in the substantive suit as to whether or not the removal of the respondent and the eventual installation of the 2nd appellant were proper.
As I observed earlier, the two sets of appellants filed each, four grounds of appeal.It is trite that when there is an appeal against a judgment of a lower court on a point or an issue, the appeal stands or falls on the point or the issue alone. Any other points or issues not raised or argued still rest as valid. Odiase v. Agho (1972) 3 SC 71.
In the present case, none of the appellants appealed against the decision of the lower court that the respondent has a legal right to be protected. This court will not therefore express an opinion on the matter.
The onus is an applicant for an interlocutory injunction to establish that the balance of convenience is on his side. This is because it is only when the extent of the inconvenience likely to be incurred by one side and by the other is determined that a court will be in a proper position to exercise its discretion to grant the injunction or refuse it.
In the present suit, the respondent averred in his affidavit in support of the application as follows:-
“24. That even if the return to status quo is possible I would have suffered irreparable damage by way of psychological/emotional disturbance and humiliation which cannot be compensated in damages.
- That I am prepared to compensate the defendants in damages if this application is granted and my claims against them are later found to be frivolous.
- That the defendants will not suffer any damage if this application is granted.
- That I will suffer irreparable damages if this application is refused”.
The counter affidavit of the 2nd appellant, on the other hand runs thus:
“25. That all the people of Aboto have never been, and are not in support of the plaintiff.
- That the injuries that the entire Aboto village will suffer cannot be compensated in monetary terms”.
It is to be noted that :-
“(1) The entire Aboto village is not a party in the present case.
(2) There is no averment in the whole of the counter affidavit as to the nature of loss the 2nd appellant would suffer if the application is granted”.
On the other hand, the respondent set out clearly in his affidavit in support of application the inconvenience he will suffer. It has been accepted that the principle upon which a court acts in granting an interlocutory injunction pending the determination of the substantive suit must be strictly observed. A cursory look at the decided case shows that it is impossible to lay down a general rule regulating the exercise of the discretion of the court in all cases. It must however be borne in mind that an interlocutory injunction is not granted as a matter of course.
I am aware that the appellants quoted a number of cases, notably – Joseph Ogundele Ajewole v. Oba E.A. Adetimo & Ors. (1996) 2 NWLR (Pt. 431) 391; Gwarbo Gever & Ors. v. James T. China (1993) 9 NWLR (Pt. 315) 97.
Where the courts refused an application for an interlocutory injunction restraining a party from holding himself out or otherwise acting or parading himself as clan head of his community. In my humble view, before this court can rely on the decisions, it must be shown that the facts of those cases are the same as the facts of the present case. As Aderemi, JCA observed in the case of Owners of the M.V. Fortunate & Ors. v. The Owner of the M. V. African Hyacinth & Ors. (2002) 23 NWLR 172:-
“The exercise of the discretion depends on the facts and circumstance of each case and that in matters of discretion no one case can be an authority for the other …”
In the present case, the suit was initiated because of the interference by the authorities with an acquired right i.e., the stool of Aboto already conferred on the respondent by purporting to remove him for the stool. In the other case, relied upon by the appellants, the question is, who amongst the contesting parties to the stool is qualified to inherit the stool. One of the contestants must naturally win.
Taking every thing into consideration, I agree entirely with part of the ruling of the lower court that:-
“I find the balance of convenience in favour of the applicant and that he cannot be adequately compensated by an award of monetary damages for the loss he would suffer if the 2nd respondent were allowed to continue in office as Alaboto pending the determination of this case”.
The purpose of an interlocutory injunction is to maintain the status quo. Although in the present case, the stool of Aboto-Oja is not a perishable commodity that is capable of being destroyed, consumed, damaged or frittered away before the determination of the substantive suit however, because of the special circumstance of the suit, the observation of Katsina-Alu, JCA, (as he then was) in the case of Gwarbo Gever & Ors. supra is not apposite. This moreso as the facts show that the 2nd appellant had not started to function when the respondent filed his interlocutory application. The exercise of the discretion is titled in favour of the respondent in the present case.
It is the law that a court will generally not grant an injunction to prevent the performance of an act when the act had already been performed. Chief Michael Uwegba & Ors. v. A.-G., Bendel State & Ors. (1986) 1 NWLR (Pt. 16) 303. In the present suit, however, the 2nd appellant was restrained from:-
“parading himself, calling or ascribing to himself the title of Aloboto of Aboto-Oja or in any way portraying himself out as such pending the determination of the suit”.
All the above are, continuous acts. They are not completed acts so they are not caught by the judgment relied upon by the appellants.
Issue one is resolved in favour of the respondent.
On issue 2, the complaint is against the following part of the ruling:-
“I find from the pleadings, the affidavits and counter affidavits filed in this suit so far, that not only is a serious issue to be tried in the substantive suit but that the applicant has a strong probability of succeeding in his reliefs against the respondents”.
It is the submission of counsel for the two appellants that although pleadings have been exchanged by parties, evidence has not been led in support of the averments in the pleadings. Mrs. Akinpelu, of counsel, submitted that:-
“Although it is the practice of the court in an application of this nature to determine whether to grant or refuse the application for interlocutory injunction – this however does not extend to the examination of pleadings, as to form opinion on which party is likely to succeed in the substantive matter pending before it”.
Olomu, Esq., of counsel, contended that:-
“It is much conceded that in determination whether to grant an injunction, the court will have to look at some aspects of the substantive suit, because a refuse (sic) to do so will severely restrict the compass of vision of the court, but the court should not pronounce on the substantive suit”.
The question is, did the lower court pronounce on the substantive suit? To answer the question one has to examine the history of applications for interlocutory injunction.
It is trite that the principles governing the grant of interlocutory injunction are well settled. Unfortunately, however, statement and restatement of those principles have in some cases been in forms which have created confusion. This fact is brought out clearly in the observation of:
Lord Diplock in the case of American Cyanamid v. Ethicon Ltd. (1975) AC 396 at 407. The observation runs thus:-
” … the use of such expression as a probability, prima facie case or a strong prima facie case in the con of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object to be achieved by this form of temporary relief”.
The court no doubt must be satisfied that the claim is not frivolous or vexatious, in other words, that there is a serious question to be tried.
It is, in the light of the above that the proposition now in an application for a grant of an interlocutory injunction is that an applicant must show that there is a serious questions to be tried in the substantive suit. This is my view, necessarily, in some cases involve an examination and consideration of pleadings. I therefore agree entirely with the submission of the learned counsel for the respondent that the part of ruling quoted above only means that the applicant ‘shows a prima case and no more’.
Relief 2 is resolved in favour of the respondents. In the result, the appeal fails and is accordingly dismissed. Each appellant is to pay the respondent N2,000.00.
Other Citations: (2003)LCN/1358(CA)