Obidiegwu Onyesoh V. Nze Christopher Nnebedun & Ors. (1992) LLJR-SC

Obidiegwu Onyesoh V. Nze Christopher Nnebedun & Ors. (1992)

LawGlobal-Hub Lead Judgment Report

G. KARIBI-WHYTE, J.S.C

On the 10th April, 1989 the Court below in a unanimous judgment dismissed the appeal of the Appellants from a ruling of Obiesie J, of May 5, 1988 granting plaintiffs an interlocutory injunction restraining the appellant from being crowned as the Eze Nri. This is an appeal against that decision.

The litigation arose in this way. Plaintiffs and the Defendant all belong to Nri Town. Plaintiffs in their affidavit in support of their application ex parte to restrain the appellant from being crowned the Eze Nri, dated 9/2/88 claim to be representing Akamkpisi Village, one of the six villages constituting the Nri Town. It was deposed in the affidavit that the Nri custom is that the selection of the Eze Nri is the responsibility of all the constituent villages. That the Adamas who are the only Kingmakers and who only can crown the Eze Nri, are of Akamkpisi village. It was also deposed that it was against Nri custom for only three of the six constituent villages, without concurrence of the others, to arrogate to themselves the right and power to select, install and crown the Eze Nri. The Adamas have not been consulted and have not consented to the crowning of the Appellant.

On the same date as the ex parte motion, plaintiffs had earlier filed a writ of summons claiming from the Defendant the following reliefs.

1. A declaration that Nri town is made up of six villages.
2. A declaration that the six villages which include the plaintiffs have to give their consent before the enthronement of any person from Nri as the Eze or Igwe of Nri.
3. An order of injunction “restraining the defendant, his privies and supporters from presenting himself for installation and/or coronation or installing or crowning the defendant the Eze or Igwe of Nri without the consent or consensus of the plaintiffs given in writing or in a customary way in a public gathering or meeting.

The Defendant whose selection had been made more than a year previously was scheduled to be crowned on the 20th February, 1988. The motion ex parte filed on the 9th February, 1988 was fixed for hearing on the 17th February, 1988.

Obiesie J granted the application and made the following order.

“… the defendant be and is hereby restrained from presenting or getting himself crowned or installed as the Eze or Igwe of Nri on the 20th day of February 1988 or any other day until final determination of Motion on Notice for interim injunction.

It is also ordered that 7 days be granted the defendant within which to apply to discharge the order with effect from the date of service of the Order.”

Respondents who are the Appellants before us were by this Order put on notice with liberty to apply to discharge the order. It is interesting to observe that the ex parte application was filed on the 9th February. It was then known that the event sought to be restrained was fixed for the 20th February, yet the application for injunction ex-parte was fixed to be heard on the 17th February, thus leaving no time for service on the Respondent or for him to apply for its discharge. Indeed. Obiesie J. subsequent to the grant of the ex parte application fixed hearing of the motion of the interlocutory application for the 14th March. 1988.

This court has advised High Court Judges that applications of this nature should be made, on notice to the party who would be affected from the order to be made. They should not be designed to create embarrassment or deliberate inconvenience. In this regard it is not only irregular and unfair, it is indiscrete to fix the hearing of the motion so close to the event sought to be restrained. In the instant case the date of the event sought to be restrained had been known, well ahead before the institution of the action. There was therefore no real urgency on the part of the parties to proceed by way of an ex parte application.

The order for interim injunction obtained ex parte was served on the defendant on the 19th February. He therefore brought an application to discharge the order pursuant to Order 3 rules 5, 7, 11 and 17 of the. High Court Rules of Anambra State. He also asked for accelerated hearing of the substantive suit brought by the plaintiffs. Obiesie J on March 1st, 1988 refused the application, but granted the prayer for accelerated hearing of the substantive suit. The Motion by the plaintiffs on Notice to the Defendant for an order of interlocutory injunction pending the determination of the substantive suit was argued on the 28th March, 1988. Obiesie J delivered his ruling on the 12th May, 1988 and granted the injunction sought. Defendant thereupon appealed to the Court below.

Six grounds of appeal were filed against the judgment. Three issues for determination were formulated from these grounds.

The issues are as follows:-

“(i) Having ordered accelerated hearing of the substantive suit on 14/3/88 was the trial judge right to have proceeded to grant the interim injunction, without necessarily making findings which will prejudge issues in the substantive suit.

(ii) Since the affidavit evidence was voluminous and irreconcilably in conflict was the trial judge rights not to have called oral evidence to enable him accredit one part and discredit the other.

(iii) Did the trial court exercise his discretion judicially and judiciously considering the affidavit evidence on the principles of law in the grant or refusal of an interim injunction.”

The Court of Appeal dismissed the appeal of the Appellants. It held that the trial judge was right in his view that the gravamen of the application was the preservation of the res. This is the restraining by injunction the public ceremony to crown the Appellant as Eze or Igwe of Nri. The court below referred to the depositions in the affidavits of the parties and held that it was only necessary for the learned judge to have ascertained whether plaintiffs established an arguable case that they have right to be part of the selection process of an Eze or Igwe of Nri.

After pointing out that the learned judges set out mainly to protect the res, i.e. the public ceremony to crown the Defendant, and that unless restrained, the judgment in the substantive suit even if in favour of plaintiffs will be rendered nugatory. This is because the substantive actionincludes a relief restraining the Defendant from being crowned Eze or Igwe of Nri. The court referred to the contention of the Defendant that the process of his emergence as Eze Nri had been completed and that the only aspect remaining was his formal presentation to the community assembled for the purpose. This learned counsel described as a “public gesture. ”

Agreeing with the contrary opinion of the learned judge of the High Court, the Court of Appeal said, per Oguntade JCA, at p,I69,

“It seems to me that it is the formal presentation to the public that can be described as the true crowning or installation. This is when the public are told that an Eze Nri who they must acknowledge and pay obeisance to has emerged. It is in my view the very essence of the whole affair. It was this aspect that the plaintiffs had sought to stop by their action.”

The learned Justice of the Court of Appeal stated at pp,169-170 that the learned judge fully appreciated that the plaintiffs by their application were only seeking “to protect the res or subject matter of their suit from extinction,” He held that the learned judge came to the right decision. Oguntade JCA relied on Kigo (Nig) Ltd v. Holman Bros. (Nig) Ltd & Anor (1980) 5-7 SC.60, 70-71 and Vaswani Trading Co. Ltd. v. Savalakh & Co. (1972) 12 S.C, 77 at p.82 for the opinion. He then referred to the three factors which a court of trial confronted with an application of this nature should take into consideration.

These are that

(a) the substantive action is not frivolous.

(b) the balance of convenience is weighted more in the restraining order than its refusal,

(c) to preserve the res and avoid rendering the decision of the court in the substantive action nugatory.

The Court below held that the substantive suit was not frivolous. The defendant who had fully performed all the customary rites precedent to his public enthronement as Eze Nri, will stand to lose nothing if he was now restrained pending the determination of the substantive suit.

The Court below dismissed the complaint that it was wrong to grant the interlocutory injunction in the face of the order for accelerated hearing of the substantive action. The interlocutory injunction was granted to preserve the res, which could have been destroyed by crowning the defendant before the determination of the substantive suit.

The Court below referred to the issue of undertaking in damages not considered by the judge in the High Court. It was observed that although the plaintiffs in their affidavit deposed to the fact they were willing to give undertaking in damages to any amount, there was no appeal to the Court of Appeal on that issue. The Court of Appeal held that on the facts the need to extract an undertaking in damages did not arise.

This is the judgment before us. Appellant has filed four grounds of appeal alleging various errors of law. The grounds of appeal excluding particulars are as follows:-

(a) “Error in Law; The learned Justices of the Court of Appeal erred in law, and misdirected themselves when they upheld the erroneous exercise of discretion of the learned trial judge in granting the application for interlocutory injunction when the plaintiffs applicants did not show “the existence of a legal right a threatened infringement of such right” Judging from the copious documentary exhibits and affidavit evidence before them which the Court of first instance refused to examine, let alone resolve but found that the RES must be preserved and occasioned a miscarriage of justice,

(b) Error in Law: The learned Justices of the Court of Appeal erred in law and misdirected themselves on the principles governing the grant of interlocutory injunction when they held as follows.”

The defendant contended that the process of his emergence as EZE NRI had been completed and the only aspect that remained was a formal presentation to his subjects, Obviously the defendant did not see this as the installation proper for it was according to him a “public gesture,” The lower court thought otherwise and I agree with it ……………… It is in my view the very essence of the whole affair It was this aspect that the plaintiffs sought to stop by their action.”

and came to a wrong decision contrary to their decided cases on similar Chieftaincy cases occasioning a miscarriage of Justice.

(c) Error in Law:- The learned Justices of the Court of Appeal erred in law when they held as follows:-

“When, as happened in this case an Appeal Court is called upon to intervene, the Court of Appeal would decide whether or not the High Court appreciated the true issues only by reference to what the lower Court said in the ruling appealed against” (Italics mine)

and came to a wrong decision occasioning a miscarriage of justice.

(d) Error in Law: The teamed Justices of the Court of Appeal erred in law when they held that “the circumstances of this case are not deserving of any undertaking in damages” and came to a wrong decision occasioning a miscarriage of justice in not setting aside the Order of injunction under Section 16 of the Court of Appeal Act even if not specifically requested in the ground of appeal”

Learned Counsel to the parties filed and exchanged their briefs of argument. The Learned Counsel to the appellant formulated four issues for determination as against four by learned counsel to the respondents. Since there are differences in the issues formulated, I consider it necessary to reproduce the two formulations.

Appellant’s formulation of issues for determination as arising from the grounds of appeal are as follows:-

“(i) Were the learned Justices of the Court of Appeal right in holding that in considering the appeal they are confined only to what the lower court said in the ruling appealed against

(ii) Were the learned Justices of the Court of Appeal right in upholding a ruling where one of the grounds of Appeal is that the learned trial judge exercised his discretion wrongly when the law and principles for grant of interim injunction are not applicable and a fortiori, when one of their concurring Justices conceded “that the procedure for granting such relief was not followed or even adverted to by thelearned Judge”

(iii) Were the learned Justices of the Court ‘of Appeal right in not allowing the applicants appeal when it is obvious that the ex-parte order and interlocutory injunction were incompetent in the absence of an affidavit of urgency and undertaking in damages – two issues promptly raised in the court of trial- when they have the power by the combined effect of section 16 of the Court of Appeal Act and Order 1 r.20(5) Court of Appeal Rules 1981.

(iv) Were the learned Justices of the Court of Appeal right in not looking at the statement of defence and applicant’s Exhibit “C” attached to his counter affidavit in order to satisfy themselves about the existence and threatened infringement of the plaintiffs/respondents’ “rights” if any to warrant an order of interlocutory injunction in view of section 13(3) of Traditional Rulers Law of Anambra State 1981.”

On his part learned Counsel to the respondent formulated the following issues.

“(1) Whether the Court of Appeal was right in upholding the Ruling of the High Court-granting the interim injunction and consequently dismissing the Appellant’s appeal.

(2) Whether on the affidavit evidence the respondents established ‘a serious question of law to be tried’ or ‘a prima facie case’ as required by law before the grant of the interim injunction and the consequent upholding of same by the Court of Appeal

(3) Whether there was a res to be preserved under the circumstances.

(4) Whether an appeal court could interfere with the exercise of discretion that was not shown to have been done mala fide.”

We have stated it several times in this court that the issues for determination must be formulated from the errors complained of in the grounds of appeal. These errors of law or facts alleged in the grounds of appeal are therefore the only issues for determination before the court. Hence the formulation of the issues must be circumscribed by the grounds of appeal and contain only such issues as have been raised.

The four grounds of appeal before us raise issues of wrong exercise of discretion, wrong application of the law governing the grant of applications for interlocutory injunctions, error in law by failing to extract undertaking in damages.

The main complaint of the appellants is that the court below dismissed his appeal against the grant by the learned judge of the plaintiff’s application for interlocutory injunction. The issues for determination formulated should therefore be confined to the grounds of error alleged. In this regard, the issues formulated by learned counsel to the Respondents are not more appropriate for the determination of this appeal. For instance, it is not easy to see how the third and fourth issues arise from the grounds of appeal. The grounds of appeal neither complained of bad faith in the exercise of discretion nor was the question of the preservation of the res specifically challenged. The two formulations may be combined for a better formulation of the issues as follows:-

(1) Whether the Court of Appeal was right in upholding the Ruling of the High Court granting the interim injunction and consequently dismissing the appellant’s appeal.

(2) Whether the learned Justices of the Court of Appeal were right in not allowing the applicant’s appeal when it is obvious that the ex parte order and interlocutory injunction were incompetent in the absence of an affidavit of urgency and undertaking in damages.

(3) Whether the learned Justices of the Court of Appeal were right in not looking at the statement of defence and applicant’s Exhibit C attached to his counter affidavit in order to satisfy themselves about the existence and threatened infringement of the Plaintiffs/Respondents “rights” if any to warrant an order of interlocutory injunction in view of section 13(3) of Traditional Rulers Law of Anambra State, 1981.

Since the Court below has not interfered with the exercise by the learned Judge of his discretion, the issue is not whether they ought to have interfered, but, whether there was any basis for interference. This is an ancillary issue to whether the Court of Appeal was right in upholding the Ruling of the learned Judge. I shall now adopt the issues herein formulated in this judgment.

It is convenient for the purposes of this appeal to consider the first and third issues together. This is because the arguments of counsel in their briefs and submissions before us are in that order.

The main thrust of the argument of Chief Umeadi, SAN for the appellants was based on the well settled principle that “Courts will only grant an interim injunction to support a legal right.” He therefore submitted that the respondents have no legal rights which the court can protect by injunction or locus standi to institute the substantive action.

Chief Umeadi, SAN referred to the principles governing the grant of interlocutory injunction and submitted that the trial judge has failed to observe the principles. They are that an interlocutory injunction should not be granted.

(i) When the matter in issue can only be decided on resolving conflicting affidavit evidence, especially after the court had ordered accelerated hearing – John Holt Ltd. v. John Holt African Workers Union (1963) 2 SCNLR 383, (1963) 1 All NLR 379.

(ii) Applicant must show the existence of a threatened right and a breach of same, Ladunni v. Kukoyi (1972) 3 SC 31.

(iii) There is need to consider the rights of the parties and their protection especially when a defendant is being prevented from exercising his legal rights and the Court of Appeal says he suffers no damages – Obeya Memorial Hospital v. A-G of the Federation (1987) 3 NWLR Pt.60, 325; Governor of Lagos State v. Ojukwu (1986).1 NWLR (Pt.18) 621.

An exercise of discretion must be based on accepted and recognized principles and of course relevant law, especially Sec. 13(3) of Traditional Rulers Law 1981 of Anambra State. Adejumo v. Ayanteghe (1989) 3 NWLR (Pt.110) 417; Jammal Engineering Co. Ltd v. MISR Nigeria Ltd (1972) 1 All NLR (Pt.l) 322.

It was submitted that the exercise of appellate powers involved a rehearing of the case. The Court of Appeal was bound by virtue of section 16 of the Court of Appeal Act 1976 and Order I Rule 20(5) of its Rules 1981 to consider the whole case including the statement of claim and particularly the statement of defence where the applicant specifically pleaded that respondents cannot claim contrary to Nri custom as contained in Exhibit C.

Learned counsel submitted that the Court of Appeal should not have confined itself to the dictum of the learned judge when they ought to see from the newspaper publication and petitions to Government in January 1988 that the coronation process began since January. The Court of Appeal, it was argued cannot support the statement of the learned trial judge that the purpose of an interim injunction is to restore the status quo -NUPENG V. NLC (1986) 3 NWLR (Pt.31) 647.

I should like to restate the real issue in dispute between the parties before considering the judgment of the Court of Appeal.

The real dispute between the parties is disclosed from the relief claimed in the substantive action challenging the validity of the selection of the defendant as the Eze Nri, of Nri town, on the grounds that they have a right to be consulted, but have not been consulted. They are also seeking injunction restraining the crowning of the defendant. The interim injunction granted was to remain until the determination of the action. It is of crucial importance to bear in mind that the substantive action to determine the validity of the defendants selection as Eze Nri and whether or not a permanent injunction ought to be granted is still to be decided. This was the position when the ex parte application for interim and interlocutory injunctions were made and granted. The appeal before us is that the Court below was wrong to have affirmed the ruling of the High Court granting the injunction.

Now, the principles governing the grant of interlocutory injunctions as is the case before us, have been stated with uncanny clarity in several decisions of this court. It is unnecessary to cite the cases. The law is that an injunction can only be granted to support a legal right. See Commissioner for Works (Benue State) v. Devcon Ltd. (1988) 3 NWLR (Pt.83) 407 and will be refused where no prima facie of a legal right to the matter ought to be restrained has been established. See Ladunni v. Kukoyi (1972) 3 S.C. 31; Egbe v, Onogun (1972) 1 All (Pt.1) NLR 95. The remedy by interlocutory injunction as its name implies is temporary. Being an equitable remedy it is also discretionary. Hence the central objective of the court granting an interlocutory injunction is to exercise its discretion to keep the parties in status quo pending the determination of the substantive action. Hence the basis of the decision to grant the application is that the court has before it a substantive action seeking for the determination of the issue subject matter of the application. That the applicant has shown from the affidavit in support of his application that there is a prima facie case that there is a genuine dispute between the parties to be determined before the Court. It has always been a strong ground in favour of an applicant to show that the conduct of the respondent is unjustified and that applicant cannot be satisfactorily or adequately compensated in damages.

Our Courts have never refused an application for interlocutory injunction because applicant was unable to show a prospect of obtaining a permanent injunction at the end of the trial. This is because the interlocutory injunction merely seeks to maintain the position of the parties, till the determination of the substantive action. It is only sufficient for applicant to show that there is a serious question between the parties to be tried at the hearing.

It is convenient to consider the first three issues for determination together. Chief Umeadi SAN for the appellants has criticised the Court of Appeal for relying only on the statement of the High Court in determining the question whether the grant of the interlocutory injunction by the High Court was right. He contended that the Court of Appeal should have looked at the affidavit of the parties, and particularly Exhibit C attached to respondent’s affidavit. I do not think this criticism is fair. It is also advocating a completely novel and wrong approach to the determination of whether an applicant has made a prima facie case to enable the court grant the application.

In agreeing with the ruling of the High Court Judge, the Court of Appeal held that applicants in the High Court had in their affidavit claimed that they were entitled to be consulted and indeed have customary role to play in the selection and installation of the Eze or Igwe Nri of Nri (ii) they were denied the opportunity to exercise such rights (iii) that the defendant was therefore not validly selected (iv) they would suffer irreparable damage if defendant was not restrained by injunction from being crowned the Eze or Igwe of Nri before the determination of the substantive action.

The Court of Appeal also observed that the affidavit of the defendant deposed that (a) Plaintiff/Applicants/Respondent had no role to play in the appointment and to installation of Defendant/Respondents/Appellants as the Eze or Igwe of Nri (b) that the Defendant’s selection has been made, and only the public part of the installation remained. This is in substance the depositions by the parties in their affidavit. It is on this evidence that the learned Judge decided the application.

There is no doubt that looking at the reliefs claimed in the writ of summons in the substantive action, and the depositions in the affidavit in support of the application, applicants are asserting the existence of a right to a say in the selection and installation of the defendant. The defendant is on his part denying the existence of the right. There is therefore an issue between the parties as to the validity of the selection of the defendant, and the right of plaintiffs to have a say in the crowning of the defendant. It stands to reason therefore that whilst this issue remains unsettled, the parties should remain in status quo.

I think this was why the Court of Appeal in supporting the ruling of the High Court, said,

“If the lower court viewed the matter as one solely for the grant of an interim injunction in the ordinary way, it would have had to ascertain whether the plaintiffs (as applicants) have established an arguable case that they had a right to be part of the selection process of an Eze or Igwe of Nri. In that duty, the lower court would have needed to examine the relevant depositions on the affidavit evidence before it and decide which to accept. If such affidavit evidence was irreconciliably in conflict the need to call oral evidence to resolve it would have arisen. The lower court did not do this and this I believe is why Chief Umeadi learned SAN, for appellant contended that the conflicts on the affidavit evidence were unresolved citing in support the cases of Falobi v. Falobi (1976) 9-10 S.C.1 and Olu-Ibukun v Olu-Ibukun (1974) 2 S.C. 41 at 48”

I accept the reasoning of the court below that in granting an interlocutory injunction, the High Court was under a duty to examine the affidavits of the applicant and the respondent. But this he does to ascertain whether the applicant has on the affidavits and reliefs claimed established a prima facie case. That is that the evidence must disclose that he has a right which ought to be protected. That there is a serious question between the parties to be tried.

The Court of Appeal was in error in the observation that there is any need at this stage to resolve conflicting depositions in the affidavits. This is a function reserved for the ultimate resolution of the issue between the parties. At this stage it is merely sought to preserve the Res, subject matter of the dispute from being destroyed if not restrained, pending determination of the case. The word “interlocutory” is self explanatory. It means injunction granted after contest between the parties before the determination of the substantive action.

I agree that in the exercise of its discretion in granting an interlocutory injunction, the approaches adopted have resulted in some confusion. In those cases, as in the instant case, where the legal rights of the parties depend on the facts in dispute, the evidence before the court at the hearing of the interlocutory injunction is still incomplete. There can therefore not at this stage be a proper evaluation on the evidence that the substantive application is bound to succeed. It is therefore necessary to come to a decision to preserve the subject matter. In so doing effort must be made not to decide the substantive action. The current trend shies away from the practice supported by some old cases, to grant the application where applicant shows “a probability” that he is entitled to the relief, as in Preston v. Luck (1884) 27 Ch. D. 497,506, per Cotton U, or a strong prima facie case that the right which he seeks to protect in fact exists – See Smith v. Grigg Ltd. (1924) 1 KB, at 659 per Atkin LJ. There were cases like Jones v. Pacaya Rubber and Produce Co. Ltd. (1911) I KB, 445 at 457 where Buckley LJ indicated the less onerous criterion of establishing that there is “certainly a case to be tried.” These are all approaches to the exercise of discretion by the Judge.

In Donmar Productions Ltd. v. Bart (1967) 2 All ER.338 at 339, Ungoed Thomas. J, considered all these approaches and attempted a reconciliation of the differing approaches. I think it is indeed appropriate to observe that whilst the requirement of the plaintiff establishing a right or a strong prima facie case is not so much a matter of discretion as it is a matter of law, the lesser burden of showing an arguable case is clearly a matter within discretion of the court. Of course, until the applicant establishes a legal right or a prima facie case, the question of an arguable case does not arise.

In the American Cyanamid v. Ethicon (1975) 1 All ER.510, the House of Lords disapproved of the use of such expressions as “a probability” “a prima facie case” or “a strong prima facie case” in the con of the exercise of discretionary power to grant an interlocutory injunction. Their Lordships observed that it leads to confusion as to the object sought to be achieved by the form of temporary relief. The more liberal basis now is that the court must be satisfied that the claim is not frivolous or vexatious. In other words, that there is a serious question to be tried.

There is on doubt on the affidavit evidence before the court as Dr. Ejike-Ume rightly submitted, applicants clearly satisfied both the requirement of the existence of a legal right, and that there is a serious question to be tried.

I must advert to the reasoning of the Court below that the High Court was more concerned with and set out mainly for the preservation of the res, which was the subject matter of the action. Whilst it cannot be disputed that the preservation of the res, that is ensuring that the vacant position of Eze or Igwe Nri was not filled by the defendant, the applicant must establish the right to bring the application. I agree that the application for interim injunction to restrain the defendant from being crowned the Eze or Igwe Nri was as effective as an order for the preservation of the res. All that applicants sought was to stop the defendant from being crowned.

The order effectively achieved that purpose.

In Kotoye v. Central Bank (1989) 1 NWLR (Pt.98) 419; (1989) 2 SCNJ 31, this Court restated some but not all the principles governing the grant of interlocutory injunctions. It was stated that the following factors should be taken into account.

These are:-

I. The strength of the applicant’s case in the substantive suit, and that there is a serious issue to be tried – See Obeya Memorial Specialist Hospital v. Attorney-General for the Federation (1987) 3 (Pt.60) NWLR 325 at p.340.

2. That the balance of convenience is on the side of the applicant. The onus of proof of which is on the applicant – See Missini & Ors. v. Balogun (1968) 1 All NLR. 318.
3. That monetary damages will not be an adequate compensation for the injury resulting from the violation of his right if he succeeds in the action.
4. That the conduct of the parties is a relevant factor.

Implicit in the conditions laid down are the essential requirement that the evidence must disclose that applicant has a legal right to bring the substantive action on which the application is based and that he has established a prima facie right to the injunction – See Ladunni v. Kukoyi (supra); Ojukwu v. Governor of Lagos State (1986) 3 NWLR (Pt.26) 39.

I am satisfied that the Court of Appeal was right to hold that on the evidence before the learned judge the Plaintiff’s case cannot be said to be frivolous. In so holding the Court of Appeal observed as follows – at p. 171.

“It was the contention of the defendant that he had fully performed all the customary rites precedent to his public enthronement as Eze Nri. I do not see what he stands to lose if he waits for the substantive case to be decided before he meets the subjects which is an act of mere “public gesture” according to the defendant himself. If on the other hand, the defendant is not restrained, and the plaintiffs succeed in their claim, the judgment of the court would be nugatory and worthless. The consideration of balance of convenience enjoins the lower court to restrain the defendant/appellant.”

I entirely agree. Although a successful action nullifying the installation and crowning of the defendant will have the same effect, it is better still to keep the parties in statu quo pending the determination of the substantive suit, by the grant of the interlocutory injunction.

Finally, Chief Umeadi’s contention that the Court of Appeal ought to have looked at both affidavits, and Exhibits C, E and F in determining the application for interlocutory injunction seems to me to have ignored the nature and essence of the application for interlocutory injunctions. A judge determining an application for interlocutory injunction must be careful not to decide the substantive issue between the parties. It is only necessary for the applicant to establish a legal right and an issue to be tried in the substantive action. The purpose of the injunction being to keep the parties in statu quo pending the determination of the substantive suit. A consideration of Exhibit C, the Nri Political Constitution, which defines the rights in dispute between the parties, in the substantive suit, will tantamount to determination of the subject matter of the substantive action. A judge should not in determining an interlocutory application, make findings on an issue to be contested in the substantive application. – See William v. Dawodu (1988) 4 NWLR (Pt.89) 189. Such an exercise will tantamount to deciding the substantive action in the interlocutory application.

The Courts below have been right in avoiding falling into the error. Chief Umeadi, SAN, is wrong for criticising the courts below for doing the right thing.

I now turn to the second issue that application for interim injunction was incompetent in the absence of an affidavit of urgency and undertaking in damages. This submission seems to me predicated on the ground that affidavit of urgency and undertaking by the plaintiff as to damages ought to be given on every interlocutory injunction. – See Fenner v. Wilson (1893) 2 Ch.656. In Kaloye v. Central Bank of Nigeria (supra) this court held that the court of first instance which granted the application ought to have extracted the undertaking in damages from the applicant. Where it has failed to do so the injunction would be discharged on appeal.

But the case before us is completely different. In the instant case, as Chief (Dr.) Ejike-Ume correctly pointed out, plaintiffs had voluntarily deposed in the affidavit in support of the application to an undertaking as to damages as follows:-

“3. That I and the plaintiffs on behalf of the entire Akamkpisi community hereby give an undertaking to defray or meet any costs if adjudged due to the defendant arising from this case, no matter the amount involved.”

In the light of this deposition the necessity for extracting an undertaking in damages did not arise. Chief (Dr.) Ejike-Ume was right in his submission that this was not a ground of appeal argued in the court below, but he was in error that Chief Umeadi did not obtain leave to argue the ground in this court. Leave of this court was granted Chief Umeadi, S.A.N. to argue the ground even though it was not a ground of appeal raised in the court below.

The Court of Appeal was therefore right in its view that “the circumstances of this case are not deserving of any undertaking for damages.”

I agree entirely with this view also.

For the reasons I have given in this judgment, all the issues for determination formulated fail. The appeal is accordingly dismissed. Appellants shall pay costs to the respondents assessed at N1,000.00.P. NNAEMEKA-AGU, J.S.C.: This is an appeal against the judgment of the Court of Appeal, Enugu Division, (coram: Katsina-Alu, Oguntade and Uwaifo, JJ.C.A) which had dismissed an appeal by the defendants against the ruling of abies ie, J., sitting at Awka in an Anambia/Awka High Court.

The claim before the court was for the following reliefs:-

(i) A declaration that Nri town is made up of six villages.

(ii) A declaration that the six villages which include the plaintiffs have to give their consent before the enthronement of any person from Nri as the Eze or Igwe of Nri.

(iii) An order of injunction restraining the defendant, his privies and supporters from presenting himself for installation and/or coronation or installing or crowning the defendant the Eze or Igwe of Nri without the consent or consensus of the plaintiffs given in writing or in a customary way in a public gathering or meeting.”

Subsequent to an interim order of injunction which the learned judge refused to set aside, the learned trial judge heard the plaintiffs’ application for interlocutory injunction (wrongly called interim injunction) and granted it. Giving reasons for his ruling, he held, inter alia, as follows:-

“Refusing this application will “automatically lead to the destruction of the res and render whatever judgment to be given by this court ineffective and unenforceable. In the end result, this court has no alternative but to grant the application. Respondent is hereby restrained from presenting or getting himself to be crowned and/or installed the Eze or Igwe of Nri pending the final determination of this suit. Costs fixed at N100.00 will be paid by respondent to applicants.”

Furthermore, he had ordered an accelerated hearing of the substantive suit.

It does appear that the Defendant instead of taking advantage of or pursuing the order for accelerated hearing decided to appeal against the order for interlocutory injunction. This is quite a surprising course to take. For quite apart from the fact that this has apparently led to further delay in the hearing of the substantive suit, which is said to be still pending since March, 1988, it should now be obvious to parties and their counsel from a gamut of decided cases that in practically most applications for interlocutory injunction the justice of the case can quite often be met by accelerating the hearing instead of granting an order of interlocutory injunction. A successful application for interlocutory injunction simply keeps matters in statu quo until the completion of hearing. But a disposes of the matter for good. The better view is, therefore, that whenever it is possible to accelerate the hearing instead of wading through massive affidavits and hearing lengthy arguments on interlocutory injunction, the court should accelerate the hearing and decide finally on the rights of the parties. Underscoring this principle in the case of John Holt Nigeria Limited v. Holts African Workers Union of Nigeria and Cameroon (1963) 2 SCNLR 383; (1963) 1 All NLR 279, this Court, per Ademola, C.J.N. said:-

“It should have been obvious to the trial judge that this is a matter in which time and inconvenience would be saved by the hearing of the substantive action itself instead of the time spent on hearing arguments on an interlocutory injunction and granting order for leave to appeal. Everything ought to have been done to avoid trying the same question on two occasions.”

See also Nigerian Civil Service Union v. Essien (1985) 3 NWLR (Pt.12) 306.

Indeed the need to preserve the res by an interlocutory order of injunction in which settled principles of law must of necessity be examined and decided upon arises only when and because due to other businesses of the court, it cannot hear the substantive suit; or when due to the complexity of issues, a protracted hearing is anticipated. When otherwise, an interim preservative order and an accelerated hearing should normally take care of the situation.

Looking at the pleadings in this case, the main issues for determination in the main case appear to fall within a very narrow compass. It should have been much easier to dispose of them than this protracted exercise on interlocutory injunction. The Court of Appeal summarized those issues thus:-

“The substance of the case put forward by the plaintiffs is that those they represented were entitled to be consulted and indeed they had customary roles to play in the selection and installation of the Eze or Igwe of Nri. They contended that they were denied the opportunity to exercise such rights, and that therefore the defendant was not validly selected as the Eze or Igwe. They contended further that the defendant if not restrained by a Court Order would get himself installed as the Eze or Igwe of Nri before the determination of the case brought by the plaintiffs.” The real issue of substance raised by this appeal is whether on that state of the questions to be decided in the case, the courts below had a proper basis for restraining the defendants by an interlocutory injunction from getting himself installed as Eze/lgwe of Nri before the determination of the substantive suit. The learned counsel for the appellant formulated the issues for determination thus:-

“(i) Were the learned Justices of the Court of Appeal right in holding that in considering an appeal they are confined to “what the lower court said in the ruling appealed against”

(ii) Were the learned Justices of the Court of Appeal right in upholding a ruling where one of the grounds of appeal is that the learned judge exercised his discretion wrongly when the law and principles for grant of interim injunction are not applicable and, a fortiori, when one of their concurring Justices conceded “that the procedure for granting such relief was not followed or even adverted to by the learned trial Judge”

(iii) Were the learned Justices of the Court of Appeal right in not allowing the appellant’s appeal when it is obvious that the ex-parte order and interim injunction were incompetent in the absence of an affidavit of urgency and undertaking in damages – two issues promptly raised in the Court of Trial- when they have the power by the combined effect of section 16 of the Court of Appeal Act and Order 1 r. 20(5) Court of Appeal Rules 1981

(iv) Were the learned Justices of the Court of Appeal right in not looking at the statement of defence and appellant’s exhibit “C” attached to his affidavit in order to satisfy themselves about the existence and threatened infringement of the plaintiffs/respondents’ “rights”, if any to warrant an order of interlocutory injunction in view of section 13(3) of Traditional Rulers Law of Anambra State 1981′

On the other hand, learned counsel for the respondent formulated the issues thus:-

“1. Whether the Court of Appeal was right in upholding the ruling of the High Court granting the interim injunction and consequently dismissing the appellant’s appeal

2. Whether on the affidavit evidence the respondents established ‘a serious question of law to be tried’ or prima facie case’ as required by law before the grant of the interim injunction and the consequent upholding of same by the Court of Appeal
3. Whether there was a res to be preserved under the circumstances
4. Whether an Appeal Court could interfere with the exercise of discretion that was not shown to have been done mala fide”

With greatest respects, the way Senior Counsel on both sides have formulated issues in this case calls for a restatement or at least a summary of the rules on framing issues in appeals as have been adumbrated in many decided cases of this Court, namely:

(i) Issues are an indispensable part of an appellate brief because a point not raised in the brief cannot be entertained in oral argument (Dilibe v. Nwakozor (1986) 5 NWLR (Pt.41) 315.

(ii) An issue must arise from one or more of the grounds of appeal filed, as any issue which does not comply with this requirement must be struck out or ignored (Osinupebi v .Saibu (1982) 7 S.C. 104, pp.110 – 111).

(iii) An issue is not intended just to spotlight a slip committed by the lower court. Rather, bearing in mind the fact that an issue for purposes of an appeal is that which, if decided in favour of a party will result in a verdict in his favour. an issue is a statement of facts or a combination of facts with their legal consequences, not statements of abstract principles of law. Such facts are concretely tailored to the facts of the case. A resolution of an issue one way or the other will affect the result of the appeal. (See Standard Consolidated Dredging & Construction Company Ltd. & Anor. v. Katonecrest Nig. Ltd. (1986) 5 NWLR (Pr.44) 791, at p.799).

(iv) Argumentation is no part of an issue.

As an example, upon a look at “issue” No.1 framed on behalf of the appellant, one wonders whether a resolution of that in favour of the appellant would have entitled him to relief. The blue pencil rule applicable to grounds of appeal postulates that a party may succeed in the point he has raised as a ground of appeal and yet fail in his appeal if that ground is not substantial in the sense that it has led to a miscarriage of justice. There is no such rule with respect to issues. An issue in an appeal must be such that once it succeeds, the appeal is bound to be allowed.

It is convenient to begin with the appellant’s contention that the respondents did not show that they had no right which ought to be protected by an order of interlocutory injunction. It appears to me that the appellant’s counsel was right when he submitted that the respondents must show that they had a right which ought to be protected by an order of injunction; but that he misapprehended the nature of such right and how far it must be established before they are entitled to the grant of interlocutory injunction for its protection. Learned Senior Advocate submitted, rightly in my view, that the injunction could only have been granted in support of a legal right; see Commissioner for Works, Benue State v. Devcon Development Consultants Ltd. & Anor. (1988) 3 NWLR (Pt.83) 407, p.422. But he went further to submit that the court below was in error not to have examined Exhibit C said to be Nri Political Constitution in order to find out the rights of the respondents and similarly Exhibit E, a petition, and Exhibit F. But the court below based its decision on the assertion of their right to be consulted before the Igwe could be installed and the denial of that right. When the appellant denied their entitlement to be consulted, a serious issue for trail emerged: see Lewis & Peat (NRI) Ltd v. Akhimien (1976) 7 S.C. 157. This is sufficient to satisfy the requirement that the respondents should show that there is a serious issue to be tried. The stage had not been reached to dig into the questions of admissibility, relevance and cogency of Exhibit C. That stage will be gone into during the trial of the substantive suit. For the true nature of the right asserted by the respondents, it is useful to bear in mind the fact that when, in relation to an order of interlocutory injunction, we talk about preservation of the res that word is not taken narrowly or literally. For, although the word res normally means a thing, in relation to an order of interlocutory injunction it means “all physical and metaphysical existence, in which persons may claim a right” “it comprehends corporeal and incorporeal objects of whatever nature, sort, or species” (Wharton: Law Lexicon) 14th Edition pp.871 – 872. It therefore extends to any right which a person may exercise over such a res. In the instant case, the right which the plaintiffs assert is that to participate or at least to consent in the selection and installation of the Igwe of Nri town to which they maintain that both parties belong. If the defendant was not restrained and the appellant went on to get installed as Igwe, then an irretrievable harm might have been done to the rights being asserted by the plaintiffs; the res would have been destroyed. So, equity stepped in by way of an order of interlocutory injunction to maintain matters in statu quo, pending the determination of the suit. On the pleadings and the uncontradicted portion of the affidavit before the court, I do not see how it could be said that the plaintiffs had not shown what res of theirs would be destroyed, if not preserved.

It is not correct to say that the courts below did not consider the balance of convenience. They did and came to the conclusion that the defendant would Jose none of his expenses so far if only the public presentation which is of the very essence of the installation was suspended until the determination of the suit. Putting it against the rights of the respondents which will be lost for good if the installation was allowed to go on, it is obvious that the balance of convenience lay in favour of the respondents.

Similarly, he complains about the failure of the Court of Appeal to give adequate consideration to the question of failure of the learned trial judge to extract an undertaking for damages from the respondents before making the order appealed against. For this failure, he contends that the order made was incompetent.

I wish to point out straight away that although, as I stated in Kotoye v. Central Bank of Nigeria & Ors.(1989) 1 NWLR (Pt.98) 419. at p.450, an undertaking as to damages is the price which every applicant for an interlocutory injunction has to pay for it and that, save in recognized exceptions, it ought not to be granted if no undertaking has been given, it is putting the consequences of the failure to give the undertaking too high to say, as the learned Senior Advocate for the appellant has stated in his brief, that that rendered the order made incompetent. A similar contention was rejected at pagc 451 of Kotoye’s case (supra). The true position is that it renders the order liable to be set aside. Whether it will be set aside in any case will depend upon the facts of the particular case. In the instant case, the Court of Appeal gave reasons for not setting aside the order. It held:

“Incidentally, the plaintiffs who had sought the injunction had been willing to give such an undertaking. In paragraph 3 of the further affidavit, the 3rd plaintiff deposed:

“That I and the other plaintiffs on behalf of the entire Akamkpisi community hereby give an undertaking to defray or meet any costs if adjudged due to the defendant arising from this case no matter the amount involved.”

There is no appeal against the fact that the lower court had not called upon the plaintiffs to give an undertaking for damages. It seems t me however that the circumstances of this case are not deserving of any undertaking for damages. The defendant claimed that he had fully completed the rites necessary for the assumption of the Ezeship or Igweship. He said that he had in fact assumed the office and that he had spent a sum of 250,000.00 in the process. The injunction in effect only stopped him from the merely ceremonial gesture of being publicly presented to his subjects. If ultimately, the defendant wins, the defendant will only need to arrange that he be publicly introduced to his subjects. There is therefore no possibility that the defendant will lose what he had spent on the installation process before he was restrained. On these facts, the need to extract an undertaking for damages from the plaintiffs would not arise.”

I believe these were good reasons why the order made ought not to have been set aside for failure to enter into an undertaking as to damages.

As for what the plaintiffs ought to show before they would be entitled to an order of interlocutory injunction, it does appear that there still persists that confusion, apparent from conflicting dicta in many decided cases, as to whether an applicant for an interlocutory injunction needs to show that he has a prima facie case a strong prima facie case or merely that there are substantial issues of fact or of law or both to be tried. Indeed, the learned Senior Advocate for the plaintiffs (respondents) in the formulation of the second issue for his clients used such expressions as if they were interchangeable, whereas they are not. I believe it is necessary to reiterate that, as explained by this court in Obeya Memorial Hospital & Anor. v. Attorney-General of the Federation & Anor (1987) 3 NWLR (Pt.60) 235, at pages 338 – 340, an applicant for the relief of interlocutory injunction pending the determination of a suit does not need to establish a “strong prima facie case” or even a “prima facie case” in order to be entitled to the relief. Rather, it is sufficient if he can show that there is a substantial issue to be tried: see Egbe v. Onogun (1972) 1 All NLR 95, at 98; Kufeji v. Kogbe (1961) All NLR 113′ p.114. Thus our law on the point has been brought to the level as that in England as expressed by Lord Diplock in the House of Lords in American Cyanamide v. Ethicon Ltd. (1975) A.C. 396, at 407. So, for the avoidance of doubt, all the old cases, such as Woluchem v. Wokoma (1974) 3 – 5 S.C. 153, at p.156 which suggest the need to establish “a strong prima facie case” and Ladunni v. Kukoyi & Ors (1972) 1 All NLR (Pt. 1) 133, at p.138 which stated that such an applicant must establish “a prima facie case” before he succeeds, no longer represent the law. The law as it now stands which requires that the applicant needs only to show that there is a substantial issue to be tried in the suit is a rule of convenience which has gone a long way to eliminate or reduce the need to try issues of fact twice, first in the application for interlocutory injunction and secondly in the substantive suit. Once the matter is one that ought to be restrained by an injunction and the applicant shows that there is a substantial issue to be tried, that the balance of convenience is on his side, that an irreparable damage will be done to his case if the injunction is not granted; and that he is prepared to give an undertaking for damages, the application ought to be granted, unless, of course, the court prefers to accelerate the hearing of the suit.

Upon a calm view of the pleadings and uncontradicted affidavit evidence in this suit which were before the High Court during its consideration of the application for interlocutory injunction, I am satisfied that the learned trial Judge was entitled and right to have granted the application. I see nothing wrong in the manner he exercised his discretion. And it has been settled that when a Judge of trial exercises his discretion in a matter before him, an appellate court, be it the Court of Appeal or this court, which has the power to review the exercise of it on appeal, ought to approach the issue from the viewpoint that the discretion is that of the court of trial and not that of the appellate court. Once it is clear that the trial court exercised its discretion bona fide and judicially, that is not arbitrarily or illegally or by reference to extraneous considerations or by failing to take any material and relevant consideration into account, the appellate court cannot interfere. See James Ntukidem v. Chief Asuquo Oke (1986) 5 NWLR (Pt.45) 909; Atanda & Ors. v. Olanrewaju & Ors. (1988) 4 NWLR (Pt.89) 394, at p.397. For the above reasons, I am satisfied that the Court of Appeal was right to have dismissed the appeal against the grant of the order of interlocutory injunction.

For the above reasons and for the fuller reasons contained in the judgment of my learned brother, Karibi-Whyte, J.S.C., which I adopt as my own, the appeal fails and is dismissed. I subscribe to the orders made by him.O. OLATAWURA, J.S.C.: I had the advantage of reading in advance the judgment of my learned brother Karibi- Whyte, J.S.C. just delivered. I agree in toto with his reasoning and conclusion, I have nothing useful to add. The appeal lacks merit and is hereby dismissed. I abide by the order for costs.

SC.276/1989