Tijjani V. Njc & Ors (2021)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED MUSTAPHA, J.C.A. 

This application was brought pursuant to Orders 7 Rule 1, 17, Rules 1 and 2, 18 Rule 11, 20 Rules 2 and 3 of the Court of Appeal Rules 2011, Sections 6 (6) (a), 35 (1) 46 (1) and 232 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria, as amended and the inherent jurisdiction of this Court.

The application prays for the following orders:

1. AN ORDER of Hon. Court of Appeal granting the order contained in the Applicant/ Appellant’s Application dated 2nd July, 2020 as a prelude for contempt of Court procedure as prescribed by statute against the 4th Respondent, that the Trial Judge who is clothed with Jurisdictional power to grant, but willfully refused and neglected to hear and grant, before further step could be taken in the hearing of the instant Appeal today. Marked T .1
2. AN ORDER of the Hon. Court of Appeal restraining the 5th, 7th and 8th Respondents, the Executive Arm of Lagos State Government; the state of origin of the 4th Respondent herein or any of her agencies, including but not limited to the 5th Respondent; ‘the Hon. Attorney General and Commissioner for Justice Lagos State; the 7th & 8th Respondents; the DPP Lagos State from instituting and or maintaining any criminal proceeding or charges relating to any of the charges contained either in its original or amended form in CHARGE/ SUIT NO: ID/2626C/2016. STATE OF LAGOS V. ALHAJI ABDUL RAUF AND ALHAJI FARRY YUSUF Or any other offences that having the same ingredients as the offences contained either in its original or amended form of the instant charges.
3. AN ORDER of the Hon. Court of Appeal compelling the state of Lagos High Court presided over by Hon. Justice Hakeem Oshodi. J that is sitting as Appellate Court on the final judgment/ orders of the Federal High Court to grants as follows;

a) Immediate grant of stay of proceeding on: CHARGE/ SUIT NO: ID/2626C/2016. STATE OF LAGOS V. ALHAJI ABDUL RAUF TIJJANI AND AKANNI SAUDA. And CHARGE/ SUIT NO: ID/2626C/2016. STATE OF LAGOS V. ALHAJI ABDUL RAUF TIJJANI AND ALHAJI FARRY YUSUF.

b) Grant the stay of enforcing the unlawful warrant of arrest of the Applicant/ Appellant herein and his privies issued by the State High Court of the 5th, 7th and 8th Respondents that operating as Appellate Court to sit on the final decision of the Federal High Court without Authority of law.

c) And AN ORDER setting aside all the proceeding/ decisions taken so far in two mentioned suit numbers Supra including releasing of the International Passport of the Applicant/ Appellant herein and his privies from all the encumbrances imposed on them in the said purported Appellate of Lagos State High Court Anarchistically created by the 5th, 7th and 8th Respondents without Authority of law.

4. And for Status Quo to be secured; AN ORDER of the Hon. Court of Appeal discharge and Acquittal the Applicant/ Appellant herein and his privies; the Defendants/ Applicants thereof on the grand of legislative law and constitution as a means by which the law vindicates the Public interest in the Administration of Justice.
5. AND for such further order or other order as this Honorable Court of Appeal may deem fit to grant in the circumstance.

The grounds for the application are:

1. The Court is a creation of the constitution. It will not give its aid, under any guise, to a violation of any provision of the Constitution, which give it life. And as argued by learned Counsel for the respondents in the oral application Judges must, at all times and under all circumstances, strive to honour their oath office to defend and protect to constitution.
2. The object of interlocutory injunction is to protect the applicant against injury by violation of his right for which he would not be adequately compensated on damages recoverable in the action, if the uncertainty were resolved in his favour at the trail.
3. It is the duty of the judiciary to keep in check the excesses of the executives and overbearing and abrasive tendencies of the Legislature so that each of the 3 components of the government confines itself within the province allocated or prescribed for it by the constitution … I am of view that, it should be understood that a constitution is not a mere common legal document. It is essentially a document relating to and regulating the affairs of the nation state and stating the functions and powers of the different apparatus of the government as well as regulating the relationship between the Citizen and the State. It equally makes provision for rights of the citizen within the compass of the state.
4. An interlocutory injunction which is granted in the litigation process is basically aimed at maintaining the status quo pending the determination of the issues submitted for adjudication by the Court. It is an equitable jurisdiction which the Court is called upon to exercise in the light of the facts presented before it by the applicant.
5. The injunction is not granted as a matter of grace, routine or course. On the contrary, the injunction is granted only in deserving cases, based on hard law and facts. Some of the principles or factors to be considered in an application for interlocutory injunction are:
6. There must be a subsisting action.
7. The subsisting action must clearly denote a legal right which the applicant must protect.
8. The applicant must show that there is a serious question or substantial issue to be tired.
9. And because of (3) above, the status quo should be maintained pending the determination of the substantive action.

​The application is supported by a nine-paragraph affidavit deposed to by Alhaji Abdul-Rauf Tijjani MNI OFR, with the written address in support of motion as well as exhibit A1, AB, exhibit A3A, A3B, A4, A5, A6, A7, T1 and T5 attached. The affidavit of urgency was withdrawn and struck out on the 4th of March, 2021; the 6th was served with both the hearing notice but was not in Court.

The Applicant urged the Court to grant the application in the interest of justice.

U.O. Sule Esq., SAN for the 1st Respondent did not file a counter affidavit but opposed the application on points of law; urging the Court to dismiss the application because, it does not relate to this appeal in his opinion.

Innocent Daagba Esq., of counsel for the 2nd Respondent while adopting the submissions of U.O. Sule SAN also urged the Court to dismiss the application because the application relates to a case before the Lagos State High Court and not this Court.

Rex Irame Esq., of counsel for the 3rd Respondent adopted the submissions of U.O. Sule SAN and also urged the Court to dismiss the application without much ado.

Boniface Bassey Esq., for the 4th Respondent adopted the submissions of the 1st and 2nd Respondent’s counsel as well.

​Ojonimi S. Appeh Esq., for the 5th, 7th and 8th Respondents filed a eight paragraph counter affidavit deposed by Ayobami K. Oke Esq., in opposition to the application.