Yusuf Babatunde Anisu V. Prince James Adeleke Osayomi & Ors (2000)
LawGlobal-Hub Lead Judgment Report
PATRICK IBE AMAIZU, J.C.A.
This is an appeal against the ruling of Ajayi, J., of the then Ondo High Court, sitting at Ijero-Ekiti Judicial Division. The ruling was delivered on the 13th day of December, 1994.
Briefly, the facts that gave rise to the appeal are as follows:-
The throne of Olosan of Osan-Ekiti was vacant. It appears there were two principal contestants to the throne, namely: Prince Adeleke Osayomi and Yusuf Babatunde Anisu. The then Ondo State Government in its wisdom recognised the selection of Yusuf Babatunde Anisu as the Olosan of Osan-Ekiti. The State Government went on to fix the 30th day of April 1994, as the day it would hand over the staff of office to Yusuf Babatunde Anisu.
The supporters of Prince Adeleke Osayomi were not happy with the recognition. They initiated proceedings in the High Court against the government and Yusuf Babatunde Anisu.
By a writ of summons dated 6th day of July, 1993, and filed on 8th day of July, 1993, they claimed seven reliefs against the Executive Governor of Ondo State, Yusuf Babatunde Anisu and others connected with the recognition. The reliefs they claimed include the following –
“6. An injunction restraining the 4th defendant from presenting himself to anyone for installation as the Olosan of Osan-Ekiti or performing the duties and or functions of the Olosan or wearing the regalia of the said Olosan of Osan Chieftaincy.
- An injunction restraining the 1st – 3rd defendants, their agents, servants or their privies from giving any further recognition for the appointment of the 4th defendant as the Olosan of Osan-Ekiti”.
Prince James Adeleke Osayomi was the 1st Plaintiff in the suit, while the Executive Governor of Ekiti State and two of his functionaries were 1st, 2nd and 3rd Defendants respectively. Yusuf Babatunde Anisu was the 4th Defendant.
Before the suit was heard, the Plaintiffs brought an ex parte motion praying the court for an order restraining the Executive Governor of Ekiti State from presenting Yusuf Babatunde Anisu with the staff of office the date for which ceremony, as mentioned earlier was fixed for 30th April, 1994. The court granted the application on the 26th day of April, 1994. Thereafter, the Executive Governor, his functionaries and Yusuf Babatunde Anisu were served with the enrolled order. In defiance of the order, the Executive Governor through his functionaries handed over the staff of office to Yusuf Babatunde Anisu that day.
The Plaintiffs were enraged by the flagrant disobedience of the court order by the Executive Governor, his functionaries and Yusuf Babatunde Anisu. They brought a Motion on Notice for committal of the erring parties for contempt. This was in May, 1994. Before the motion was heard, the Attorney-General/Commissioner for Justice of Ekiti State intervened and the motion was abandoned. Unfortunately, Yusuf Babatunde Anisu continued to flout the order of the court. In order to put an end to the disobedience, the Plaintiffs brought a Motion on Notice dated 28th day of November, 1994.
It prayed the court for an order of interlocutory injunction restraining
“(1) The 4th Defendant/Respondent from parading/holding himself out as or performing the functions of Olosan of Osan-Ekiti.
(2) The 1st – 3rd Defendants/Respondents from recognising/dealing with the 4th Defendant/Respondent as Olosan of Osan-Ekiti pending the final determination of the substantive suit by this Honourable Court”.
The learned trial judge after hearing arguments on the motion, granted the application in the following terms –
“The 4th defendant/respondent is hereby restrained from parading himself or holding himself out or performing the functions of the Olosan of Osan-Ekiti and the 1st, 2nd, 3rd Defendants are hereby restrained from recognising the 4th defendant or dealing with him as the Olosan of Osan pending the determination of the substantive suit”.
The 4th Defendant was dissatisfied with the ruling. He has appealed to this court. Pursuant to the Rules of the Court, the learned counsel for the parties filed and exchanged briefs of argument. The Appellant filed in addition a reply brief. The briefs were adopted by the learned counsel at the hearing of the appeal.
It is to be mentioned that the learned counsel for the 1st – 3rd Respondents raised a preliminary objection in his brief. I consider it necessary to deal with it first. This is because if it is upheld, it will be a useless exercise considering the main appeal.
According to the learned counsel, for the 1st – 3rd Respondents, Olatunde Esq., this court granted the Appellants leave to appeal against the above ruling on the 2nd of December, 1997. On the 18th day of June, 1998, the lower court delivered a considered judgment in the substantive suit, in favour of the 1st – 3rd Respondents in this appeal. In the said judgment, all the reliefs sought by the 1st – 3rd Respondents, referred to above, were granted against the Appellant and 4th – 8th Respondents.
Following the said judgment, the 7th and 8th Respondents filed an appeal. He referred to the Notice of Appeal dated 22nd June, 1998. According to the learned counsel, the 4th and 5th Respondents in this appeal, also filed a Notice of Appeal dated 27th July, 1998.
It is the view of the learned counsel that in the light of this development, no useful purpose will be served in hearing this interlocutory appeal when the substantive case has been determined. He reminded the court that the interlocutory order which gave rise to this appeal was made pending the determination of the substantive suit. The conclusion of the substantive suit on 18th June, 1998, he submitted, removed the substance of the interlocutory order, and by extension the present appeal. He further submitted that as the substantive suit has been determined, the interlocutory injunction made on 13th day of December, 1994, elapsed with the decision. It is the learned counsel’s view that since the order has elapsed, any appeal based on the elapsed order becomes hypothetical or a mere academic exercise. He contended that a court should not entertain or determine hypothetical or academic questions. He cited the case of Princess Bilewu Oyewunmi & Ors. vs. Amos Owoade Ogunesan (1990) 3 N.W.L.R. (Pt.137) P.182.
Finally, the learned counsel contended that it is trite law that an interlocutory or interim order of a court remains extant only up to the time the substantive judgment is delivered. The interim order would therefore have become spent at the time the judgment was delivered. He relied on the following cases:
Emmanuel J. Iwuchukwu vs. Engineer David C. Nwizu & Or. (1994) 7 N.W.L.R. (Pt.357) P. 379 at 408.
Adefulu vs. Oyesile (1989) 12 SCNJ 44 at 69.
In reply to the above objection, Akeju Esq., of counsel, submitted that the authorities relied upon by the learned counsel for the 1st to 3rd Respondents in his preliminary objection are not relevant to the present appeal. It is his view that the authorities would have been relevant, if the present appeal would serve no useful purpose. The learned counsel emphasized the need for the present appeal to be heard in order to bring justice to the parties especially to the appellant.
The learned counsel then went into the history of the substantive case. How the Appellant, following the grant of an interlocutory injunction vacated the Palace of Olosan of Osan-Ekiti over two years before the final judgment was given on the 18th of June, 1988. The learned counsel referred to the maxim “Ubi jus, ibi remedium” (where there is a right there is a remedy). He then posed the question – whether there are features in this case that will prevent the appellant from having a remedy through this appeal? He answered the question in the negative. He observed that it is the duty of every court to ensure substantial justice to all manner of persons appearing before it. Finally, the learned counsel referred to the observation of Achike, JCA (as he then was) in the case of Dantata & Samoe Construction Co. Nig. Ltd. vs. Peter Egbe (1993) 4 NWLR (Pt.287) P. 235 at 345 that an appellate court cannot stand aloof and watch with insensitivity the legal rights of the parties being plunged into a quagmire. The learned counsel urged the court to hear the appeal on its merit.
Morakinyo Esq., of counsel, did not make any comment on the preliminary objection in his brief of argument.
It does seem to me that in order to fully appreciate the preliminary objection raised by Olatunde Esq., of counsel, one has to revisit the ruling of the lower court, the subject matter of appeal, and the relief sought by the 1st – 3rd Respondents which gave rise to the ruling.
The relief sought by the 1st – 3rd Respondents in the lower court was for –
“An Order of interlocutory injunction restraining –
(1) The 4th Defendant/Respondent from parading/holding himself out as or performing the functions of Olosan of Osan-Ekiti.
(2) The 1st – 3rd Defendants/Respondents from recognising/dealing with the 4th Defendant/Respondent as Olosan of Osan-Ekiti pending the final determination of the substantive suit by this Honourable Court”.
It is clear from the above that the application in the lower court was for an interlocutory injunction. One may then ask what does an interlocutory injunction mean, and what is its life span?
Nnaemeka-Agu, JSC (as he then was) answered the two questions in the case of Kotoye vs. Central Bank of Nigeria & Ors. (1989) 1 NSCC p. 238 at 250. He stated as follows –
“On the other hand, even though the word interlocutory comes from two latin words “Inter (meaning between or among) and “locutus” (meaning spoken) and strictly means an injunction granted after due contest inter parties, yet when used in contradistinction to ‘interim’ in relation to injunctions, it means an injunction not only ordered a full contest between the parties but also ordered to last until the determination of the main suit. Applications for interlocutory injunctions are properly made on notice to the other side to keep matters in status quo until the determination of the suit”.
In a more recent case of Obidiagwu Onyesoh vs. Nze Christopher Nnebedum & Ors. (1992) 3 NWLR (Pt.229) page 315, Karibi-Whyte, JSC, observed at page 336-
“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”.
My understanding of the above judgments is that an interlocutory injunction is an interim order which lasts till the suit on which it is predicated is disposed of.
The next question is, what is the nature of order made by the lower court following the application which is the subject of this appeal? The relevant ruling of the lower court reads as follows-
“The 4th Defendant/Respondent is hereby restrained from parading himself or holding himself out or performing the functions of the Olosan of Osan-Ekiti and the 1st, 2nd and 3rd defendants are hereby restrained from recognizing the 4th defendant or dealing with him as the Olosan of Osan-Ekiti pending the determination of the substantive suit.”
The above ruling is clear and unambiguous. The interlocutory order lasts “pending the determination of the substantive suit”. It is because of the life span of an interlocutory injunction that Uwais, JSC, (as he then was) delivering the lead judgment in the case of Emmanuel J. Iwuchukwu vs. Engineer David C. Nwizu & Ors. (1994) 7 NWLR (Pt. 357) p. 379 observed at page 408 as follows:
“Again the appeal by the Appellant which was against the interim order granted by Eigbedio, J. for stay of execution pending the determination by the Court of Appeal of the main appeal could have been pursued in that Court since the Applicant had filed a brief of argument. But the question is: What useful purpose would that have served? The interim stay of execution remained extant only up to the time the judgment of the Court of Appeal was delivered. So that if even it had been argued it would automatically have become spent at the time the judgment of the Court of Appeal was delivered”.
From the above decisions of the apex court, I entirely agree with the submission of Olatunde Esq, of counsel that-
“The interlocutory appeal ……… which was in respect of an order pending the determination of the case by the Federal High Court, could not have served any useful purpose since the trial by that court had in any event long been determined”.
I am not unaware of the sentiment expressed by the learned counsel for the appellant that the hearing of this appeal will clear way for doing justice to the parties especially to the appellant in this appeal. That may well be. But in the words of the apex court in the case of Board of Customs and Excise vs. Barau (1982) NSCC p. 358-
“The duty of this court, and indeed of all courts is to ascertain the law and give full effect to it. To allow the judgment of a court to be determined not from logical result of legal reasoning but by the possible consequence to an appellant, is to depart from the arena of precise law and wade into the muddy waters of political science”.
In sum, I find merit in the preliminary objection. It is upheld. The appeal is struck out. N3,000.00 costs are awarded to the 1st to 3rd Respondents.
Other Citations: (2000)LCN/0817(CA)