Triana Limited & Anor V. Noel Ezenwa & Anor (2016)
LawGlobal-Hub Lead Judgment Report
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
This appeal challenges the Ruling of the High Court of Lagos State delivered by HON. JUSTICE C.O SEGUN on the 17th day of November, 1998 in suit No LD/535/90 wherein an interlocutory injunction was granted in favour of the Respondents herein as Defendants in the lower Court and against the 2nd Appellant as the 2nd Plaintiff in the suit.
The Appellants herein had as Plaintiffs in the lower Court filed an action against the Respondents as Defendants wherein they claimed certain reliefs.
On 20th March 1990, the Appellants also filed a motion on notice for an interlocutory injunction restraining the Respondents, his servants, agents, and/or privies from entering upon, remaining/or interfering in any manner with the premises know as 2B Degema Close. G.R.A Apapa pending the hearing and determination of the substantive suit.
In a Ruling delivered by the lower Court, CORAM AKA J. (deceased) after a review of the parties affidavit, counter affidavit and submissions, the Appellants? prayer for interlocutory injunction was granted as prayed and order for
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accelerated hearing of the main suit was also made.
However, six years later and precisely on 11th March 1996 the Respondents herein, as Defendants in the lower Court filed another motion on notice seeking an order of interlocutory injunction against the 2nd Appellant as Plaintiff.
The application was challenged via a counter affidavit. This time around the matter was before HON. JUSTICE C.O SEGUN who in a considered ruling delivered on 17-11-1998 and though acknowledged the existence of a subsisting order of injunction earlier made by AKA J. (deceased) however granted the Respondents application.
The Appellants being dissatisfied with the said Ruling of the lower Court per SEGUN J. filed a Notice of Appeal on the 30-11-1998.
Briefs of argument were subsequently filed and exchanged by the parties pursuant to the relevant Rules of this Court. The said briefs of argument were duly adopted and relied on at the hearing of this appeal on the 3-5-2016.
?The Appellants? brief of argument was dated and filed on 30-6-2014 and deemed properly filed and served on 1-7-14.
The Respondents? brief of argument is dated 20-2-2015 and
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filed on 24-2-2015 but deemed properly filed and served on 12-2-2016.
The Appellants also filed Appellants? reply brief on 17-11-15 but deemed properly filed and served on 12-2-2016.
The hearing of the appeal was however preceded by the moving of the Respondents? Notice of Preliminary Objection filed on 24/2/2015.
As is judicially customary, I will address the Preliminary Objection before delving into the main appeal where the need arises. See JAIYEOLA VS ARIOYE (2003) 4 NWLR (PT 810) 397.
In the said Notice of Preliminary Objection filed on 24-2-2015 the Respondents seeks the following reliefs:-
(1) An order striking out the Appellant?/Respondents? Notice of Appeal dated 30th November 1998 for being incompetent.
(2) An order striking out this Appeal for lack of jurisdiction.
(3) The Appellants are in contempt of Court for flagrant disobedience of Court orders.
(4) And for such further or other orders as this Honourable Court may deem fit.
The grounds for the objection are that:-
(1) This Honourable Court lacks the requisite jurisdiction to hear and/or determine this appeal as the
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Appellants/Respondents neither sought nor obtained the leave of this Honourable Court not that of the High Court before bringing this interlocutory appeal to this Honourable Court.
(2)The Appellants?/Respondents? Notice of Appeal dated 30th November, 1998 contains grounds of mixed law and facts for which leave is required.
(3) That contrary to the provision of Section 242 of the 1999 Constitution of the Federal Republic of Nigeria as amended, leave of this Honourable Court was not sought and obtained before the Appellants/Respondents filed their grounds of appeal on questions of mixed law and facts.
(4) The Respondents/Appellants shall at the hearing of this appeal move this Court to strike out the Appellants? Notice of Appeal dated 30th November 1998 and consequently the appeal for being incompetent.
The said Notice of Preliminary Objection is supported by a 6 paragraph affidavit. The arguments in support are embedded in pages 3 to 8 of the Respondents? brief of argument. A sole issue for determination was raised as follows;-
?Whether the Appellants? appeal is valid and competent.?<br< p=””
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Arguing on same, Learned Counsel for the Respondents referred to Section 241 and 242 of the 1999 Constitution (as amended) to posit that the Constitution spells out the instances where appeals are as of right and where leave of Court is required. He added that the instant appeal is not as of right as detailed in Section 241 and as such requires leave of the Court under Section 242(1) of the Constitution being an interlocutory appeal wherein the Appellants are challenging the manner in which the lower Court exercised its discretion to grant an interlocutory injunction against the 2nd Plaintiff during the subsistence of another order of injunction earlier granted in favour of the Appellant.
It was submitted that when an appeal is challenging the exercise of jurisdiction by a lower Court, it is an issue of fact or at best mixed law and fact. The case of COMEX VS NIGERIAN ARAB BANK (1987) 4 SCNJ 38 at 52 and GBASHA VS LOVEBET (NIG) LTD (2005) 15 NWLR (PT 949) 551 were cited in support.
Also relying on the case of AMADASUN VS UME (2007) 13 NWLR (PT 1051) 214; ERISI VS IDIKA (1987) 4 NWLR (PT 66) 503, and ABDULSALAMI VS SALAU (2002) 13 NWLR (PT 785) 505.
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Learned Counsel submitted that the Appellants having failed to seek the leave of Court before bringing the appeal, the same is defective and incompetent and liable to be struck out because the grounds of the interlocutory appeal are mixed law and facts for which leave of the lower Court or this Court is required to be obtained.
This Court was then urged to strike out the appeal for being incompetent.
The Appellants? response to the preliminary objection is contained in pages 1 to 6 of the Appellants? reply brief.
Therein Learned Counsel for the Appellants provided a recap of the grounds of appeal and the particulars of error to submit that the said grounds of appeal involve questions of law and as such requires no leave.
He added vide LOVLEEN TOYS IND. LTD VS KOMOLAFE (2013) 14 NWLR (PT 1375) 542 at 562 that ground 1 borders on jurisdiction which is a matter of substantive law while grounds 2 and 3 are based on the misunderstanding or misapplication of the law to the facts of the case.
He added that in order to determine whether a ground of appeal involves questions of law or mixed law and facts or simply facts, what is
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required is for the grounds and the particulars to be examined holistically and a combined reading of grounds 2 and 3 and their particulars would disclose that the grounds involve questions of law only in which appeal is as of right.
It was further submitted that the arguments by the Respondents that the grounds of appeal borders on the exercise of discretion is not correct because questions of jurisdiction or misapplication of the law to the facts are not matters of discretion. Vide NJEMANZE VS NJEMANZE (2013) 8 NWLR (PT 1356) 376 at 393. He urged the Court to disregard the authorities cited in support by the Respondent because they are not applicable to the instant case.
For purposes of clarity, the three grounds of appeal and the particulars of error are hereinbelow reproduced:-
GROUNDS OF APPEAL
(1) The Learned Trial Judge erred in law when he ruled that he had jurisdiction to entertain an application to grant orders of injunction in this suit despite an earlier and subsisting order of injunction made in the same proceedings.
PARTICULAR OF ERROR
(i) An order of interlocutory injunction was initially granted in this case on
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the 11th of May, 1990, by the Honourable Justice AKA (deceased) restraining the 1st Defendant, his servants, agents and/or privies from entering upon, remaining and/or interfering in any manner whatsoever with the premises, the subject-matter of this action;
(ii) The order of injunction by Honourable Justice AKA aforesaid was not appealed against neither has it been set aside by the Court of Appeal hence it is still valid and subsisting;
(iii) The Learned Trial Judge had no jurisdiction in the circumstances of this case to vary or reverse the order of the Honourable Justice AKA made on 11th May, 1990, or to disturb the facts found by the said Judge to be established at the hearing.
The Learned Trial Judge erred in law when he made an order of injunction against the 2nd Plaintiff in the terms contained in the said Ruling.
PARTICULARS OF ERROR
(i) The Honourable Justices AKA had in his earlier Ruling on the same suit held that the status quo ante bellum is that the 2nd Plaintiff had exclusive possession of the property in dispute and the Defendant could not lay claim to the premises;
(ii) The status quo to be maintained by an order
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of injunction is the status quo ante bellum;
(iii) It amounts to a great travesty of Justice to seek by an order of injunction to alter the status quo.
The Learned Trial Judge erred in law in ordering the 2nd Plaintiff to pay into Court all rents and monies collected on the property in dispute since 1992.
PARTICULARS OF ERROR
(i) The Plaintiff had been granted the right to collect the rents by virtue of the order made in 1990 and he legally exercised the right;
(ii) Damages would have an adequate compensation;
(iii) Damages could be assessed;
(iv) It was suggested nor averred in the Affidavit in support of the Defendant?s application that the Plaintiff will not be able to refund the money or that he is a man of staw;
(v) The position of the law is that an order of injunction is not granted as remedy for what has already been done.
I have carefully reviewed the above set out grounds of appeal and the particulars of error vis-a-vis the relevant authorities on the determinants of when a ground of appeal is said to be that of law, facts or mixed law and facts.
In CHIEF OF AIR-STAFF VS IYEN (2005) 6 NWLR (PT
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922) 496, the Supreme Court at page 541 to 542 of the Report provides a detailed guide as follows:-
?A ground of appeal is a ground of law if the grounds deal exclusively with the interpretation or construction of the law without resort to the facts.
In this respect, the Court is involved in the interpretation or construction of either the Constitution or the statute with no reference to any factual situation.
A ground of appeal which alleged a mis-application of law to the facts of the case is a ground of law. On the other hand a ground of appeal is one of mixed law and fact when the ground deals with both law and fact. It is a mixed grill of law and facts so to say. A ground of appeal is one of fact where the grounds deal exclusively with the facts of a case and the facts only.
In the determination of the grounds of appeal, the Courts in most cases refer to the particulars if there are particulars. This will enable the Court to have a full view of the ground of appeal and come to the conclusion whether it is a ground of law, or one of mixed law and fact or facts simpliciter.
This is because the tag name of ground of law by the
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Appellant does not necessarily make it so.?
Equally in OGBECHIE VS ONOCHIE cited Supra by Learned Counsel for the Appellant, the Supreme Court made it quite clear that:-
?There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Court of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law, or one that would require questioning the evaluate of facts by the lower Court before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine.?
In AMUDA VS ADELODUN (1997) 5 NWLR (PT 506) 480, the Apex Court in addressing the issue of classification of grounds of appeal relied on NWADIKE VS IBEKWE (1987) 4 NWLR (PT 67) 718 to observe that:-
?It is more difficult to distinguish between a ground of appeal based on error of law and a ground of appeal on mixed law and fact as the line of
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distinction is always very thin. Care must therefore be taken not to inadvertently convert a ground based on mixed law and fact into a ground based on error of law.?
Similarly in ONIFADE VS OLAYIWOLA (1990) 7 NWLR (PT 161) 13, it was held that, it should be abundantly clear that the line of demarcation between mixed law and fact on one hand and law on the other is very thin. It was for this reason that counsel have been advised that prudence demands that they should seek leave in most cases excepting where a ground is obviously that of law.
It is also trite law that grounds of appeal that are of facts or mixed law and facts requires leave of the lower Court or this Court before it can be argued in this Court. In the absence of such leave being sought and obtained the grounds are incompetent and must be struck out. See OKWUAGBALA VS IKWUEME (2010) 19 NWLR (PT 1226) 54; GENERAL ELECTRIC COMPANY VS HARRY AYOADE AKANDE (2010) 18 NWLR (PT 1225) 596.
?On the basis of the above cited authorities and same acting as guide, in the examination of three grounds of appeal filed by the Appellants. My humble view is that ground (1) clearly raises the
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issue of jurisdiction of the lower Court to grant an order of injunction despite being aware of and did agree that an earlier order of injunction granted by the same Court is still subsisting against the Respondents. I also agree with the submission of the Appellants? Counsel that grounds 2 and 3 did not question the exercise of discretion by the Learned Trial Judge but his failure to consider and apply the law in the course of exercise of such discretion which bears on whether with the prior order of injunction made by the Court, another order ought to be made on the same subject matter.
The law is that an Appellant is allowed to raise the question of jurisdiction on appeal without the leave of Court at any stage of the proceedings and in any manner. See AGBITI VS NIGERIAN NAVY (2011) 4 NWLR (PT 1236) 175 and LOVLEEN TOYS LTD VS KOMOLAFE (Supra). Where an appeal is on ground of law, it confers on the Appellant the right to appeal without seeking the leave of Court to do so. See ABIDOYE VS ALANODE (2001) 6 NWLR (PT 209) 463 and DAIRO VS UNION BANK OF NIGERIA PLC (2007) 16 NWLR (PT 1059) 99.
?It is also a settled principle of law on the validity
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of a Notice of Appeal, that when a ground of appeal involves a question of law, it alone can sustain that Notice of Appeal. Thus by the provision of Section 241(1) of the 1999 Constitution as amended such ground of appeal confers right of appeal on an Appellant without the necessity of seeking or obtaining leave from any Court.
In the instant case, having held the view that the three grounds of appeal filed by the Appellants raises questions of law, it follows that no leave of Court is required to file same.
Accordingly, the Preliminary objection is hereby overruled and dismissed.
On the main appeal, the Appellants formulated the following two issues for determination;-
(1) Whether the lower Court had jurisdiction to grant Respondents? application for an order of interlocutory injunction in this suit in view of an earlier subsisting order of injunction made by the same Court in the same proceeding.
(2) Whether the lower Court was right to have ordered the grant of an interlocutory injunction in the terms contained in the Ruling of 17th November 1998.
In the Respondents? brief of argument, three issues were distilled
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for determination as follows:-
(1) Whether the lower Court had the jurisdiction to entertain an application to grant orders of injunction despite an earlier and subsisting order of injunction made in the same matter.
(2) Whether the Learned Trial Judge erred in law when he made an order of injunction against the 2nd Plaintiff in the terms contained in the Ruling.
(3) Whether the Learned Trial Judge erred in law by ordering the 2nd Plaintiff to pay into the Court all rents and monies collected on the property in dispute since 1992.
I am of the view that the two issues raised in the Appellants? brief will adequately resolve the complain in this appeal and I shall adopt same accordingly.
ISSUE 1
Dwelling on this issue, Learned Counsel for the Appellants relied on the case of POPOOLA VS BABATUNDE (2012) 7 NWLR (PT 1299) 302 to submit that the orders of Court remains binding and subsisting unless it is set aside by an appellate Court.
Reference was then made to the first Ruling of the Court delivered on 11-5-1990 by AKA J (deceased) and which Ruling was not appealed against by the Respondent and as such renders it valid and
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subsisting.
He added that inspite of that the Respondents? in a strange twist of events filed another application dated 2-2-1996 seeking for an interlocutory injunction against the Appellants in the same suit No LD/535/1990.
Learned Counsel referred to the prayers 2 and 3 sought in the said application by the Respondents which amounts to reversing the earlier decision of the AKA J of the same Court.
He asserted that once a trial Court delivered its judgment in a suit heard on the merit, it becomes functus officio and such suit cannot be revisited again by the same Court except for the making of ancillary orders such as order for stay of execution of the judgment or for instalmental payment of any judgment debt owed. The following cases were cited in support. KADUNA ILE MILLS VS OBI (1999) 10 NWLR (PT 621) 138; OYEFOLU VS DUROSINMI (2001) 7 SCNJ 108 or (2001) 16 NWLR (PT 738) 1; OBIORA VS C.O.P (1990) 7 NWLR (PT 161) 220 at 230.
It was further contended vide LIASU VS SALAMI (2012) 2 NWLR (PT 1283) 162 that the doctrine of issue estoppel applies in the instant case because a party is barred from relitigating on an issue already
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determined against that party in an earlier proceeding. Therefore, in so far as the first trial Judge (AKA J,) had heard and determined the issue of possession of the property and collection of rent by way of an interlocutory Ruling, the 2nd trial Judge (SEGUN J.) is bound by the doctrine of issue estoppel and as such cannot reverse a subsisting decision of a judge of the same Court.
After a review of the exceptions to the functus officio rule, Learned Counsel submitted that the lower Court erred in law by setting aside its own decision because the reasons for granting the interlocutory injunction of 17-11-1998 did not fall within any of the exceptions.
He added that if the Respondents were dissatisfied with the earlier decision of the Court, the proper mode of challenging same is by way of an appeal and not by filing the same application in the same Court because the lower Court has no jurisdiction to vary or reverse the order earlier made on the Ruling of 11-5-1990 or review same given that it is the duty of an appellate Court and not that of a Court of co-ordinate jurisdiction to review the decisions of another Court of equal standing, vide
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ADEYEMI-BERO VS OMOTOSHO (2008) 15 NWLR (PT 1111) 577 at 589.
He urges on this Court to resolve the issue in favour of the Appellant.
ISSUE 2
Herein, Learned Counsel for the Appellant analysed the principle guiding the grant or refusal of an application for interlocutory injunction and referred to the following authorities. A.G ANAMBRA STATE VS OKAFOR (1992) NWLR (PT 224) 396; OBEYA MEMORIAL SPECIALIST HOSPITAL VS A.G FEDERATION (1987) 3 NWLR (PT 60) 325 or (1987) 7 SCNJ 42.
He further contended that the Respondents herein are not Claimants in the suit in which they sought for interlocutory injunction. But granted that they counter-claimed in the suit their claim is for damages in the sum of N477, 350, for loss of personal belongings for which the Respondents sought to be preserved does not relate to the dispute properly.
?It was further submitted that the object of interlocutory injunction is not for awarding a Defendant a right which he will not be entitled to upon the final determination of the suit moreso that the counter-claim could be adequately taken care of by way of award of damages in the event of their claim succeeding.<br< p=””
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Learned Counsel therefore submitted that the decision of the lower Court ordering the 2nd Plaintiff to pay into Court all rents and monies collected on the property in dispute since 1992 was a legal impossibility because the Appellant had by the earlier order made by AKA J. been granted the right to collect rents and the Respondents restrained from the property. It follows that the subsequent order made by SEGUN J. on 17-11-98 ordering the 2nd Appellant to pay into Court all rents and monies collected on the property in dispute since 1992 to date amounts to a mandatory injunction which can only be granted under certain situations which includes, where the injury done to the Plaintiff cannot be sufficiently compensated for by way of damages. But in the instant case damages would have been an adequate compensation as opposed to an order of mandatory injunction as ordered by the lower Court.
He urged this Court to allow the appeal and set aside the decision of the lower Court made on 17-11-1998.
?Responding in their own issue (1) learned counsel for the Respondents referred to Order 39 Rules 12 and 14 of the High Court of Lagos State (Civil Procedure) Rules
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1972 to assert that the Court is empowered to make an order for the preservation of interim custody of the Res or order that the amount in dispute be brought into Court or otherwise secured. Further, that the ourt is empowered to order that monies be paid into account in the name of the Chief Registrar of the Court in the case where the Res is, or includes money.
On the purpose and essence of interlocutory injunction the following authorities were cited.
OGUNRO VS DUKE (2006)7 NWLR (PT 978)130; IDOZU VS OCHOMA (2006)4 NWLR (PT 970)364; ADEFARATI VS GOVERNOR OF ONDO STATE (2006)1 NWLR (PT 960) 145.
Also referring to the order made by the lower Court in its Ruling delivered on 17-11-98, learned counsel submitted that the lower Court acted within its powers and jurisdiction by granting an injunction against the plaintiffs because the order of injunction granted by a Court does not exhaust the jurisdiction to intervene if the interest of justice so demands.
On issue 2, learned counsel cited the case of OBEYA MEMORIAL SPECIALIST HOSPITAL VS AG FEDERATION (Supra) and TOTAL (NIG) PLC VS VICTORIA ISLAND ANDI IKOYI RESIDENTS ASSOCIATION (2004) FWLR
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(PT 231)1353 to submit that the Respondents met with the requirements to be considered for the grant of an interlocutory injunction. Firstly that they have shown via their pleadings that they have a legal right to be protected because they are contesting for ownership of the property in dispute. Secondly, that the Respondents will not be adequately compensated by an award of damages, vide AKAPO VS HAKEEM HABEED (1992)6 NWLR (PT 247)291. Moreso, that the reliefs sought in their counter claim are mostly declaratory in nature.
Thirdly that the balance of convenience tilts in favour of the Respondents as the Appellants are in possession of the property in dispute, enjoying the use and collecting rent without remitting same to the Court.
On issue 3, learned counsel submitted that where the subject matter is monetary, the best option for the Court is to order and direct that the sum in contention should be paid into an interest yielding account in the name of the Chief Registrar as held in MOBIL PRODUCING UNLIMITED VS UDO (2008) ALL FWLR (PT 421)951 AT 962. Therefore the lower Court was right to order that all rents and monies generated from the property
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at 2B Degema Close, GRA, Apapa should be paid into an account until the suit is finally determined and which order was made after its earlier decision Coram Aka J. in the same matter.
He added that the latter order did not infringe upon the earlier decision, but only seeks to achieve its preservative purpose in view of supervening events such as the timeous hearing of the main suit which the Appellants have deliberately delayed by seeking numerous adjournments in a bid to frustrate the Respondents while they continue to collect rent from the property.
This Court was then urged to resolve the issues in favour of the Respondents and dismiss the Appeal.
The Appellants reply is contained in pages to 6 to 12 of the Appellants Reply brief filed on 17-11-15 and deemed properly filed on 12-2-2016.
Responding therein on the Respondent?s issue 1, learned counsel for the Appellants submitted that Order 39 Rules 12 and 14 and the cases cited in support by the Respondents are not relevant to the issue in contention which is whether a Court has jurisdiction to sit as an appellate Court over the decision of a Court of co-ordinate jurisdiction and
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which this Court and the Supreme Court have held to be wrong and invalid. The following cases were cited in support. NATIONAL HOSPITAL, ABUJA VS NATIONAL COMMISSION FOR COLLEGES OF EDUCATION (2014)11 NWLR (PT 1418)309 AT 334; AGHENGHEN VS WAGAORE GHOR (1974) NSCC 20 at; AKPOFURE VS OKEI (1973)12 SC 137; UTUK VS OFFICIAL LIQUIDATOR (2009) ALL FWLR (PT 475) 1774 at 1789; UKU VS OKUMAGBA (1974)1 ALL NLR (PT 1)475; AMANAMBU VS OKAFOR (1966)1 ALL NLR 205 at 207 and ONWUKA VS MADUKA (1998)4 NWLR (PT 545)344 at 355.
On issue 2, learned counsel pointed to the fact that if issue 1 is resolved against the Respondents, issue 2 becomes an academic exercise. Alternatively, it was submitted that before the Court can exercise its discretionary powers in granting an application for injunction or making any order, it must satisfy itself that it has the jurisdiction to do so. In this regard the authorities cited by the Respondents on the principle guiding the grant of injunction are not applicable or necessary for consideration in this case.
On the guiding principle for a Court to assume jurisdiction to hear a matter, the following cases were referred to MADUKOLU VS
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NKEMDILIM (1962) ALL NLR (PT 2) 581 at 589. JEV VS IYORTYOM (2014)14 NWLR (PT 14 28)575 at 611; AMOBI VS NZEGWU (2014)2 NWLR (PT 1392)510.
On issue 3, learned counsel submitted that the lower Court was wrong to have ordered the 2nd Appellant to pay into Court all rents and monies collected on the property in dispute since 1992 because the 2nd Appellant had already been granted an order to collect the rents vide the order made in the Ruling delivered by Aka J. in 1990. Furthermore, an order of injunction cannot be made as a remedy for a completed act. Therefore by the subsequent order of the lower Court made on 17-11-1998, it amounts to sitting on appeal over a decision of a Court of co-ordinate jurisdiction and no Court has the luxury of such exercise of power. This Court was then urged to resolve all the issues in favour of the Appellant and to allow the Appeal.
On issue one, which is whether the lower Court had jurisdiction to grant the Respondents application for an order of interlocutory injunction in this Suit in view of an earlier subsisting order of injunction made by the same Court in the same proceeding?
?Authorities abound to the
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effect that a Court of concurrent or co-ordinate jurisdiction cannot sit on appeal or review the decision of the other. In other words a Court of co-ordinate jurisdiction does not have the requisite jurisdiction to set aside the judgment or ruling of another Court of the same jurisdiction. See UKU VS OKUMAGBA (1974)1 ALL NLR (PT 1) 475; MRS CLEMENT VS IWUANYANWU (1989)4 SCNJ (PT 11)312. AMANAMBU VS OKAFOR (1966)1 ALL NLR 205; In AYOADE VS EXECUTIVE GOVERNOR OF OSUN STATE & ORS (2015) LPELR (24274) CA this Court emphasized that the doctrine of Stare decisis admits as settled law that where a Court of co-ordinate jurisdiction has stated the position of the law in relation to an issue in dispute, the decision will be binding not only on lower Courts but other Courts of co-ordinate jurisdiction. In GWARZO VS MOHAMMED (2012) LPELR (22375) CA, it was further held that when a Court makes an order, no matter how unorthodox and unconventional, irrespective of whether or not the trial Judge was right in making it, such order remains binding and subsisting until it is set aside on appeal. Therefore a Court does not have the liberty to ignore an order which is still
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subsisting until it is set aside. Also in NLMBL LTD VS UBN LTD (2004)12 NWLR (PT 888)599 the Supreme Court was of the stance that for a Federal High Court to proceed to make orders that strike violently at the heart of the order of a State High Court of well known coordinate jurisdiction is to lend a helping hand in causing confusion in our Courts by purporting unwittingly to appear to sit on appeal over the decision of the State High Court. See further the case of SEAMARINE INTERNATIONAL LTD VS AYETORO BAY AGENCY & ORS (2015) LPELR (24785) CA.
It is therefore a settled law that a Court cannot sit on appeal over a Court of coordinate jurisdiction by way of review, setting aside or altering the scope and nature of the decision reached or order earlier made by the same Court. See ORJI VS ZARIA INDUSTRIES LTD (1992)1 NWLR (PT 216) 124; OREWERE VS ABIEGBE (1973)8 NSCC 479.
In the instant case, sequel to writ of Summons and statement of claim filed on 20-3-90 the Appellants herein, as plaintiffs in the lower Court also filed a motion an notice seeking:-
?An order of interlocutory injunction restraining the Defendant, his servants, agents,
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and/or privies from entering upon, remaining and or interfering in any manner whatsoever with the premises known as No.2B Degema Close, G.R.A Apapa the subject matter of this Suit pending the determination of this Suit.?
The 1st Respondent as Defendant filed a 23 paragraph counter affidavit to challenge the Application and after hearing arguments from the parties, the lower Court Coram. Aka J. (deceased) in a considered Ruling delivered on 11-5-1990 held inter alia as follows:-
This Court considers that in this Action
a) The Defendant has not been in lawful possession but forceful control of the premises before the interim injunction on 22nd day of March 1990; while.
b) The 1st Plaintiff has been in lawful physical possession all the time and until possession is handed over to the 2nd Plaintiff who put the 1st Plaintiff in possession, the defendant could not have been in lawful possession. (See Exhibit NC2- the Lease of Deed).
Since the Defendant has not been in lawful possession and to avoid any show of arms, the Court considers the balance of Convenience in favour of the Plaintiffs and it is better to maintain the status quo.
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i.e.
(i) 1st Plaintiff still in physical possession waiting to handover,
(ii) 2nd Plaintiff waiting for reversion.
(iii) Defendant waiting for the determination of the suit.
(iv) There is no Third Party.
The grant of an interlocutory injunction is a remedy that is both temporary and discretionary and in view of the fact that there are serious questions to be tried and that the balance of Convenience is in favour of the Plaintiffs, this Court hereby grants the interlocutory injunction restraining the defendant, his servants, agents and/or privies from entering upon, remaining and/or interfering in any manner whatsoever with the premises known as No. 2B Degema close GRA Apapa.?
Six years later and precisely on 2-2-96, the Respondents as defendants/Counterclaimants filed another motion on notice praying the Court for the following reliefs:-
1. An Order of interlocutory injunction restraining the 2nd Plaintiff, his servant, agents and/or privies from preventing, molesting, harassing and disturbing the 1st Defendant?s visitors and business associates from entering through the main gate leading to the three dwelling
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houses known as Nos. 2, 2A and 2B Degema Close, G.R.A., Apapa, Lagos, the subject-matter of this suit pending the hearing and determination of this suit,
2. An Order appointing the Chief Registrar of this Court to collect and pay into Court all rents and monies from the property in dispute at 2B, Degema Close, G.R.A., Apapa until the final determination of this suit;
3. An Order compelling the 2nd Plaintiff to pay into Court all rents and monies collected on the property in dispute at No. 2B, Degema Close, G.R.A. Apapa, from 1st August, 1992 to date;
4. An Order for the accelerated hearing of this suit, and
5. Such further and/or other order(s) as this Honourable Court deem to make in the circumstances.
A number of counter affidavits and reply affidavits were exchanged and after taking arguments from both parties the lower Court now presided over by Segun J. delivered a another considered Ruling on 17-11-98 wherein he held inter alia as follows:-
?I share the view of Aka J. in his ruling of 11th May, 1990 that both parties in this action have something to hide from this Court which is not divulged within the four walls of
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this citadel. The application herein succeeds.
An order of interlocutory injunction is hereby granted restraining the 2nd plaintiff, his servant, agents and/or privies from preventing, molesting, harassing and disturbing the 1st defendant?s visitors and business associates from entering through the main gate leading to the three dwelling houses known as Nos. 2, 2A and 2B Degema Close, G.R.A. Apapa, Lagos pending the hearing and determination of this suit.
The Chief Registrar is hereby appointed to collect and pay into Court all rents and monies from the property in dispute at 2B, Degema Clo0se, G.R.A., Apapa until the final determination of this suit.
The 2nd plaintiff/respondent is also ordered to pay into Court all rents and monies collected on the property in dispute at No. 2B, Degema Close, G.R.A. Apapa from 1st August, 1992 to date.
An order of accelerated hearing of the suit is hereby granted. There is no order as to cost.?
A careful perusal of the two Rulings shows clearly that the latter one delivered by SEGUN J on the application of the Respondents as defendants in the lower Court amounts to nothing else but a
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review or even setting aside of the Ruling of 11-5-90 delivered by the same Court but CORAM AKA J.
Placing the subsequent order of interlocutory injunction side by side with the first one indeed spells confusion and crisis as it gave room to uncertainties about which order to obey and comply with and in what manner they are to be enforced. The Order made in the subsequent ruling delivered by SEGUN J. on 17-11-98 no doubt contradicts and sets aside the order made by Aka J. on 11-5-90 and this is the situation frowned upon in a number of authorities given the fact that there is no exceptional circumstance that would warrant a Court to absent mindedly sit on appeal in a Ruling of a Court of the same co-ordinate jurisdiction instead of advising the applicants to appeal against the earlier Ruling if they found it unsatisfactory.
The Supreme Court while addressing a similar situation in NIGERIA INTERCONTINENTAL MERCHANT BANK LTD VS UNION BANK OF NIGERIA (2004)18 NSCQR (PT 1)134 at 147 held inter per PATS-ACHOLONU JSC as follows:-
?Now there is no doubt that the two Courts, in this case, of co-ordinate jurisdiction became siesed of the same
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subject matter in which it must be made absolutely clear, made orders which from whatever or however any one may look and try to sythesise or analyse them, pitted against each other. In that case the protagonists, id est, the legal combatants would inevitably be put in the quandary as to which order would prevail or be obeyed. It is I believe, in elegant and a matter that would go against the grain of our procedural law for Courts of co-ordinate jurisdiction instead of endeavouring to shore up the jurisdiction of each other engage in a form of unsavory competition. They ought necessarily avoid a situation where the Court by its being less cautious exposes itself by the nature of the order it makes, to ridicule and the majesty and aura of its pronouncements are either compromised or treated with ignominy as a non issue by the confused parties and I dare say, by the common citizenry.?
At page 148 of the Report his lordship further observed and posited as follows:-
?I fail to see the exceptional circumstance that would warrant a Court to naively appear to sit on appeal in a Ruling of a Court of the same co-ordinate jurisdiction. The
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institution of the two Court?s is not meant that they should be perpetually at war but to stand shoulder to shoulder in order to realize the intention and wisdom of the eminent men, jurists, political Scientists and other people of great learning and intelligence who gave us the Constitution. Where counsel for different parties to a matter either due to overzealousness to comply with the dictates of their clients or cause sheer nuisance by the nature of proceedings they foist on the Courts which are likely to bring them to ridicule, it behooves on the Courts, particularly the latter one which the proceedings in the same subject matter were entertained in the fact Court to exercise utmost caution.?
The above set out stance of the Supreme Court is quite apt to the present case where two orders for interlocutory injunction have been made against each of the parties in the suit via two different Rulings of the same Court by two different judges. It becomes rather lugubrious given the fore-knowledge of the first Ruling by the Judge who made the subsequent order. It is my humble view that where a Court is prayed to make an order that is
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diametrically opposed or in conflict with a subsisting order of another Court of co-ordinate jurisdiction in the con of the same subject matter and where the prayers are seemingly identical, it would be most appropriate and rational to refuse such prayers and advice the applicants to do the needful either by way of applying to set aside the said Ruling armed with the requisite ingredients for such application or to resort to an appeal to a higher Court for a revisit and have such Ruling set aside. Otherwise the order made in the first Ruling remains unchallenged and subsisting until altered by an appellate Court. See DURBAR HOTELS PLC VS ABELLA ITYOUGH & ORS (2010) LPELR (4064) CA.
It is therefore not within the powers and competence of the same Court (though presided over by another Judge) to revisit, ignore, alter or set aside the subsisting order of the Court made upon a formal application by a party in the suit.
This is based on the position of the law that the said Court has become functus officio of the Ruling wherein the order of injunction was made and the only possible option is for the aggrieved party to seek a redress in the
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Appellate Court.
Once an issue has been raised and determined by the Court between the litigating parties, the Court becomes functus officio to revisit the same issue again. See NNAJIOFOR VS OKONU (1985)2 NWLR (PT 9)686. In SANUSI VS AYOOLA (1992) 11-12 SCNJ 142, the Supreme Court per Karibi Whyte JSC put it this way:-
?There is the well settled elementary and fundamental principle that a Court on disposing of a cause before it renders itself functus officio. It ceases to have jurisdiction in respect of such case. See EKERELE VS EKE (1925)6 NLR 18, AKINYEDE VS THE APPRAISER (1971) ALL NLR, 162. It cannot assume the status of an appellate Court over its own decision, except there is statutory power to do so.?
Consequently, with the subsistence of the Ruling delivered by Aka J. on the 11-5-90 in Suit No. LD/535/1990 wherein an order of interlocutory injunction was made against the Respondents, the subsequent Ruling delivered by SEGUN J. on 17-11-98 granting another order for interlocutory injunction was definitely made without jurisdiction.
?The Ruling of 11-5-1990 was made to subsist till the hearing and determination of the
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substantive suit and it so remains until set aside by the appellate Court. This issue is accordingly resolved in favour of the Appellants.
Having so held that the order made in the Ruling delivered on 17-11-1998 was without jurisdiction. It no doubt determines this appeal and makes a further step into issue 2 an unnecessary academic exercise.
On the whole this appeal is found to be meritorious and it is accordingly allowed. The Ruling of SEGUN J. delivered on 17-11-1998 is hereby set aside for want of jurisdiction.
Given the age and circumstances of this case filed since 1990, a specific order is hereby made directing the Chief Judge of Lagos State to ensure that the substantive suit is given accelerated hearing.
Parties to bear their costs.
Other Citations: (2016)LCN/8813(CA)
