Alhaji Kawule Abubakar & Ors V. Jos Metropolitan Development Board & Anor (1997)

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EDOZIE, J.C.A. 

By a motion on notice dated 30th May, 1997 filed in the registry of this court on 2nd June, 1997, the applicants prayed for the following orders:

“1. directing the respondents to rebuild and restore to the applicants, the applicants’ stalls which were situate at the premises known as Yan Soso at the Laranto Market Jos which stalls were unlawfully destroyed by the respondents pending the determination of the appeal herein;

2. restraining the respondents from interfering with the applicants’ right to occupy the said premises pending the determination of the appeal herein AND such further orders as the Honourable Court may deem just.”

The motion is supported by a 15 point affidavit and 9 Exhibits. In opposition thereto, the respondents on 11th June 1997 filed a counter-affidavit of 6 paragraphs.

As can be garnered from the affidavit evidence and the accompanying exhibits, the facts of the case giving rise to the application may be summarized as hereunder:

The eleven applicants claim to be representatives of the Plateau Traders and Marketing Association Laranto Market Branch Jos. Prior to the incident giving rise to this case, they were carrying on their trading in market stalls or shops numbering about 193. The shops were located at the section of Laranto Market, Jos described as ‘Yan Soso’ hereafter referred to as the premises in dispute. They were put on the premises in dispute in 1976 by the then Jos Native Authority following an outbreak of fire which in 1974 gutted Jos main market. The applicants erected stalls on the disputed premises at their own expense and had been occupying the stalls and paying rates, levies and taxes to the Jos Native Authority now known as Jos North Local Government Council. It is the applicants’ case that by a quit notice dated 29th August, 1996. (Exh. 1) issued by the 1st respondent and served on them, they were ordered to quit the premises in dispute within 24 hours on the ground that their occupation thereof was illegal. According to the applicants, the 1st respondent in issuing Exh. 1 purported to act on behalf of Angona Nigeria Limited, a private liability company that claims to have acquired the land from an alleged radical owner. In reaction, the applicants by a writ of summons (Exh. 2) sued the respondents to challenge the ejection notice. Subsequent thereto, the applicants by a motion No PLD/J472m2/96 filed in the court below applied for an interim injunction to restrain the respondents from evicting them from the premises in dispute pending the determination of the substantive suit The said motion was on 17th September 1996 dismissed by Dangban J in a ruling (Exh 4) which he concluded thus: “Accordingly I rule that although the applicants have filed (sic) to move the court to uphold their application, it is hereby ordered that the respondents allow fourteen clear days from today to enable the applicants move their belongings from the disputed cite (sic) to another cite (sic) for save (sic) keeping pending the determination of their substantive suit.”

Dissatisfied by the above ruling, the applicants as per motion Exh 3 filed in the court below on 27/9/96 sought an order for stay of execution and in addition appealed against the said ruling vide the notice of appeal Exhibit 5.

Paragraphs 9 to 14 of the supporting affidavit complete the rest of the applicants’ case. The paragraphs read as follows:

“9. While the said motion for stay and the appeal were yet to be heard, the respondents brought before the trial court a notice of preliminary objection to suit No. PLD/J472/96 and on 25/4/97 the trial court ruled allowing the said preliminary objection and dismissed the suit

A copy of the preliminary objection and of the ruling thereon are herewith attached as Exhibit 6 and 7 respectively.

10. On the same said 25/4/97 that the trial court dismissed the said suit the applicants through their counsel Mr. Chris Abashi filed a motion on notice seeking a stay of execution of the ruling of the same date pending an appeal which he intended to file against the said ruling which appeal was filed on 19/5/97. Copies of the motion and the notice of appeal are attached herewith and called respectively exhibits 8 and 9 respectively.
11. After the ruling of 25/4/97 and after being served exhibit ‘7’ before close of work on that day the respondent entered the premises at 5 pm with several carpenters under the marshall of fully armed mobile policemen and destroyed the shops and goods of the applicants.
12. The applicants have not been able to carry on their normal trading occupation since their shops were destroyed and trading is the applicants’ only means of livelihood.
13. The loss of income which the applicants have suffered on account of the destruction of their stalls have occasioned great hardship on the applicants as they now find it difficult to feed themselves and their families.

Exhibit 7 referred to in paragraph 11 of the supporting affidavit supra is the ruling of the court below whereby Naron J in upholding the respondents’ preliminary objection and dismissing the applicants’ suit concluded thus:

“I have held that the preliminary objection succeeds on grounds 2 and 3 and dismissed the suit in its entirety. There is nothing left to be done in the matter. If the defendants had intended to eject the plaintiffs from the said premises, there is nothing that prevents them from doing so now and I do hereby so direct.”

Apparently it is on the strength of that directive that the respondents evicted the applicants who have reacted by bringing the instant application.

For their part, the respondents in their counter-affidavit stated, inter alia, that the applicants had no title to the disputed premises which they occupied illegally; that the applicants’ goods and materials were not damaged as they were allowed to remove them to an alternative site provided for them by the Jos North Local Government Council for carrying on their business.

When this application came up for hearing on 11th June, 1997, learned counsel on both sides addressed us extensively. The gravamen of the applicants’ case was that after the lower court had dismissed their case on 25/4/97, they filed a motion for stay of execution the same day and have same served on the Attorney-General for the respondents and despite that the respondents went ahead to evict the applicants from the disputed property. Mr Chris Abashi for the applicants referred to the case of Governor of Lagos State v. Emeka Ojukwu (1986) 1 NWLR (Pt. 18) 621 (I986) 1 All NLR 233 and submitted that when parties have submitted their dispute to the court for adjudication neither party should resort to self-help. In her response, the leading counsel for the respondents Mrs Fwangohi; the Director for Civil Litigation, Ministry of Justice, Jos submitted that as at 25/4/97 when the applicants were evicted from the disputed premises, there was no pending appeal against the ruling of the court below dismissing the applicants’ substantive suit. She further submitted that Exhibit 5 not having been filed with the leave of the court was not a valid notice of appeal. She contended that until the main appeal is determined in favour of the applicants, prayer one of the application cannot be entertained. In respect of prayer 2, it was contended that having regard to the considerations for the grant of an injunction, the prayer cannot be granted in that an injunction cannot be granted in respect of an act that had been completed; the applicants’ affidavit did not disclose a triable issue nor any irreparable injury to the applicants nor could the applicants show that the balance of convenience is in their favour.

Several authorities were cited in support of the above submissions. In his further submissions Mr Abashi for the applicants contended that the notice of appeal Exh. 5 was valid as it raised grounds of Law and therefore did not require the leave of the court. On the contention that an injunction is not available for a completed act, counsel argued to the contrary and cited the case of Ojukwu supra in support. Finally, he submitted that the balance of convenience is in favour of the applicants.

I consider it appropriate to approach this matter by first considering the preliminary question as to whether this court is vested with the jurisdiction to entertain the application on hand. It is well settled that the issue of jurisdiction is fundamental to the question of the competence of the court making any order or giving a decision and therefore the issue must first be determined. It is also well established that a court is not only entitled but bound to put an end to the proceedings if at any stage and by any means it becomes manifest that they are incompetent. This is so because decisions given without jurisdiction amount to a nullity no matter how well the proceedings were conducted or that the decisions were given in the interest of justice: See Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt. 55) 179, Barclays Bank Ltd. v. Central Bank of Nig. (1976) 6 SC 175.

The court can on its own initiative raise the question of its jurisdiction even though the parties have failed to do so because mere acquiescence does not confer jurisdiction: See Onyema v. Oputa (1987) 3 NWLR (Pt 60) 259; Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377; Attorney-General of the Federation v. Sode (1990) 1 NWLR (Pt 128) 500.

In determining whether this court has the jurisdiction to entertain the applicants’ application, I bear in mind the provisions of section 219 of the Constitution of the Federal Republic of Nigeria 1979 (as amended) – Cap 62 Laws of the Federation of Nigeria 1990. The section provides thus: “219 Subject to the provisions of this constitution, the Federal Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, High Court of a State, Sharia Court of Appeal of a State and Customary Court of Appeal of a State.”

It is manifest from the above provision that the jurisdiction of the Court of Appeal is purely appellate and not original. In the case in hand it is evident that the present application had not been made to the lower court for it to express an opinion thereon before it was brought to this court. In a situation not too dissimilar, in the case of Attorney-General Anambra State v. Okafor (1992) 2 NWLR (Pt 224) 396 at page 429, the Supreme Court, per Nnaemeka-Agu J.S.C. observed thus:

“In the case of Chief lman Y.P.O. Shodeinde and ors v. Registered Trustees of the Ahmadiyya-Movement-In-Islam & Ors (1980) 1 – 2 S.C 163, this court made it clear that an application by unsuccessful plaintiff to restrain successful defendant from dealing with property in dispute pending the determination of the plaintiffs appeal was wrongly made in the first instance to the Federal Court of Appeal instead of the High Court. The Court of Appeal had no jurisdiction to hear and determine such an application as the proper forum for such an original motion was for the High Court. I feel entitled to take notice of the fact that the jurisdiction of the Court of Appeal is entirely appellate (see section 219 of the 1979 Constitution) …………………….

So, no matter how one looks at it, there is no room for an invocation of the principle in Ojukwu’s case (supra),”

Applying the above principle, since the applicants’ substantive suit had terminated with its dismissal on 25/4/97, the applicants’, original motion to this court for injunctive reliefs as prayed is incompetent as this court has no jurisdiction to entertain same.

Should I be in error in holding that the applicants’ application does not fall within the ambit of the jurisdiction of this court, it seems to me that even on merit, the application lacks substance. The application is for an order of injunction. One of the main classifications of injunction relevant to the case in hand is the classification into prohibitory (Restrictive) and mandatory injunctions. An injunction restraining the continuance of some wrongful act is called prohibitory or restrictive. An injunction to restrain the continuance of some wrongful omission or to do a particular act or thing is called mandatory. The reliefs sought by the applicants had earlier been set out but at the risk of repetition but for ease of reference I will repeat them hereunder as follows:

“1. directing the respondents to rebuild and restore to the applicants the applicants’ stalls which were situate at the premises known as Yan Soso at the Laranto Market Jos which stalls were unlawfully destroyed by the respondents pending the determination of the appeal herein.

2. restraining the respondents from interfering with the applicants’ right to occupy the said premises pending the determination of the appeal herein”

The first relief sought for in the above application is a mandatory injunction. A mandatory injunction is grantable even though the act sought to be restrained has been nearly or entirely completed before the action is begun Holmes v. Upton (1840) 9 Ch App 214: See Halsbury’s Laws of England 4th Edition Vol. 24 paragraph 950. The power of the court to grant a mandatory injunction must like in every injunction, be exercised with the greatest possible care. Some of the circumstances in which mandatory injunction may be granted are:

1. Where the injury done to the plaintiff cannot be estimated and sufficiently compensated for by damages.
2. Where the injury to the plaintiff is so serious and material that the restoration of things to their former condition is the only method whereby justice can be adequately done: Kelk v. Pearson (1871) 6 Ch App 809.
3. Where the injury complained of is in breach of an express agreement: Me Manus v. Cooke (1887) 35 Ch D 681.
4. Where the defendant attempts to steal a match on the plaintiff such as where, on receipt of notice that an injunction is about to be applied for the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed: Daniel v. Ferguson (1891) 2 Ch.D 27.

See paragraph 947,948 Halsbury’s Laws of England supra, Central Bank of Nigeria v. Universal Trust Bank of Nigeria Ltd (1996) 4 NWLR (Pt 445) 694. The crux of the applicants’ case is that their market stalls at Yan Soso in Laranto Market were destroyed by the respondents. The applicants did not in their supporting affidavit state that the damage to their stalls cannot be estimated and compensated by damages nor have they deposed to facts to bring their case within any of the principles stated above for the grant of mandatory injunction. That being the case, the remedy of mandatory injunction prayed for in the first relief of their motion is not available to them; so too is the second prayer which is ancillary to the first.

There is yet another dimension to this case. In the ruling of 25th April, 1997, (Exh 7) on the preliminary objection by the respondents to the applicants’ substantive suit, the court below dismissed the applicant’s action. Although an appeal has been lodged to this court by the applicants against the ruling, the decision is still subsisting. The judgment of a lower court on appeal is presumed to be right or correct and remains valid until set aside: See Chukwunta v. Chukwu 14 WACA 341; Antia v. Asuquo (1990) 5 NWLR (Pt. 151) 446. The implication of the dismissal of the applicants’ case is that they have no interest in the subject-matter of the case, that is the stalls in question. It is trite law that for a plaintiff to obtain an injunction and indeed any equitable relief he must show some property, right, or interest in the subject matter of his complaint: Maxwell v. Hogg (1866-67) 2 Ch. App 307 at 311. In the face of the subsisting ruling of the court below whereby the applicants’ action was dismissed, it goes without saying that the reliefs sought by them in this application are misconceived.

In the light of the foregoing, this application is premature and is refused. It is struck out but with no order as to costs.

Other Citations: (1997)LCN/0337(CA)