Dr. Christian Nwachukwu Okoli V. Dr. Godwin Duru & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.C.A.
on 27th February 2006, we heard arguments from counsel in respect of two applications. The two notices of motion emanated from Dr. Godwin Duru’s appeal. The first application, filed on 31st October 2005, is at the instance of Dr. Godwin Duru. The second application dated 4th February 2006 and filed on 23rd February 2006, is at the instance of Dr. Christian Nwachukwu Okoli, the first respondent in the appeal filed by Dr. Duru.
In his application, Dr. Godwin Duru prayed this court for:
“An order setting a side the swearing-in of the 1st respondent by the 7th respondent as chairman, Aba south Local Government council, Abia state which was carried out on Wednesday 26th October 2005 after the service on the 1st, 6th and 7th respondents of the appellant/applicant’s motion dated 24th october 2005. And for such further or other orders as this honourable court may deem fit to make in the circumstances.”
On his part, Dr. Christian Nwachukwu Okoli asked of us:
“An order setting aside the Notice of appeal dated and filed on the 14th day of October 2005, the motion on notice dated 24th October 2005 praying for departure from the Rules etc and the motion on notice dated 3rd day of October 2005 praying for an order setting aside the swearing-in of the 1st Respondent/Appellant as executive Chairman of Abia-South Local Government Council.”
The foregoing relief is canvassed on the grounds that:-
“Ex facie, the processes, the appeal is an appeal against the judgment of the High court of Abia state which is the Appeal court and the final court in Local Government Election cases in Abia State.”
The two applications were taken together with counsel to Dr. Christian Nwachukwu heard first. Dr. Nwachukwu questions the jurisdiction of this court. His position is that in the absence of a competent appeal, the court lacks the jurisdiction to grant the interlocutory reliefs asked it by Dr. Godwin Duru. Arguments in respect of Dr. Duru’s application were then subsequently taken. For ease of reference, Dr. Christian Nwachukwu-Okoli and Dr. Godwin Duru will henceforth in this ruling be referred to as 1st respondent/applicant and appellant/applicant/respondent respectively. 2nd – 7th respondents in the substantive appeal are also respondents and to the two applications.
1st respondent/applicant’s application is supported by a seven-paragraph affidavit.
In moving the application, learned counsel relied on the entire paragraphs. He argues that the appeal filed by the appellant is against the decision of the Abia State High court. By virtue of Section 186 (1) of the Abia State Local Government Law Cap 9 of 2002, the court is vested with final jurisdiction in local government election matters. Counsel submits that no process can lawfully be used to thwart the decision of the Abia State High Court in the capacity it sat and determined the matter between the parties thereat. Learned counsel referred to ground one in appellant/applicant/respondent’s notice of appeal and submits that what the complaint in the ground sets out to achieve is to relitigate a matter that had been finally disposed of by the Abia State High Court sitting as a final court in respect of election matters. Counsel relied particularly on Ezeobi Okpala v. Prince Anthony Chizoba Ezeani & 4 Ors (1999) 4 NWLR (Pt 598) 250 and urges that their application be granted.
Mr. Nwachukwu learned Principal State Counsel for the 2nd – 7th respondents to the application associated himself with the submissions of learned counsel to the 1st respondent/applicant. He reinforces their position by further citing and relying on the decision in Awuse v. Odili (2004) FWLR (Pt 193) 325 at 335-336. Counsel also urges that appellant/applicant/respondent’s appeal and all the other processes hinging on same be set aside. All, it is argued, are incompetent.
Appellant/applicant did not file any counter-affidavit in opposition to the facts deposed to in support of 1st respondent’s application. Learned senior counsel responded purely on grounds of law. He submits that appellant’s application to set aside the swearing-in of the 1st respondent hinges on the appeal against the decision of the Abia State High Court presided by Kalu J. and delivered on 14/10/05. The jurisdiction being exercised by Kalu J. is an original jurisdiction pursuant to S.46 of the 1999 Constitution. Appeal against such a decision is, senior counsel further argues, by virtue of Section 241 of the Constitution, as of right. Section 186 (1) of the Abia State Local Government Law No.9 of 2002 which vests final jurisdiction in local government elections matters in the State High Court has nothing to do with the court’s original jurisdiction under Section 46 of the Constitution. In the event of any inconsistency between a State legislation and the Constitution, senior counsel contends, the later will prevail to the extent of such inconsistency. Counsel finally submits that the decision in Awuse v. Odili (supra) does not avail the 1st respondent since the decision pertains the jurisdiction of the Court of Appeal under Section 246 of the Constitution. Senior counsel urges that 1st respondent’s application be dismissed. He then proceeded to argue appellant’s application for mandatory injunction to set-aside 1st respondent’s swearing in by the 7th respondent
Appellant’s application is supported by a seventeen paragraph affidavit sworn to by the applicant himself. Five documents are annexed to the supporting affidavit. Reliance is placed on particularly paragraphs 2 – 15 of the affidavit and the annexure.
Learned senior counsel argues that once parties have submitted their dispute to a court and one of the parties seeks an injunctive order, the party being sought to be restrained must wait for the outcome of the application before taking any step in respect of his act being sought to be restrained. He submits that it is of the same age-old principle that if the party sought to be restrained does otherwise, the court has a duty to invoke its disciplinary jurisdiction to reverse the act or step done or taken irrespective of the substantive case. Counsel relies on Ezeogbu v. FATB (1992) 1 NWLR (pt 220) 724; Okoya v. Santili (1991) 7 NWLR (pt 206) 753; see Iwo L.G. V. Adigun (1992) 6 NWLR (Pt 250) 723 at 750 and most particularly Abubakar v. Unipetrol PLC (2002) 8 NWLR (pt 769) 242 at 251 -252.
Learned senior counsel further argues that appellant/applicant has complied with Order 3 Rule 3 of this court as the further affidavit in support of their application and the annexure to it show. The same rule also envisages that where a similar application had been refused the party sought to be restrained should wait for fifteen days before executing. Relying on Union Bank of Nigeria Ltd v. Fajebe Food and Poultry Farms & Anor (1994) 5 NWLR (pt 344) 320 at 345 learned senior counsel urges that appellant’s application be granted and 7th respondent swearing in of the 1st respondent be set aside.
Responding, Okoli learned counsel for the 1st respondent/applicant relied on their eighteen paragraph counter-affidavit along with its two annexure. He contends that learned senior counsel’s arguments overlooks the import of Section 16 of the Court of Appeal Act. The fact remains that at all times material to this application the appellant/applicant has no locus to seek the reliefs he does. Election petition, it is further argued are Sui generis. The instant application and indeed the appeal upon which it hinges are applicant’s way of truncating the decision of the election appeal tribunal. Counsel commends the decision in Buhari v. Obasanjo (2003) 17 NWLR (pt 850) 587 at 623 in support of his contention. Counsel further argues that Section 46 of the 1999 Constitution must be read in conjunction with Section 7 (1) Section 197 and item 22 of the 2nd Schedule of the Constitution. If justice is to be made to the parties to this application, Abia State having lawfully legislated on local government election petitions and conferred final jurisdiction to the state High Court sitting on appeal over these petitions, the lower court was in no position to grant the appellant/applicant the injunction he sought. Same application before this court on the authority of AG Abia v. AG Federation (2002) 6 NWLR (pt 763) 264 must fail. Counsel urges that first their application for setting aside appellant’s appeal and all other processes including his application for the grant of mandatory injunction be refused and dismissed.
It is pertinent to recall that a nineteen-paragraph counter-affidavit has also been deposed to on behalf of the 2nd – 7th respondents in opposition to appellant’s instant application. Mr. Nwachukwu of Counsel relied on these paragraphs. He associates himself with the submissions of 1st respondent’s counsel. He emphasizes that the lower court which lacked the jurisdiction to entertain appellant’s substantive matter was in no position to grant the injunctive order appellant/applicant sought from it. By Order 3 Rule 3 (3) of the Court of Appeal Rules, this court is empowered to make only such orders as the lower court had the jurisdiction of granting. Counsel relied on the decisions in Uzondu v. Uzondu (1997) 9 NWLR (pt 521) 460 at 480; Animashaun v. Lagos State (2002) 16 NWLR (Pt 793) 282 at 290 and Olalekosun v. Kwara State Government (1996) 1 NWLR (Pt 425) 453 and urges that 1st respondent’s application for the dismissal of appellant’s appeal be granted and appellant’s application refused as well.
Replying on points of law, learned senior counsel submits that the decision in Buhari v. Obasanjo which 1st respondent counsel seeks to rely upon does not apply to the facts of the instant case. The rationale for the decision is that a loser in an election cannot insist that the winner should not be sworn-in, as the stance would create vacuum. The appellant/applicant herein is however not only the successful party at the polls but has been duly returned. On the issue of non service of appellant’s notice of appeal and the application for mandatory injunction filed in this court on the respondents, learned senior counsel submits that by virtue of section 149 (d) of the Evidence Act, exhibits GD 34, GD 3B and GD 3C, in the absence of any evidence to the contrary, remain the only evidence of service of processes on the respondents. Senior counsel maintains that 1st respondent’s application is refused and appellant/applicant’s granted.
Now, the issues yearning for resolution in the two applications, the subject of the instant ruling must outrightly be defined.
1st respondent/applicant has asserted that appellant/applicant/respondent’s appeal is incompetent and that all other processes hinging on such an incompetent appeal are, by extension, incompetent. 2nd – 7th respondents to both applications have shared 1st respondent/applicant’s contention.
On the other hand, Appellant/applicant/respondent’s senior counsel has contended that 1st respondent’s assertion that the appeal on which appellant’s application hinges is incompetent is misconceived. He maintains that on the basis of his valid subsisting appeal and the material put before this court appellant/applicant is entitled to the discretion he seeks.
Who carries the day depends on our application of the relevant laws to available facts in our circumstance. These facts are as contained in the affidavit, further affidavit and counter-affidavits of parties for and/or against the two applications. Below is a summary of these facts.
The appellant/applicant and the 1st respondent on 27th March 2004 contested election into the office of the Chairman of Aba South Local Government Council in Abia State. They did so on the platform of their respective political parties. At the conclusion of polls, appellant/applicant was returned elected by the 5th respondent. Being dissatisfied with the return, 1st respondent petitioned the Abia State Local Government Council election petition tribunal. 1st respondent’s petition was dismissed and the return of the appellant/applicant by the 5th respondent affirmed by the election petition tribunal on 27th April 2005. 1st respondent’s appeal against the petition tribunal’s decision was upheld by the Abia State Local Government Election petition appeal court. This was on 27th September 2005. The appeal court was constituted pursuant to Section 186 (1) of the Abia State Local Government Law CAP 9 of 2002. The Appeal Court was also vested with final jurisdiction in respect of Local Government Election matters.
In the Abia state High court vide suit No. HU/176M/2005, the appellant/applicant sought leave of the court to apply for the enforcement of his fundamental right to fair hearing. In the fresh action, he contended that the Abia State Local Government petition appeal court was not established by any law as envisaged by Section 36 (1) of the 1999 Constitution. The ruling of the High Court dismissing appellant/applicant’s application for leave to enforce his fundamental right, delivered on 14/10/05, is exhibit GD1 annexed to the affidavit in support of his application for mandatory injunction. Appellant/applicant’s notice of appeal against the decision contained in exhibit GD1 is exhibit GD2 dated and filed on 14/10/05. The lower court per exhibit FGD -1 A dismissed appellant/applicant’s application for injunction and stay against the respondents pending the determination of appellant/applicant’s appeal on 21st October 2005.
Appellant/applicant renewed his application for stay of the lower court’s ruling of 14/10/05 in this court by his motion filed on 24/10/2005. His application for mandatory injunction, the subject matter of the instant ruling, is predicated on the subsisting facts in paragraphs 13 and 14 of the affidavit in support thereto. These read: –
“13. The application was served on the 1st respondent on 25th day of October 2005 at 8.00 am; on the 6th respondent on 25th October 2005 at 10.00 am and on the 7th respondent on the same 25th October 2005 at 10.30 am. Now produced and shown to me marked exhibit GD 3A -3C are certified true copies of the proofs of service respectively.
- Despite the service of the said application on the said respondents, the 7th respondent still proceeded to swear in the 1st respondent as Chairman Aba South Local Government council on Wednesday 26th October 2005.”
The word application in the foregoing is a reference to appellant’s further application to this court to stay the lower court’s ruling in exhibit GD1 and for interlocutory injunction against the 1st and 7th respondents. Learned senior counsel to the appellant/applicant is right in his submission that in the absence of any evidence controverting the foregoing averments, this court has no option than to accept and rely on them as being true. Indeed as learned senior counsel submitted, being the adverse parties, respondents, failure to specifically deny these paragraphs is fatal. The general traverse in their respective counter-affidavits never constitutes effective denials in law. Rather, they amount to admission of the very facts they fail to frontally confront and controvert. See Otto v. Mabanije (2004) 17 NWLR (Pt. 903) 489 CA; Bamaiyi v. State (2003) 17 NWLR (Pt. 348) 47 CA. Consequently, by virtue of exhibit GD 3A -3C, the 1st, 6th and 7th respondents must and are hereby deemed to have been served with appellant/applicant’s further application for the stay of the lower court’s ruling in exhibit GD1. It ceases to be a contested fact also that 1st respondent had been sworn in by the 7th respondent during the pendency of said application in this court. The two, having been served with the said application, are fully aware of its pendency.
Respondents have argued with tremendous gusto that appellant/applicant’s application for stay of the lower court’s ruling in exhibit GD1, the instant application of mandatory injunction and all other processes that hinge on appellant’s incompetent appeal are by extension all incompetent. They contend that the application cannot, therefore, be entertained by this court. One remains unconvinced. The contention is misconceived.
Section 46 (1) – (3) of the 1999 Constitution learned senior counsel for the appellant/applicant so passionately invoked as the source of appellant’s action must immediately be looked at. It provides: –
“46 – (1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
(2) Subject to the provisions of this constitution, a High court shall have original jurisdiction to hear and determine any application made to it in pursuance of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state of any right to which the person who makes the application may be entitled under this Chapter.
(3) The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purpose of this section.”
The foregoing clear and unambiguous legislation creates an aggrieved person’s right of action. It also confers special jurisdiction on the lower court, being a High Court of a State established under Section 270 of the Constitution, to hear and determine complaints in respect of the breach or threatened breach of rights specifically guaranteed under Chapter IV of the constitution. In the instant case, appellant/applicant had filed an application at the lower court seeking leave, as required by the rules of court made under Section 46 (3), for the enforcement of his right to fair hearing. The lower court declined jurisdiction and refused appellant/applicant the leave he sought. The court reasoned that the grant of such a relief would entail review of the decision of the Local Government Election Appeal Court, a court of coordinate jurisdiction. One agrees with learned senior counsel that the lower court’s refusal of appellant’s application for leave to enforce his fundamental right being a determination of the matter before it constitutes an appealable decision to this court by a combined operation of Sections 318, 240 and241 (i) (d) of the 1999 Constitution. The sections provide: –
“240. Subject to the provisions of this constitution, the Court of Appeal shall have jurisdiction to the of exclusion of any other court law in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja Sharia Court of Appeal of a state, Customary Court of Appeal of the Federal capital Territory, Abuja, Customary Court of appeal of a State and from decisions of a court martial or other tribunals as may be prescribed by an Act of the National Assembly.”
“241. (1) An appeal shall lie from decisions of the Federal High court or a High Court to the Court of Appeal as of right in the following cases –
(d) Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;”
“Section 318 – “(1) In this constitution, unless it is otherwise expressly provided or the con otherwise requires –
Decision means, in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation;”
Appellant/applicant’s appeal, by exhibit GD – 2 his Notice of appeal, is a complaint as to the correctness of the lower court’s decision adjudging his application to enforce his right to fair hearing incompetent. Only a determination of the appeal will provide an answer to this complaint.
Once a party has a valid subsisting appeal in this court, and appellant/applicant has so established, by the further inter play of Section 243 (b) of the 1999 Constitution, Sections 16 and 18 of the Court of Appeal Act as well as Order 3 Rule 3 sub rule 3 of the Court of Appeal Rules, the party is at liberty to seek any interlocutory relief for the preservation of the res pending the determination of such an appeal. The various legislations provide:
“Section 243. Any right of appeal to the court of Appeal from the decisions of the Federal High court or a High court conferred by this Constitution shall be –
(b) Exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.”
“Section 16. The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court, of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with powers of that court, or, in the case of an appeal from the court below in that court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction.”
(Underlining supplied for emphasis)
“Section 18. An appeal under this part of this Act shall not operate as a stay of execution, but the Court of Appeal may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of court.”
Order 3 Rule 3 Sub Rule “(3) where an application has been refused by the court below, an application for a similar purpose may be made to the Court within fifteen days after the date of the refusal.”
From the various legislations considered above vis-a-vis the materials appellant/applicant annexed in support of his applications for stay, interlocutory and mandatory injunctions, it is clear he has a valid subsisting appeal against the decision of the lower court. His applications, particularly the one to which the instant ruling relates, hinges on appellant/applicant’s valid subsisting appeal. The lot are valid too. See Olu of Warri v. Hon. Philip Nnaemeka-Agu (1994) 1 NWLR (Pt 319) 192 at 195-196; Mobil Oil (Nig.) Ltd v. Agadaigho (1988) NWLR (Pt 77) 383. Resultantly, 1st respondent’s application to set aside appellant/applicant’s appeal and all other processes including his instant application for mandatory injunction has failed. It is hereby dismissed.
What of appellant/applicant’s application for mandatory injunction? The pertinent question to answer is: does the appellant/applicant on the material he made available to this court merit the grant of the mandatory injunction he seeks? By this court’s decision per OGEBE, JCA as affirmed by Supreme Court in Abubakar v. Unipetrol supra, the application to reverse the swearing-in of the 1st respondent by the 7th respondent will succeed if that; step as taken is shown to have “stolen the match” on the appellant/applicant. The appellant/applicant needs to satisfy us inter-alia:
(a) That the swearing-in of the 1st respondent by the 7th respondent, appellant/applicant prays this court to reverse occurred during the pendency of appellant/applicant’s application for stay of the lower court’s ruling refusing to the appellant/applicant to enforce his fundamental right.
(b) That the act of the swearing in of the 1st respondent by the 7th respondent is capable of obstructing whatever orders this court might have made on the application for stay.
None of the counsel before us has suggested that the apex court’s grant of mandatory injunction to the appellant/applicant in Abubakar v. Unipetrol PLC supra ensued after the court’s exhaustive consideration of all the criteria the appellant/applicant herein has to satisfy before an indulgence is granted by this court. In the instant case what further criteria appellant/applicant needs to fulfill emerge on our consideration of respondent’s arguments against the grant of the injunction appellant/applicant seeks vis-a-vis the reasons for the refusal of appellant/applicant’s prayers by the lower court to stay its earlier ruling, GD1 and grant of interlocutory injunction.
Mr. Okoli learned counsel for the 1st respondent, has argued with relish that this court lacks the jurisdiction to grant a relief the lower court was in no position to grant. In similar measure, Mr. Nwachukwu did also submit that the lower court could only grant such interlocutory reliefs which related to the substantive reliefs the court had jurisdiction to determine. Since the court lacked jurisdiction to review the decision of the High Court sitting as a final appeal court in respect of Local Government election matters, a fortiori, same court lacked the jurisdiction of granting those interlocutory reliefs, which hinged on appellant/applicants incompetent substantive claim. That counsel’s submissions seems to be a re-echo of the lower court’s decisions in Ex GD 1 and FGD 1 A does not make the submissions less profound. The lower court’s ruling at page 7-8 of exhibit FGD-IA refusing appellant’s earlier application for stay of execution and prohibitory injunction speaks palpably for itself thus: –
“It is my respectful and well considered view that it does not seem that the applicant understood the essence, meaning and import of the said ruling applicant claims to have appealed against. The ruling of 14/10/05 was saying that the 2nd – 4th respondents while hearing and determining EPU/25A/2005 Dr. Christian Nwachukwu-Okoli v. Abia State Electoral Commissioner & Ors sat as the High Court of Abia State which consequently was a court of concurrent and coordinate jurisdiction with my court. It was solely on that basis that I rule that I lacked the jurisdiction to exercise supervisory role over the High Court presided over by 2nd – 4th respondents. In simple language, I ruled that this court had no jurisdiction of any sort over 2nd-4th respondents while they sat, heard and determined EPU/25A/2005.
Now this motion before me seeks my order staying my ruling of 14/10/2005 pending the hearing and determination of the appeal filed against my said ruling of 14/10/2005. From the very nature of this application for stay of execution, it is undoubted that it can only be made where the judgment or ruling is an executory one. It cannot be ordered where the judgment or ruling is merely declaratory or where the court, as in this instant, merely rules that it has no jurisdiction.”
(Underlining supplied for emphasis)
Learned respondents counsel’s submissions are unmistakably borne out of the lower court’s foregoing decision. These submissions are unassailable. Their makes(sic) are on a firm terrain. One cannot agree more.
It is indeed the law that interlocutory reliefs must draw from the plaintiff’s substantive claim. Where they neither draw nor relate to a competent cause of action, the interlocutory reliefs are by extension incompetent. They must be refused – see Okoya v. Santili (1991) 7 NWLR (Pt 206) 753. In the instant case the lower court declined jurisdiction from the reasons contained in exhibit FGD -1A. The lower court which lacks the jurisdiction to entertain appellant/applicant’s substantive claim, demonstrably lacks jurisdiction over appellant/applicant’s application for interlocutory injunction. This is the lower court’s subsisting decision that has not been appealed against. The decision is presumed correct and persists until it has been set aside. See Fasade v. Babalola (2003) 11 NWLR (pt 830) 26 SC and Ndayako v. Dantoro (2004) 14 NWLR (pt 889) 187 SC.
It is possible to contend that appellant/applicant’s application to which this ruling relates is for mandatory injunction rather than the prohibitory injunction during which pendency in this court the respondents carried out the act appellant/applicant wants set aside. The contention will only beg the issue.
The very reasons which prevented the lower court from staying its ruling in exhibit GD1, the court’s refusal of leave to appellant/applicant to enforce his right to fair hearing stands in the court’s way in respect of the mandatory injunction were same to be sought of it. The court would only be empowered to grant that interlocutory relief if it is empowered over the substantive claim by virtue of which the interlocutory relief would have been sought of it.
By the clear and unambiguous words of Section 16 of the Court of Appeal Act, which provides for this court’s power pertaining to the “grant’ of “any injunction” whether interlocutory or mandatory, the court lacks the power of granting the appellant/applicant the indulgence he seeks. This court lacks the power of granting an injunction which, were the court below to be approached, being bereft of jurisdiction over appellant/applicant’s substantive claim, would not be “authorized” to make or grant. The enabling legislation Section 16 supra, empowers this court to grant only those injunctive reliefs “the court below is authorized to grant. If that court lacked the jurisdiction to entertain appellant/applicant’s substantive claim and resultantly the jurisdiction to grant him an injunctive order, this court by the operation of Section 16 of the Court of Appeal Act lacks the jurisdiction to grant the appellant/applicant the very relief he instantly canvasses. There is this principle we cannot ignore: where the procedure for a remedy is prescribed by statute, the court must ensure compliance with the procedure in deciding whether or not an aggrieved person is entitled to the remedy he seeks from the court. See Adigun v. Osaka (2003) 5 NWLR (Pt 821) 95 CA.
Even on the basis of the decision in Abubakar v. Unipetrol PLC commended to us by learned senior counsel the appellant/applicant cannot be said to have satisfied the criteria imposed on him. He fulfilled only some of the conditions. It is true that respondents knew of the pendency in this court of his application for stay and prohibitory injunction. Appellant/applicant can equally insist that the fact of the swearing-in of 1st respondent by the 7th respondent has “stolen a match” on him. He cannot claim to have successfully fulfilled the third and overriding requirement to warrant the grant of the injunction he seeks: that by swearing 1st respondent, the 7th respondent has “foisted on the court a fait accompli.” The truth remains that the mandatory injunction the appellant/applicant seeks is a relief this court, for the reasons already articulated in this ruling, cannot grant. One so holds.
Resultantly, appellant/applicant’s application for mandatory injunction also fails. It is dismissed. Parties to bear their respective costs.
Other Citations: (2006)LCN/1922(CA)
