Abel Gbadegesin Adisa & Ors. V. The Military Administrator of Oyo State & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

KUMAI BAYANG AKAAHS, J.C.A.

The issue in this appeal is whether an order of interlocutory injunction can be granted to restrain a completed action. The plaintiffs now appellants sued the respondents/defendants for the following reliefs:

“1. A declaration that the purported appointment and naming of the 3rd Defendant as the Baale of Komu was defective and contrary to custom and procedure relating to the filling of the vacant (sic) of the Komu Chieftaincy under Section 4(2) of the Chiefs Law 1957 of the Customary Law regulating the selection to (sic) the Baale of Komu Chieftaincy and therefore invalid.

2. A declaration that the appellation of title “ONIRO” being arried by the 3rd defendant is contrary to the custom and tradition of Komu Chieftaincy and declaration regulating the selection to (sic) the Baale of Komu Chieftaincy and therefore invalid.
3. An order setting aside the purported appointment of the 3rd defendant as the Baale of Komu.
4. An order of perpetual injunction restraining the 1st, 2nd and 4th defendants from recognizing the 3rd defendant as the Baale of Komu.
5. An order setting aside the appointment of the Warrant Kingmakers as the purported appointment was unlawful.
6. An order of injunction restraining the defendants whether by themselves, servants or privies from installing and presenting the instrument of office to the 3rd defendant.

After filing the Writ, the plaintiffs filed a motion asking for an interlocutory order of injunction restraining the 1st, 2nd, 4th and 5th Respondents from performing the installation or coronation rites and/or presentation of instrument of office to the 3rd respondent and to restrain the 3rd respondent from parading himself as the Baale of Komu until the substantive suit is decided. There was a 6 paragraph affidavit of urgency that accompanied the motion together with a 32 paragraphs affidavit in support of the motion. A counter-affidavit was sworn to by Yemi Ogunsesan, the Assistant Director (Chieftaincy Matters) in the Department of Local Government and Chieftaincy, Office of the Executive Governor of Oyo State on behalf of 1st and 2nd Respondents while Chief Abraham Adekola, the 5th respondent deposed to a counter-affidavit in favour of 3rd respondent and himself. The 4th respondent did not file a counter-affidavit. There was conflict in the affidavits as to whether the installation of 3rd respondent had taken place and so the learned trial judge P. O. Aderemi, J (as he then was) ordered for oral evidence and Mr. A. O. Adewunmi the Deputy Secretary to the 4th Respondent testified. Two letters were tendered in evidence. They are letter with reference No. CB.141/43/31 Vol.1/111/655 dated 27/10/1997 confirming the appointment of 3rd defendant/respondent as the new Baale of Komu which was marked Exhibit “A” while the letter written by the 3rd defendant to the Chairman, Itesiwaju Local Government was received in evidence as Exh. “B”. The court found in favour of the respondents and dismissed the application for injunction.

The plaintiffs appealed against the ruling and raised three issues for determination. The issues are:-

i) Whether the material evidence before the learned trial Judge by way of Affidavit evidence and documentary evidence were sufficient to enable him exercise his discretion In favour of the Appellants.

ii) Whether the learned trial judge was right in not considering the substantiality of the claim and balance of convenience before dismissing the application for injunction.

iii) Whether having regard to the circumstances of this case the learned trial judge was right in holding that the installation has taken place more so when the Respondents did not deny that coronation and presentation of Instrument of office to the 3rd Respondent has not been done.”

The 1st and 2nd Respondents filed a preliminary objection to contend that:

i) That issue (ii) as formulated by the appellants at page 3 of the Appellant’s brief of argument is not covered by any ground of appeal, thus it should be struck out as incompetent. See Tukur v Govt. of Taraba State (1997) 6 NWLR (PI. 510) 549.

ii) That particular 2 does not complement or arise from ground 1 of the grounds of appeal in that the learned trial judge did not make any pronouncement which inevitably led to determination of issue in (sic) case and should therefore be struck out as incompetent and irrelevant.

The 1st and 2nd respondents formulated a sale issue for determination thus:

“i) Whether the learned trial judge was not right to have refused the appellants’ application for an order of interlocutory injunction in the circumstances of this case.

The 3rd, 4th and 5th respondents also raised preliminary objection to issue (ii) in the appellants’ brief and particular 2 of ground 1 of the appeal. The 4th respondent also attacked particular 3 of Ground 4 and said it constituted a separate ground of appeal and does not flow or arise from Ground 4 and so should be struck out.

The issue formulated by 3rd and 5th respondents was:

“Whether or not the finding of the learned trial Judge that installation of the 3rd defendant/respondent had taken place before the suit was assailable.

In the 4th respondent’s brief the issue formulated was, “whether or not the finding of the learned trial Judge that Installation of the 3rd Defendant/Respondent had taken place before the suit was instituted.

The Appellants filed a Reply Brief in response to the preliminary objections raised by the respondents.

When the appeal was called for hearing, the appellants though served with hearing notices were absent together with their counsel; so also the 1st, 2nd and 4th respondents. Only the counsel for 3rd and 5th respondents was present in Court. Since all the briefs had been filed and exchanged the appeal was deemed argued on the briefs filed in accordance with Order 17 Rule 9(4) Court of Appeal Rule 2007.

Issue NO. 2 does not arise from the Ruling being appealed against. It was not distilled from any of the grounds. It is incompetent and it is accordingly struck out.

Learned counsel for the appellants has conceded that particular 3 of ground 4 ought to constitute a separate ground of appeal. It is therefore struck out as a particular to ground 4.

The issues left for determination therefore are issues 1 and 3 in the appellants’ brief. On issue 1, learned counsel for the appellants submitted that the Lower Court had enough material evidence before him by way of Affidavit evidence and documentary exhibits to enable him exercise his discretion in favour of the appellants. He was therefore wrong to have dismissed the application for interlocutory injunction without considering the substantiality of these material evidence.

It was the contention of learned counsel for 1st and 2nd respondents that although the two sides produced both affidavit evidence and exhibits before the lower Court, the affidavits were in sharp conflict and so there was need to resolve the conflict by calling oral evidence. It was pointed out that in paragraphs 22, 23, 24 and 25 of the affidavit by Abel Gbadegesin Adisa in favour of the plaintiffs/appellants, the 3rd defendant/respondent had not been installed the Baale of Komu. Paragraphs 4 and 5 of the further affidavit deposed to by Chief Amusa Ogungbenro, the 6th plaintiff further amplified this position. But in paragraphs 22, 24 and 25 of the counter-affidavit of the 3rd and 5th defendants on the other hand affirmed that the 3rd defendant/respondent had been installed before the suit was filed. Yemi Ogunsesan (the Assistant Director (Chieftaincy Matters) in the Department of Local Government and Chieftaincy Matters, Office of the Military Administrator of Oyo State confirmed this in paragraphs 17, 18 and 21 of his counter-affidavit. Learned counsel for the 1st and 2nd respondent therefore submitted that when a court is faced with affidavits which are irreconcilably in conflict, the judge hearing the case should first hear oral evidence from the deponents or such other witnesses as the parties may be advised to call to resolve the conflict. The exception however, is that the court can resolve conflicting affidavits if it has enough documentary evidence before it. It was argued that the Plaintiff/Appellants did not tender any documentary evidence to rebut the claims or assertions of the defendants/respondents to the effect that the 3rd Respondent had been installed the Baale of Komu. In their briefs of argument learned counsel for 3rd, 4th and 5th respondents aligned themselves with the submissions made on behalf of 1st and 2nd respondents.

In paragraph 25 of the affidavit of Abel Gbadegesin Adisa paragraphs 4, 5 and 6 of the further affidavit of Chief Amusa Ogungbenro in support of the motion for interlocutory injunction dated 24/11/1997 the deponents averred as follows:-

“25 That the 3rd defendant is already preparing to perform the installation and coronation rites during which the 1st defendant will present the instrument of office to the 3rd defendant.

4. That there was no installation of the 3rd defendant as Baale of Komu on 31/10/1997.
5. That the 5th defendant merely announced to the people that they have received the letter of appointment of the 3rd defendant from the 1st defendant which is Exh. ‘K’ In the counter-affidavit.
6. That nobody is paying homage to the 3rd defendant and none of the Chiefs mentioned in paragraph 27 of the counter-affidavit of the 3rd and 5th defendants did so.”

In paragraphs 22, 23, 24, 25, 26 and 27 of the counter-affidavit deposed to by Chief Abraham Adekola, he stated as follows:-

22. That when the suit was struck out, the Government directed that the selection exercise of the Baale of Komu should continue from where It stopped in 1991. The document dated 20th April, 1993is herewith attached and marked Exhibit ‘J’.
23. That on the basis of Exh. ‘J’ the government of Oyo State has approved the appointment of the 3rd Defendant as Baale of Komu. The approval letter is herewith attached and marked Exh. ‘K’.
24. That on receipt of Exh. ‘K’ the 3rd Defendant called me and other Chiefs and warrant King-makers and showed it to me for action.
25. That we made arrangement immediately to install the 3rd defendant as Baale of Komu. He was so installed on 31/10/97.
26. That after the installation the town’s people and Chiefs started to pay traditional homage to the 3rd defendant.
27. That such people who have paid traditional homage Include Chief Amos Ajao Oslmo of Ibise, Olowu of Ibise, Chief Amuda Ogungbenro, the Odofin of Ibise, Chief Matthew Adereonmu, Jagun of Iblse, representatives of Baale Baba-Ode, Baale of Igbojaye, Abel Gbadegesln Adisa, head of the hunters and various other interest groups.”

There was positive averment in paragraph 25 of the counter-affidavit that the 3rd Defendant was installed Baale of Komu on 31/10/97 but this averment was counteracted in paragraph 4 of the further affidavit sworn to by Chief Amusa Ogungbenro. Faced with these conflicting affidavits, the learned trial Judge had no option but to call oral evidence to decide which side to believe on the unfolding drama. This is clearly the position of the law as held in a plethora of authorities such as Falobi v Falobi (1976) 1 NMLR 169; Olu-Ibukun v Olu-lbukun (1974) 2 SC 41; Akinsete v Akindutire (1966) 1 ALL NLR 147. In Akinsete v Akindutre supra the Supreme Court observed at page 148 as follows:-

“In the face of the direct conflict of affidavits on crucial facts, the learned trial Judge, we think, should have heard oral evidence from the deponents or such other witnesses as the parties may be advised to call.”

The learned trial Judge applied the right procedure in calling for oral evidence to resolve the conflict on whether the installation had taken place or not as there were not enough documentary evidence before it to resolve the conflicting affidavits.

Turning to issue 3, learned counsel for the appellants referred to the ruling on page 23 of the records and Exh. A and B which were tendered by Mr. A.O. Adewumi the Deputy Secretary of the Itesiwaju Local Government Counsel and argued that Exh. ‘A’ and ‘B’ were tendered to prove the assertion that the installation of the 3rd Respondent had been performed and contended that neither of these Exhibits established before the Court when the installation was performed. He said the court was in error when it believed the testimony of Mr. A.O. Adewumi. He submitted that installation can only be said to have been performed when the coronation rites are done during which the 1st respondent will present the staff of office to the 3rd respondent.

On their part the respondents argued that injunction is not granted as a matter of course and is no remedy for an act which has been completed. It was submitted that the appellants did not tender any documentary evidence to rebut the claims/assertions of the Defendants/Respondents to the effect that 3rd defendant/respondent had been installed Baale of Komu by the State Government and Exhibit ‘B’ tendered before the Court showed a demand letter by the 3rd Respondent to the 4th Respondent for his monthly stipends before the institution of the action in court. It was submitted that the trial Judge was right when he held that the 3rd respondent had been installed Baale of Komu.

The grant or refusal of injunction in a pending matter is not automatic but is made at the discretion of the Court. This discretion is to be exercised both judicially and judiciously. Having been presented with oral evidence, the trial Judge accepted the evidence called by the respondents based on the balance of probability. The learned trial Judge was right to presume that having been presented with Exhibit ‘A’ wherein the State Government approved the appointment of the 3m Respondent and the 3rd respondent writing Exhibit ‘B’ to demand for his monthly stipend, that presupposes that he had been installed as the Baale of Komu. The argument being advanced by learned counsel for the appellants that Exhibit ‘B’ has not proved his installation can only be a cogent argument if the burden of proof fasted on the respondents. Apart from stating that the installation had not taken place, there was no positive evidence that the installation had in fact not taken place. The appellants’ case fasted on mere speculation. When Chief Stephen Mofoyewa Akinyode was cross-examined, he stated that he did not know whether Baale Komu has been installed or not. There was nothing which the learned trial Judge could put on the scale that would tilt the balance in favour of the appellants.

If the appellants have a genuine case, they should pursue the substantive case rather than waste time on the interlocutory injunction. The trial Judge exercised his discretion and the appellants in order to succeed must show that the discretion was not exercised judiciously or wrong principles of law were applied or extraneous matters were taken into consideration in the exercise of the discretion.

I don’t know if the substantive case is still pending. If it has not been disposed of the blame must be put at the door steps of the appellants for this appeal has in no way advanced the cause of justice.

I find that the appeal has no merit whatsoever, and it is accordingly dismissed. I award N10,000.00 to each set of respondents against the appellants.

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Other Citations: (2008)LCN/2736(CA)