Alhaji A.W. Akibu & Ors. V. Alhaja Munirat Oduntan & Ors. (1991)

LawGlobal-Hub Lead Judgment Report

O. OBASEKI, J.S.C. 

The applicants herein by motion on notice pray this Honourable Court for three orders, the first and second of which are for interlocutory injunction and the third for an order to maintain the status quo as per the terms of the order of the High Court of 31st day of October, 1986 pending the determination of the appeal and an order to allow the 3rd appellant/applicant to maintain the status of a capped Chief pending the determination of the said appeal. In terms of their motion, the applicants pray-

1. For an order of interlocutory injunction restraining the 1st, 2nd, 3rd, 4th, 5th and 6th respondents and the entire members of their family from giving effect to the judgment of the Court of Appeal dated 12th February, 1990 pending the hearing and determination of the appeal lodged against the said judgment.
2. For an order of interlocutory injunction restraining both the appellants and the respondents and all the entire members of the Eletu-Iwashe family from dealing with and/or alienating the properties of the Eletu-Iwashe chieftaincy family pending the appeal lodged against the judgment dated 12th February, 1990;
3. For an order to maintain the status quo as per the terms of the order of the High Court in its Ruling dated 31st day of October, 1986 pending the outcome of the appeal. The said order reads as follows:

‘For these reasons, it is my considered view that a stay should be granted pending the determination of the appeal filed by the 1st to 3rd defendants/applicants. An order is hereby made accordingly. It is hereby also ordered that the 1st to 3rd defendants/applicants shall not until the final determination of the appeal filed by them do any act that will cause a breach of the peace by members of the Eletu-Iwashe chieftaincy family and that every member of that family shall, until that time, keep the peace in respect of all matters relating to the chieftaincy title and the properties attached thereto.”

(ii) And to allow the 3rd appellant applicant to maintain the status of a capped Chief pending the determination of the said appeal’

The proceedings in which this application is made were initiated by notice of appeal filed on 14/2/90 against the decision of the Court of Appeal delivered on the 5th day of February, 1990. That decision was given in a matter which came on appeal before the Court of Appeal. That matter was the grant of a stay of execution of the judgment of the High Court of Lagos in suit No. LO/231 and 545/81 dated 15th July, 1986 in a Ruling delivered on 31st October, 1986. The Court of Appeal in its judgment delivered on 5th February, 1990 set aside the stay of execution granted by the High Court. Being dissatisfied the defendants have appealed against the removal of the order of stay.

The defendants have also appealed to the Court of Appeal against the judgment of the High Court which was stayed and the appeal is pending in the Court of Appeal. There is therefore no appeal pending before this Court in respect of the substantive claims for which the plaintiffs/respondents got judgment. What are these claims I will set them out as endorsed on the writs of summons. In suit LD/231/81 the plaintiffs claim:

“1. A declaration that the Ogabi, Kusimi and Kumoku families are the only existing branches of the Eletu Iwashe chieftaincy family;

2. A declaration that the Dosunmu family of which the 1st to 3rd defendants are members, is not a branch of the Eletu Iwashe chieftaincy family;
3. A declaration that consequently Ogabi, Kusimi and Kumoku branches of the Eletu-Wase chieftaincy family are the only branches of Eletu-Wase chieftaincy family entitled to nominate candidates for the Eletu-Wase chieftaincy family;
4. A declaration that the 3rd defendant or any member of the Dosunmu family is not entitled to be nominated and/or installed the Eletu-Wase of Lagos;
5. A declaration that the declaration made on the 20th day of August, 1979 by the 4th defendant is null and void and of no effect whatsoever;
6. A declaration that the approval given on the 7th day of August, 1980, by the Executive Council of the Lagos State Government, of the declaration made by the 4th defendant on the 20th day of August, 1979 is null and void and of no effect whatsoever;
7. A declaration that the registration of the said declaration is null and void and of no effect whatsoever;
8. A declaration that the 4th defendant’s letter to the Dosunmu family dated the 14th of October, 1980 directing that they nominate one of their members as the Eletu-Wase elect is null and void and of no effect;
9. A declaration that the nomination of the 3rd defendant by other members of the Dosunmu family as the Eletu- Wase elect is null and void and of no effect;
10. A perpetual injunction restraining the defendants, their servants and/or agents from giving effect in any manner to the declaration dated the 20th of August, 1979.”

And the plaintiffs’ claims in suit No.LD/545/81 are:

“1. A declaration that the purported appointment of the 3rd defendant-Badmus Agoro as the Eletu-Wase of Lagos and the purported approval of the appointment contained in the letter:Ref. 001600C/Vol.2/293 dated 25th March, 1981 issued under the hand of the Council Manager of the 4th defendant to the Head of the Eletu-Iwashe chieftaincy family are null and void and of no effect;

2. A declaration that the 3rd defendant is not the Eletu-Iwashe of Lagos.
3. An injunction restraining the 3rd defendant from holding himself out as the Eletu-Iwashe of Lagos and/or performing any of the traditional functions of the Eletu/Iwashe or enjoying any of the traditional rights and privileges of the Eletu-Iwashe or enjoying any of the traditional rights and privileges of the Eletu-Iwashe or enjoying any of the traditional rights and privileges of the Eletu/Iwashe;
4. N5,000 damages for trespass to the Iga (Palace) of the Eletu-Iwashe of Lagos; and
5. Perpetual injunction restraining the defendants, their servants, agents and privies from trespassing and/or continuing to trespass on the Iga (Palace) of the Eletu-Iwashe of Lagos.

In suit No.LD.231/81, the learned trial Judge granted and made the declarations and orders sought in claims (1), (2) and (3); and 5 to 10 and refused the declaration sought in claim 4 Before granting the declarations, the learned trial Judge, Oladipo Williams, J. said, observed and found as follows:

“I have approached the dispute between the plaintiffs and the 1st to 3rd defendants with great anxiety and I am of the opinion that there could not have been a Dosunmu branch of the family. I find that the Ogabi, Kusimi and Kumoku branches are the only existing branches of the Eletu-Iwashe chieftaincy family, that the Dosunmu family of which the 1st to 3rd defendants are members is not a branch of the Eletu-Iwashe chieftaincy family which should be recognised and that Ogabi, Kusimi and Kumoku branches of the family are the only branches of the Eletu/Iwashe chieftaincy family entitled to nominate candidates for the chieftaincy title.

The present dispute has arisen in my opinion because the Tribunal of Enquiry appointed in 1975 came to the wrong conclusion by declaring that there are five ruling houses instead of three as mentioned above. I find therefore that the declaration made on the 20th day of August, 1979 by the 4th defendant was null, void and of no effect whatsoever and that it should not have been approved as was done on 7th day of August, 1980. Consequently, the 4th defendant’s letter to the Dosunmu family dated 14th October, 1980 directing that family to nominate one of its members as the Chief Eletu-Iwashe was null and void and could not be said to be of any effect whatsoever.

Because of all these findings, an order of injunction should be made and it is hereby made restraining the defendants and/or their agents from giving effect in any manner to the declaration dated 20th August, 1979…

For reasons earlier given in this judgment in Suit No.LD/231/81, the declaration and order sought in (1), (2) and (3); (5) to (10) of the claims are hereby made. It will be seen that the claim in (4) that the 3rd defendant and his relations be declared not entitled to the chieftaincy title has been refused. This refusal is made in order to make it possible for the declaration of the Ruling Houses to be revised in order to bring them in conformity with the findings made in this judgment.

With regard to the claims in suit No.LD/545/81, the learned trial Judge, Oladipo Williams, J. said in his judgment as follows:

“I now come to deal with the claims in suit No.LD/545/81. From the findings which had been made in suit No.LD/231/81 it would be unnecessary to make the declaration sought for in (1) and (2) therein. Those facts as found in suit No.LD/231/81 are also the reasons why an order of injunction should be made and it is hereby made restraining the 3rd defendant from holding himself out as the Eletu-Iwashe of Lagos and from performing any of the traditional rights and privileges of the Eletu Iwashe.”

On the issue of trespass to the Iga, the learned trial Judge said:

“As has now been shown, the 3rd defendant had no right to occupy the Iga of Eletu-Iwashe on 31st March, 1981 and by doing so, he has committed trespass.”

I think that a sum of N500.00 is sufficient as damages in the circumstances of this case, as against the 3rd defendant only. The plaintiffs having succeeded in their claims for trespass are entitled to an order of perpetual injunction restraining all the defendants, their servants, agents and privies from trespassing and/or continuing to trespass on the Iga of Eletu-Iwashe.”

As said earlier, an appeal against this judgment is pending before the Court of Appeal and not before this Court. That is the judgment in respect of which a stay pending the determination of the appeal to the Court of Appeal was granted but that order of stay has been discharged by the Court of Appeal and the Court of Appeal allowing plaintiffs appeal against that order said, inter alia, in the lead judgment of Akpata, J.C.A. concurred in by Babalakin, J.C.A. and Awogu, J.C.A. as follows:

“The appeal is bound to succeed on three grounds namely:

(1) There was no arguable ground of appeal filed by the defendants against the substantive judgment before the learned trial Judge granted a stay;

(2) The defendants disclosed no special circumstances that could warrant a stay of execution of the substantive judgment;

(3) The defendants particularly the 3rd defendant should not be allowed to continue in their trespass.”

This judgment was delivered on the 12th day of February, 1990.

Having regard to the terms of the judgment, I can see no basis for the three prayers in this motion. Prayer 1, in my view, is totally misconceived. The judgment has taken effect in that the order of stay was discharged and the question of not giving effect to it does not arise. An interlocutory injunction can only be issued to restrain a threatened wrong to a right and not to restrain the lawful enjoyment of a legal right. The Court of Appeal judgment removed the restraint on the enjoyment of the fruits of the judgment of the High Court and it does not require the 1st, 2nd, 3rd, 4th, 5th and 6th respondents to give effect to that judgment.

The premises for an application for interlocutory injunction is the claim before the court. The claim before this Court does not relate to the properties of the Eletu-Iwashe family.

Apart from the claim for trespass to the Palace of Eletu-Iwashe, none of the claims that were adjudicated upon by the High Court touched on or related to the properties of Eletu-Iwashe and as such, prayer 2 must be refused. Prayer 3 is in effect asking this Court to reverse the judgment of the Court of Appeal before hearing the appeal. In other words, this Court is in this application being urged to restore the stay of execution set aside by the Court of Appeal. There is no basis for such an order.

An interlocutory injunction is usually granted with the object of keeping matters in status quo until the question at issue between the parties is determined. See Ojukwu v. Lagos State Government (1986) 3 NWLR. (Pt.26) 39, C.A.; Obeya Memorial Specialist Hospital v. Attorney-General of the Federation & Anor. (1987) 3 NWLR (Pt.60) 325 S.c.; American Cyanamid Co. v. Ethicon Ltd. (1975) A.C. 396-409. So also is an order of stay of execution and an order of stay of proceedings. See Vaswani v. Savalakh (1972) 12 S.C. 77 at 81; Okafor v. Nnaife (1987) 4 NWLR (Pt. 129) 64 at 136-138; Fawehinmi v. Akilu (1989) 3 NWLR (Pt. 112) 613 at 617. It is not available in respect of issues not raised in the action or proceedings before the Court unless such issues dor matters are directly related to the issues raised. It is therefore not available to restrain parties in respect of matters outside the issues raised in appeal before the appeal court.

As the issue of ownership and alienation of the properties of Eletu Iwashe family is not before this Court in this appeal nor indeed before the Court of Appeal and High Court, the prayer for an order of interlocutory injunction restraining both the appellants and the respondents cannot be granted and must be refused.

As already stated above, the prayer to maintain the status quo as per the terms of the order of the High Court in its Ruling dated the 31st day of October, 1986 pending the outcome of the appeal to the Court of Appeal is a direct invitation to this Court to reverse the judgment of the Court of Appeal discharging that order no matter how interim.

The prayer to allow the 3rd appellant/applicant to maintain the status of a capped chief pending the determination of the appeal is an invitation not only to reverse the judgment of the Court of Appeal but also to reverse the declaratory judgment of the High Court and the order of injunction. A declaratory judgment cannot be stayed. See Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) page 592, the order of stay of execution granted by the High Court in effect only stayed the order of injunction and the order of payment of damages of N500.00. It did not stay or suspend the declarations granted. The effect of the declaratory judgment remains and must weigh heavily in this application on the mind of the court.

The two arms of the 3rd prayer on the motion have different premises. The first arm of the 3rd prayer has the order of stay of execution of the orders granted by the High Court as its premises while the 2nd arm of the 3rd prayer is based directly on the declaration and order of injunction made by the learned trial Judge in his judgment. In other words, the appellant is asking this Court to exercise its appellate jurisdiction on these matters when the appeal against the declaratory judgment and orders of injunction is not before this Court,

An examination of the notice of appeal Exhibit D1 filed in the Court of Appeal against the judgment of that court in the appeal to it shows that the relief sought from this Court, the Supreme Court reads:

“setting aside the Court of Appeal Ruling and restoring a stay of execution until determination of the appeal.”

Having regard to this relief, I would consider this motion for the same relief as totally misconceived.

Since the appeal against the discharge of the order of stay of execution is before this Court, the original motion for interlocutory injunction to effect a stay of execution is misconceived and it is hereby refused. The proper course is to accelerate the hearing of the appeal properly pending.

The motion is hereby dismissed with N50.00 costs to the respondents.A. G. KARIBI-WHYTE, J.S.C.: I have had a preview of the ruling of my learned brother, Obaseki, J.S.C. in this application. I am in total agreement with his reasoning and the conclusion dismissing the application, but making an order for accelerated hearing of the appeal pending before this Court.

I also hereby dismiss the motion, and order accelerated hearing of the appeal.

Appellants/applicants shall pay N50 as costs to the respondents.

S. KAWU, J.S.C.: I have had the advantage of reading, in draft, the lead ruling of my learned brother, Obaseki, J .S.C. which has just been delivered. I am in complete agreement with him and for the reasons fully set out in the Ruling. I too will dismiss the motion with N50.00 costs to the respondents.