Alhaji Alhassan Shuaibu V. Muhammed Babangida Muazu & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

KUMAI BAYANG AKAAHS, J.C.A.

The pith of this appeal is centred on whether a restrictive order of injunction can be granted to set aside completed acts and restore the parties to the status quo ante bellum if the defendant sought to be restrained completed the act after having been served with a notice of motion seeking to restrain the act he hurriedly completed before the date fixed on the motion for hearing.

In the writ of summons dated 4/4/2005 but issued on 11/4/2005 the claims of the plaintiff against the defendants jointly and severally are as follows:

1. A declaration that the purported selection of the 1st defendant as the Emir of Kanam. Kanam Local Government Area, Jos, Plateau State upon the selection exercise carried out by the 4 kingmakers of Kanam Emirate and 4th, 5th and 6th defendants on Tuesday, the 29th day of March, 2005 is contrary to the procedure of selection contained in the Chieftaincy Declaration of Kanam Emirate registered in Plateau State of Nigeria in September, 1976 and is therefore null, void and of no effect such that it should be set aside.
2. A declaration that the plaintiff was the rightful candidate selected by the 4 kingmakers of Kanam Emirate as the Emir of Kanam during the selection exercise of Tuesday, 29th day of March, 2005 and not the 1st defendant.
3. A declaration that the procedure adopted by the 4th, 5th & 6th defendants in the selection of the 1st defendant as the Emir of Kanam by excluding the statutory observers and by pressurizing the Kingmakers to change their selection is irregular, wrongful, unlawful, unconstitutional and against the rule of natural justice and therefore null, void and of no effect.
4. A declaration that the approval and announcement of the 1st defendant as the Emir of Kanam made by the 2nd and 3rd defendants is irregular, wrongful, null, void and of no effect.
5. A declaration that the purported selection of the 1st defendant as Emir of Kanam and his subsequent approval by the 2nd to the 8th defendants was fraught with fraud and irregularities which render the selection and approval null and void and of no effect whatsoever.
6. An order setting aside the purported selection, approval and announcement of the 1st defendant as the Emir of Kanam, Kanam Local Government Area, Jos Plateau State.
7. Perpetual injunction restraining the 2nd to 8th defendants, by themselves, their privies, servants and/or agents or otherwise whosoever from recognizing the 1st defendant as the Emir of Kanam.
8. Perpetual injunction restraining the 2nd to the 8th defendants by themselves, their privies, servants and/or agents or otherwise whosoever from installing the 1st defendant as Emir of Kanam and/or issue to the 1st defendant staff of office and any other insignia of office or certificate of office as the Emir of Kanam.
9. Perpetual injunction restraining the 1st defendant from parading or holding out himself in any form as a recognized Emir of Kanam anywhere within or without Plateau State and/or performing the traditional functions of Emir of Kanam.

10a. A mandatory injunction directing 2nd to the 8th defendants to approve, install and/or coronate the plaintiff as the Emir of Kanam and give to him all necessary items and certificate of office.

Alternatively

10b. An order directing the 2nd, 3rd, 7th and 8th defendants to reconduct selection exercise of Emir of Kanam in accordance with the procedure of selection contained in the Chieftaincy declaration of Kanam Emirate as registered in Plateau State of Nigeria. These reliefs are reproduced in paragraph 4.01-4.10b of the statement of claim. An affidavit of urgency and a motion ex-parte for substituted service were filed along with the writ of summons and statement of claim. An affidavit of service of the writ of summons and motion on notice on 2nd-8th defendants was deposed to by the bailiff on 5/4/05 (see page 102 of the records).

The facts leading to this appeal are as follows:

On the 4th of April, 2005, the plaintiff now appellant, filed a writ of summons and statement of claim and also filed a motion on notice and affidavit in Support with a 7 paragraph affidavit of urgency seeking the following reliefs:

(a) An injunction restraining the 2nd to the 8th defendants/respondents and their officers, servants and/or agents or whomsoever from taking any step pursuant to or in recognition of the 1st defendant as Emir of Kanam till the substantive case is decided.

(b) An injunction restraining the 2nd-8th defendants/respondents, their agents, servants, officers and privies from taking any step whatsoever to install or coronate the 1st defendant as Emir of Kanam and from performing the installation ceremony, or from presenting to him any instrument of appointment, paraphernalia of office either in public or in camera till the final determination of this suit.

(c) An injunction restraining the 1st defendant from submitting or presenting himself for installation, coronation or conferment with the instrument of staff of office or parade himself as one or allow himself to be beaded as Emir of Kanam till the finality of this suit.

After the plaintiff had filed the aforesaid writ of summons, statement of claim and motion on notice seeking to restrain the defendants all dated 4th April, 2005, the defendants went ahead to install and coronate the 1st defendant as Emir of Kanam on 9th April, 2005. This prompted the plaintiff to file another motion on notice on the 14th of April, 2005 seeking the following orders:-

1. AN ORDER setting aside the installation of the 1st defendant/respondent which the defendants/respondents (particularly the 2nd respondent) carried out on the 9th day of April, 2005 in defiance of and to overreach the pending application for injunction of the plaintiff which application was earlier served on the respondents between 4th and 5th April, 2005.
2. AN ORDER directing that the 1st defendant/respondent, his servants, agents officers, members of family and/or relations to vacate the official Palace of Emir of Kanam forthwith until the court holds otherwise.
3. AN ORDER directing the defendants/respondents not to harass, molest, intimidate and/or frighten the four (4) Kingmakers with arrest, detention and assassination.
4. AN ORDER directing that the defendants/respondents cannot and will not be heard on the merit of the substantive suit until they have fully withdrawn, recalled and/or removed the 1st defendant/respondent from the official Palace of Emir of Kanam.

The grounds upon which the application was predicated are: –

1. The defendants/respondents were served with the writ of summons, statement of claim containing injunctive reliefs as well as motion for injunctive reliefs on Monday the 4th and Tuesday the 5th of April, 2005.
2. That though there was an affidavit of urgency praying for accelerated hearing of the motion for injunction, matter could not be heard before now due to the absence of the Honourable Chief Judge, who has the responsibility to assign the case.
3. The defendants/respondents were aware of the pending suit and the plaintiff’s application for injunctive reliefs but nevertheless went on to install the 1st defendant/respondent to overreach the plaintiff/applicant and to impose a fiat (sic) accompli on the Honourable Court.
4. The 4 Kingmakers who unanimously selected the plaintiff/applicant are being frightened and threatened with arrest, detention and/or assassination by the defendants/respondents for their insistence that the plaintiff/applicant was the candidate they unanimously selected.
5. That on the facts the defendants/respondents cannot and should not be heard until they have purged themselves of their contempt.
6. Refusal or neglect to reverse the installation and/or coronation of the 1st defendant/respondent may result to violence in the fragile Jos City of Plateau State.

A memorandum of conditional appearance was filed by N. D. Shaseet, Principal State Counsel in the Ministry of Justice, Jos on behalf of 2nd-8th defendants on 15/4/2005 in which he deposed to a 13 paragraph counter-affidavit in opposition to the motion filed on 14/4/2005 stating that the 2nd-8th respondents were served with the writ of summons on Tuesday, 12th April, 2005. A notice of preliminary objection to the jurisdiction of the court to hear the motion on notice dated 4th April, 2005 was also filed by the Ministry of Justice.

The memorandum of appearance on behalf of the 1st defendant was filed on 25th April, 2005. The 1st defendant also filed a counter-affidavit on 21/6/2005.

Learned counsel argued the application on the preliminary objection together with the motion dated 4/4/2005 and 14/4/2005.

Ruling was reserved to 24/11/2005 but was delivered on 2/12/2005.

In the said ruling, the learned trial Acting Chief Judge of Plateau State dismissed the two motions dated 4/4/2005 and 14/4/2005 respectively and awarded N1,000.00 costs in favour of the defendant against the plaintiff. The plaintiff felt aggrieved and appealed against the said ruling. Four issues were formulated from the ten grounds of appeal contained in the notice of appeal dated 16/12/2005 as follows:

(a) Whether or not the fact that it was the registrar and not the Judge who signed the writ of summons with which this suit was commenced constitutes an incurable irregularity that invalidate (sic) the summons and other processes served thereafter or renders them a nullity (grounds 1, 2, 5 and 7).

(b) Whether or not the trial Judge gave the appellant a fair hearing when he concluded in his ruling that the appellant conscripted a registrar to file his writ of summons on 4th April, 2005 and which writ of summons was neither assessed by the registry, paid for nor served on the respondents without affording the appellant the opportunity to address on these points (grounds 3 & 4).

(c) Whether or not the honourable trial Judge is not under a duty to determine all issues and arguments canvassed before him in the course of his ruling (ground 6).

(d) Whether or not a party to a proceeding who has been duly served and/or put on notice of an application for injunction seeking to restrain him from taking a step, would be right to argue that he has completed the act which the application is seeking to restrain before the date of hearing, and as such he can no longer be bound (grounds 8, 9 & 10).

Learned counsel for the 1st respondent adopted the issues formulated by the appellant but learned counsel for 2nd-8th respondents formulated a lone issue for determination as follows:

Whether by virtue of Order 5 rule 1 of the Plateau State (High Court) Civil Procedure Rules, a Registrar is authorized to issue summonses.

He also responded to issues 2 and 3 in the appellant’s brief.

The appellant filed a reply brief to the briefs filed by the respondents.

Arguments of counsel on issues raised.

Learned counsel for the appellant referred to Order 5 rule 1 of the Plateau State High Court (Civil Procedure) Rules, 1987 and form 1 which provides for either a Judge or an authorized officer to issue a writ and argued that “authorized officer” means the registrar of the Plateau State High Court. He submitted that since the position of a registrar was created in the Plateau State High Court, the registrar does not require an express administrative or practice direction of the Chief Judge of Plateau State High Court to issue a writ and assess or attest other processes brought to the registrar by litigants. If there is any such administrative or practice direction restraining the registrar from issuing a writ, such direction will be inconsistent with the provisions of Order 5 rule 1 of the High Court (Civil Procedure) Rules and to the extent of the inconsistency, such administrative or practice directive will be null and void and where there is a conflict between the two, the rule must prevail. The following cases were cited in support: Haruna v. Modibbo (2004) 16 NWLR (Pt.900) 487 at 536; Solanke v. Somefun (1974) All NLR (Pt.1) 141; (1974) 1 NMLR 214; University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143. Learned counsel argued that there is no gazette stating which officer of the Plateau State High Court is empowered to sign a writ pursuant to Order 5 rule 1 apart from the Judge and it is not disputed that the registrar who issued the writ is an officer of the High Court of Plateau State. Learned counsel submitted that even if the writ of summons issued by the registrar of the Plateau State High Court on 4th April, 2005 and served on the respondents on 4th & 5th April, 2005 is irregular, the process and other interlocutory applications served on the respondents are valid and binding on the respondents. Reliance for this submission was placed on Famfa Oil Limited v. Attorney General of The Federation (2003) 18 NWLR (Pt.852) 453. Learned counsel further submitted that irregularity should not vitiate a suit once it can be shown that no party has suffered a miscarriage of justice. A breach of the rules of practice can only render a proceeding an irregularity and not a nullity. See Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387. The fact that a registrar erroneously signed the writ of summons instead of a Judge is a mere technicality that should not be allowed to defeat the course of justice and so the preliminary objection of the 2nd-8th respondents on the competence of the appellant’s motion on interlocutory injunction dated 4th April, 2005 should not vitiate the action. Learned counsel submitted that substantial compliance with the forms and precedents of court is what the law enjoins and the mistake or sin of counsel should not be visited on the litigant. According to the learned counsel, the holding by the learned trial Acting Chief Judge that the writ signed by the Registrar was a nullity and as such the respondents are entitled to ignore it and all processes served thereon, is tantamount to laying a dangerous precedent as the respondents could sit in judgment over processes served on them and decide which one is competent or valid to answer and which one is incompetent or a nullity to be ignored cannot be light in the face of the law. Learned counsel suggested that what the learned Acting Chief Judge ought to have done was to simply counter-sign the writ already signed by the Registrar and ignore the one in which the name of the Judge was written at the bottom.

On issue No.2, the learned counsel referred to the ruling of the Acting Chief Judge and submitted that the appellant never filed more than one writ in this matter apart from the alteration from the Registrar to the Judge that was effected at the bottom of the Form I and that counsel left a copy of the unsigned writ in the court’s file in case the learned trial Judge had need of it. He drew the court’s attention to pages 7-9 of the records containing the writ of summons dated 4th April, 2005 which was endorsed by the trial Judge on 11th April, 2005 showing the stamp of the registry and the signature of the Registrar and that the assessed writ of summons was paid for on the 4th April, 2005. He wondered that the learned trial Judge instead of counter-signing the writ already signed by the Registrar, decided to sign the unsigned writ in his file and unexplainably suo motu decided to make that very issue a rationale for nullifying the appellant’s processes. He submitted that the appellant cannot rightly be held responsible for the decision of the learned trial Judge who chose to sign another writ when the one already signed by the Registrar was conspicuous in the court’s file. It is being contended that since a bailiff of Plateau State High Court deposed to an affidavit of service of the writ of summons, statement of claim and motion on notice for injunction, the acknowledgement of service duly endorsed by the respondents between 4th and 5th April, 2005 to which no counter-affidavit controverting the depositions made by the bailiff has been filed, the respondents cannot be heard in oral argument to complain against the service of the processes on them. Reliance was placed on Order 12 rule 28 of the Plateau State High Court (Civil Procedure) Rules, 1987 and the case of Fatokun v. Somade (2003) 1 NWLR (Pt. 802) 431.

Turning to issue No.3, learned counsel submitted that the learned trial Judge was wrong in holding that the motion on notice for injunction dated 4th April, 2005 was not competent because it proceeded the writ commencing the action. He relied on Order 33 rules 1, 2 and 3 of the Plateau State High Court (Civil Procedure) Rules and the case of Intercontractors (Nig.) Ltd. v. U.A.C. (1988) 2 NWLR (Pt.76) 303 at 307 which allows a plaintiff to file an application for injunction before the writ commencing the action is filed in cases of urgency.

On issue No.4, it is the contention by learned counsel for the appellant that where a party sought to be restrained deliberately proceeds with the action intended to be restrained by an order of injunction after becoming aware of the pendency of the application before a competent court for his restraint, such party will not be allowed to profit from this misconduct or total disrespect of a court of law. He said the respondents in this case were served with the appellant’s notice of injunction between the 4th and 5th day of April 2005 but in total disregard and disobedience to the court below, went ahead on Saturday the 9th day of April, 2005 to install and coronate the 1st respondent as the Emir of Kanam, which action, the motion was seeking to restrain. Citing the cases of Military Gov., of Lagos State v. Odumegwu Ojukwu (1986) (Pt.1) NSCC 304; (1986) 1 NWLR (Pt. 18) 621; Registered Trustee of the Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt. 158) 514 and several others, both foreign and local which deprecate the action of parties seeking to steal a match from opponents in disputes already submitted to court contended that where a matter is before a court of law none of the parties can legally or lawfully take any unilateral action that will prejudice or tend to prejudice the hearing or the adjudication of the matter by the court. He argued that a restrictive order of injunction can be granted to set aside completed acts and restore the parties to the status quo ante bellum if the defendant sought to be restrained completed act after having been served with a notice of motion seeking to restrain the act he hurriedly completed before the date fixed on the motion for hearing. He urged this court to allow the appeal and to grant the prayers for injunction which the learned trial Judge refused to grant.

Learned counsel for the 1st respondent replied seriatim to the issues raised in the appellant’s brief. He conceded that Order 5 rule 1 of the Plateau State High Court (Civil Procedure) Rules governs the issuance of a writ of summons as an originating process in civil matters. On whether a writ endorsed by the Registrar and not the Judge is a valid writ, learned counsel contended that the term “authorized officer” should be given its literal meaning, who is an officer who is duly permitted, instructed, empowered or assigned to sign a writ of summons and for a person to qualify as “authorized officer” there must be positive appointment or instrument to that effect. He argued that no one can validly issue any court process until the power to do so is conferred on him. Any writ issued by an officer of the lower court who has not been expressly authorized to do so is a nullity. He said that where a statute creates an office and makes the functioning in that office subject to a condition precedent, any exercise of the function of that office without the fulfillment of the condition precedent is a nullity. He therefore submitted that the writ issued on 4/4/2005 by a registrar in violation of Order 5 rule 1 is a nullity and not merely irregular as was rightly held by the learned trial Judge. Learned counsel argued that the ruling now on appeal did not affect the substance of the case or its merit as the ruling only impacted negatively on the interlocutory reliefs sought by the appellant while hearing of the substantive suit is in progress and several witnesses have testified. He therefore sought to distinguish this case from the decision in Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387; Famfa Oil Limited v. A.G., Federation (2003) 18 NWLR (Pt. 852) 453 and others.

On issue No.2, learned counsel argued that the controversial writ was the one filed on 4/4/2005 and served on the 2nd – 8th respondents which was purportedly endorsed by a Registrar of the lower court but was not assessed and paid for. He submitted that since the lower court has the power to take judicial notice of matters in its records, even if in so doing errors are made, the commission of such errors will not per se amount to a violation of a party’s right to fair hearing. He argued that payment of filing fees is a prerequisite to the validity of a writ of summons or indeed any court processes which require filing and relied for this submission on the cases of Aja v. Okoro (1991) 7 NWLR (Pt. 203) 260 and Okolo v. USN Ltd. (2004) 3 NWLR (Pt. 859) 87.

As to whether the trial Judge failed to consider any material and/or relevant issue properly raised before him which is the contention in issue No.3, learned counsel for the 1st respondent submitted that it is not correct to say that a Judge must pronounce on every point raised before him but he should pronounce on every material point requiring resolution between the parties. He maintained that the question whether a plaintiff could file an application for an injunctive relief even before filing the writ was never an issue for resolution before the lower court and the mere fact that learned counsel alluded to it in reply to points of law did not make it a material point warranting the pronouncement or resolution by the learned trial Judge.

In considering issue No.4, learned counsel for 1st respondent stated that the 2nd-8th respondents entered a conditional appearance and filed a preliminary objection to the competence of the motion of 4/4/2005 and the jurisdiction of the lower court. He said the depositions in paragraphs 3, 5, and 6 of the affidavit in support which were not challenged or controverted and which were acted upon by the learned trial Judge showed that the writ of summons was served on 2nd-8th respondents on 12th April, 2005 and prior to that time there was no suit pending before the court. He submitted that the filing of the preliminary objection in the case completely changed the substance and coloration of the question of wilful disobedience or deliberately taking precipitated steps by the respondents after becoming aware of a motion to restrain. The duty of a court whose jurisdiction to entertain any process is challenged argued counsel, is to determine the question of jurisdiction first before considering any other issue for it is settled law that once a court has no jurisdiction to adjudicate on any matter, then any proceeding no matter how well conducted by it, is a nullity and once counsel is aware of any point of law that will determine any question without going into hearing, the party is entitled to raise it by way of preliminary objection. He cited the following cases in support of the contention: Madukolu v. Nkemdilim (1962) 1 All NLR 587; (1962) 2 SCNLR 341; State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33; Okoi v. Ibiong (2002) 10 NWLR (Pt. 776) 455. Learned counsel submitted that having found the writ of summons of 4/4/2003 incompetent, the learned trial Judge could therefore not have relied on the motion of even date which was predicated on the incompetent writ as a basis to set aside the 1st respondent’s installation as the Emir of Kanam.

He sought to distinguish the cases of Lagos State v. Ojukwu supra; Obeya Memorial Hospital v. A.G., Federation (1987) 3 NWLR (Pt. 60) 325; Globe Fishing Industries Ltd v. Coker (1990) 7 NWLR (Pt.162) 265; Odogwu v. Odogwu (1991) 8 NWLR (Pt. 208) 253 and Sulu-Gambari v. Bukola (2004) 1 NWLR (Pt. 853) 122 on the ground that the appellant has not established a proposition that an incompetent process can support the granting of a relief by a court and the grant or refusal of an order of injunction is in the discretion of the lower court. He submitted that it is not every situation where a party has taken a precipitated action that such action must be set aside as every case must be considered in the light of its own peculiar circumstances and facts. He further submitted that even if the defendants completed the act after having been served with a notice of a motion seeking to restrain the act, the court has a duty to consider the fairness of the act. He therefore urged this court not to set aside the installation of the 1st respondent nor restrain him from parading himself as the Emir of Kanam.

Learned counsel for the 2nd-8th respondents in the lone issue he formulated for determination referred to Order 5 rule 1 of the Plateau State High Court (Civil Procedure) Rules on who is authorised to issue summonses and submitted that in Plateau State it is only a Judge of the High Court that is empowered to issue writ of summons and that no officer of court has been authorised in the State to issue writ of summons either by practice direction or written authorisation by the Chief Judge of the State. Learned counsel sought to distinguish this case from the case of S.C.C. Ltd. v. Elemadu (2005) 7 NWLR (Pt. 923) 28 on the ground that authority to sign the writ was given in S.C.C. Ltd. v. Elemadu supra but such authority is absent in the present case. He argued that the appellant was aware of the incompetent writ filed on the 4/4/2005 and so had to file another writ which was signed and issued by the Judge on 11/4/2005 and served on the 2nd-8th respondents on 12/4/2005. He argued that the signing of the writ of summons by the Registrar rendered the process of 4/4/2005 which was served on 2nd-8th respondents null and void as there was neither life or force of law in that process. He therefore submitted that the case of Famfa Oil Limited v. Attorney-General of The Federation supra is not authority for this appeal; neither is it relevant for the determination of the appeal. He said that Order 7 rule 8 of the Federal High Court Rules, 2000 which stipulates that “An originating summons is issued upon its being signed by a Judge in chambers” is not analogous with Order 5 rule 1 as the latter provision is only permissive.

Learned counsel proceeded to reply issues 2 and 3 in the appellant’s brief. On issue 2, learned counsel referred to pages 165-198 of the records which contain the arguments of counsel on the validity or otherwise of the writ of summons issued by the Registrar and the ruling of the court on page 199. Learned counsel argued that as the said writ of summons was a document before the court which was the subject of the preliminary objection, the court could take judicial notice of the records before it in accordance with section 74 of the Evidence Act. He said there was nothing wrong for the Judge to comment on such documents. He contended that it is self contradictory for appellant’s counsel to argue in one breadth that the Registrar being a court official, is authorised to sign writ of summons and proceed in another breadth to contend that the mistake or sin of counsel should not be visited on the litigant. In the view of learn’ed counsel it amounts to an admission that the process which was signed by the Registrar and served on the 2nd-8th respondents on 4/4/2005 was not valid and this supports the argument on the issue formulated by their counsel. Learned counsel then aligned himself with the submission made by counsel for the 1st respondent that the learned trial Judge is not bound to pronounce on all issues raised in the address of counsel but should consider material points requiring resolution between the parties.

The contention of learned counsel for all the respondents in their interpretation of Order 5 rule 1 of the Plateau State (Civil Procedure) Rules, 1987 that for a person to qualify as “authorised officer” to issue a valid writ, there must be a positive appointment or instrument issued by the Chief Judge such as a practice directive to that effect, cannot be correct in view of the decisions of the Supreme Court and the Court of the Appeal on the issue. Some of the decisions include Alawode & Ors. v. Semoh (1959) vol. 1 NSCC 36 (1959) SCNLR 91; Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387; Famfa Oil Limited v. Attorney-General of the Federation (2003) 18 NWLR (Pt.852) 453; Fada v. Naomi (2002) 4 NWLR (Pt. 757) 318; and S.C.C. (Nig) Limited v. Elemadu (2005) 7 NWLR (Pt. 923) 28.

In Alawode v. Semoh supra, the argument centred round the interpretation of the word “commenced” as applicable to Order 2 rule 1, Supreme Court Rules which is in pari materia with Order 5 rule 1 of the Plateau State (Civil Procedure) Rules, 1987. This was to ascertain whether the action brought under the Fatal Accidents Act was within time or it was statute barred as provided under section 3 of the Act. The accident which resulted in the death of the plaintiffs’ relation occurred on 2nd August, 1956 and the application for the writ which was paid for was made on 2nd August, 1957 but the writ was not signed by the Judge until 8th August, 1957 which was outside the 12 calendar months period stipulated in section 3 of the Act for instituting the action. The Lagos High Court dismissed the plaintiffs’ action as being statute barred. The plaintiffs appealed to the Federal Supreme Court and the appeal was allowed. The said Order 2 rule 1 reads as follows:

“Every suit shall be commenced by a writ of summons signed by a judge magistrate or other officer empowered to sign summons. The writ of summons shall be issued by the registrar, or other officer of the court empowered to issue summons, on application. The application shall ordinarily be made in writing but the registrar or other officer as aforesaid where an applicant for a writ of summons is illiterate may dispense with a written application and instead himself record full particulars of the oral application made and on that record a writ of summons may be prepared, signed and issued.”

In construing the provision, Ademola F.C.J. considered the practice under the English Rules and what obtains in Nigeria and stated the test to be adopted for the commencement of an action when he said at page 39:

“The test for the commencement of an action both according to the English rules and the local rules of court appears to me to be this: has the plaintiff done all that is required of him by law to commence his action?

In England, all he has to do is to buy the writ and endorse it. In Nigeria he has to make an application to the Registrar and pay the necessary fees. From then on, his responsibility ceases and what is left to be done is a domestic affair of the court and its staff. From the time the plaintiff, in Nigeria, delivers his application to the Registrar (provided it is not an action in which the consent of the court is necessary before the writ is issued), and he pays the necessary fees, it will in my view, be correct to say that an action or a suit has been “commenced”.

Whatever delay is occasioned before the issue of the writ is a matter not within the power of the plaintiff to control but merely a domestic affair of the court for which the plaintiff cannot be penalized. It certainly would be a matter of grave injustice to a plaintiff who delivers his application for a writ and pays the necessary fees if he is deemed not to have commenced an action merely because, for some reason, it was not possible for the court or the Judge to sign the writ for a fortnight or so after the application.”

The same view was adopted by Agbaje, JSC in Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 and applied by Salami, JCA in Fada v. Naomi (2002) 4 NWLR (Pt. 757) 318. In Famfa Oil Limited v. Attorney-General of The Federation (2003) 18 NWLR (Pt. 852) 453, Belgore, JSC (as he then was) held that the action of the registrar who cancelled the word “Judge” and superimposed his own signature on the originating summons which led to the Judge not signing the summons was a mere procedural irregularity and so did not render the summons a nullity. He explained that the plaintiff taking out originating summons deals with court officials, registrars, and not with the Judge. The registrar is to take the summons to the Judge in chambers to sign (which is administrative) and the plaintiff in such a situation has no supervisory power over the process leading from the registrar to the Judge in chambers. In S.C.C. (Nig.) Limited v. Elemadu (2005) 7 NWLR (Pt. 923) 28 where one of the issues which was canvassed on appeal was whether or not an amended writ of summons that was not endorsed by the Honourable Judge after the amendment did not deny the honourable court jurisdiction, it was held that an omission to sign a writ of summons, or an originating summons or an amendment thereto is a mere procedural irregularity which does not render the originating summons or the writ, or the statement of claim void which was likened to a Judge not signing a summons to admit an accused person to bail. In all the authorities considered above, it was clear that the plaintiffs had paid for the writ. If that had been the position in the instant case, notwithstanding the fact that the registrar endorsed the writ, it would still have been a valid writ. The assessments for the processes filed by learned counsel for the appellants were endorsed on the writ which was signed by the Judge on 11/4/2005 (as shown on page 9 of the records). All the processes were paid for on 4/4/2005. But the writ which learned counsel for the appellant served on the respondents between 4/4/2005 and 5/4/2005 and signed by the Registrar was not assessed nor paid for. It is learned counsel for the appellant that created the confusion. I am of the considered view that if the writ signed by the Registrar was the one assessed, paid for and served on the respondents between 4th and 5th April, 2005, it will be deemed to have been properly issued and the signature of the Judge will become the domestic affair of the court as decided in Alawode v. Semoh and Famfa Oil Limited v. Attorney-General of The Federation supra. The writ which the appellant’s counsel served on the respondents between 4th and 5th April, 2005 is declared a nullity by reason of the fact that the fees were not assessed and paid and not because the registrar lacked authorization to sign or issue the writ.

The learned counsel for the appellant ought to have acquainted himself with the law and practice applicable in Plateau State on the issuance of a valid writ.

The nullification of the writ issued by the Registrar cannot ipso facto affect the validity of the other processes i.e. statement of claim, the motion on notice and the motion ex-parte which were assessed and endorsed on the writ which the Judge issued on 11/4/2005.

Learned counsel for the appellant contended and I agree with him that pursuant to Order 33 rule 3 of the Plateau State (High Court) Civil Procedure Rules and the decision in the case of Intercontractors (Nig.) Ltd. v. U.A.C. (1988) 2 NWLR (Pt. 76) 303 at 307 a plaintiff is allowed to file an application for injunction before the writ by which the action to be commenced is filed in cases of urgency and on such terms if any as the court may think fit. Order 33 rule 1 of the Plateau State High Court (Civil Procedure) Rules provides as follows:

“O.33 r. 1(1) An application for the grant of an injunction may be made by any party to an action before and after the trial of the action, whether or not a claim for injunction was included in that party’s action.

(2) Whether the applicant is the plaintiff and the case is one of urgency, such application may be made ex-parte on affidavit but, except as aforesaid, such application shall be made by motion on notice or summons.

(3) The plaintiff may not make such application before the issue of the process by which the action is to be begun, except where the case is one of urgency, and in that case the injunction applied for may be granted on terms providing for the issue of the process and such other terms if any, as the court thinks fit.

The validity of the motion on notice for the injunctive reliefs to forestall the recognition and turbanning of the Emir of Kanam which took place on 9/4/2005 cannot be predicated on the existence of a valid writ which is the argument that has been canvassed by learned counsel for the 2nd – 8th respondents. Instead, the Judge would have been required to make an order for the filing of the writ as one of the conditions for granting the interlocutory injunction. See: Halsbury’s Laws of England, 4th Edition, Volume 10, paragraph 250.

This brings me to the last issue whether a party to a proceeding who has been duly served and/or put on notice of an application for injunction to restrain him from taking a step can argue that he can no longer be bound because he has completed the act. Learned counsel for the appellant relied on Military Gov., of Lagos State v. Odumegwu Ojukwu (1986) (Pt.1) NSCC 304; (1986) 1 NWLR (Pt.18) 621; Registered Trustee of The Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt. 158) 154; Odogwu v. Odogwu (1991) 8 NWLR (Pt. 208) 253; Praying Band of C & S v. Udokwu (1991) 3 NWLR (Pt. 182) 716; Okoya v. Santilli (1991) 7 NWLR (Pt. 206) 753; Ezegbu v. F.A.T.B. Limited (1992) 1 NWLR (Pt.220)699; Sulu Gambari v. Bukola (2004) 1 NWLR (Pt.853) 122 and other foreign authorities to submit that where a party sought to be restrained deliberately proceeds with the action intended to be restrained by an order of injunction after becoming aware of the pendency of the application before a competent court for his restraint, such a party will not be allowed to profit from this misconduct or total disrespect to the court of law. He maintained that the respondents in total disregard and disobedience to the court below went ahead on Saturday the 9th day of April, 2005 to install and coronate the 1st respondent as the Emir of Kanam, the exact action that the motion was seeking to restrain.

The learned trial Acting Chief Judge in considering the motion for the injunctive reliefs held that no order or valid writ/court processes have been issued and served on the defendants for which they can be held liable for contempt and that it will be improper on the part of the court to hold the defendants contemptuous for a purported writ not issued by a Judge or authorized. He reasoned that the balance of convenience tilts in favour of the respondent as it will cause him much inconvenience to move out of the palace merely on an interlocutory application but if the case is finally determined in favour of the plaintiff/applicant, the respondent will vacate and surrender the palace to the winner. He concluded that the plaintiff is not prejudiced in any way by the occupation of the palace by the 1st defendant/respondent.

Where a party to an action seeks to foist a fait accompli on the court, such action is usually deprecated by the court and the court will usually grant an interlocutory injunction to protect a legal right. See: Vaswani v. Savalakh (1972) 1 All NLR (Pt. 2) 483. Although the action of the 2nd-8th respondents in carrying out the installation of the 1st respondent as Emir of Kanam on 9/4/2005 after they were served with the affidavit of urgency and motion on notice on 4/4/2005 is to be condemned, they cannot be said to have been in contempt of an order of court since no restraining order had issued from the court. No date was fixed for the hearing of the motion before 9/4/2005. In fact, the learned trial Acting Chief Judge signed the writ on 11/4/2005 and it was issued on that day. This case is therefore distinguishable from the cases of Military Administrator of Lagos State v. Ojukwu; Sulu-Gambari v. Bukola supra; Odogwu v. Odogwu (1991) 8 NWLR (Pt. 208) 253; Praying Band of Cherubim & Seraphim v. Udokwu (1991) 3 NWLR (Pt. 182) 716 and Ezegbu v. F.A.T.B. Ltd. (1992) 1 NWLR (Pt. 220) 699, because the matter had not been submitted to the court for adjudication. The rights which were subject of the injunctive reliefs in those cases had crystallized whereas in this case the right is still inchoate. It will become crystallized after the substantive action has been determined. In Sulu-Gambari v. Bukola for example, the respondent who sought and was granted the interlocutory injunction had been removed as the Alaboto of Aboto and one Mallam Kasali Yakubu was appointed to replace him.

Following the appointment, he brought an action before the lower court, claiming among other things, a declaration that he is still the Alaboto of Aboto-Oja in Asa Local Government Area. He filed simultaneously a motion on notice praying the court for the following reliefs:

1. An order of interlocutory injunction restraining the 1st and 3rd defendants, their agents, privies servants or howsoever called from recognizing or installing or performing any act of coronation of 2nd defendant as the Alaboto of Aboto Oja pending the hearing and determination of the substantive suit.
2. An order of interlocutory injunction restraining the 2nd defendant herein Mallam Kasali Yakubu from parading himself, calling or ascribing to himself the title of Alaboto of Aboto-Oja or in any other way portraying himself as such, pending the hearing and determination of the substantive suit.
3. An order of interlocutory injunction compelling the 1st and 3rd defendants to recognize and treat the plaintiff/applicant herein as Alaboto of Aboto-Oja, Asa Local Government Area, Kwara State pending the hearing and determination of the substantive suit.”

The application succeeded in part and Mallam Kasali was restrained from parading himself, calling or ascribing to himself the title of Alaboto of Aboto-Oja or in any way portraying himself out as such pending the determination of the suit. The respondents were dissatisfied with the ruling and appealed against it and one of the issues raised for determination was whether the trial court was right in the manner it exercised its discretion in granting an order of interlocutory injunction in favour of the respondent when the action to be restrained has already been completed and more so that the res i.e. the stool of Alaboto of Aboto-Oja is not a perishable commodity.

The court of Appeal while not expressing a view on the lower court’s ruling that the respondent established by his affidavit evidence and his statement of claim that he acquired a legal right to the stool of Alaboto of Aboto-Oja as he was appointed to the stool since 1998 because there was no appeal against it, held while dismissing the appeal, that the onus is on an applicant for an interlocutory injunction to establish that the balance of convenience is on his side and that the applicant set out clearly in his affidavit in support of the application the inconvenience he will suffer. The court also noted the observation of Katsina-Alu, JCA (as he then was) in Gwarbo Gever & Ors. v. China (1993) 9 NWLR (Pt. 315) 97 in regard to the fact that the 2nd appellant had not started to function when the respondent filed his interlocutory application in allowing the injunction to stand. In his concurring judgment Onnoghen, JCA (as he then was) relying on Daniel v. Ferguson (1891) 2 Ch. 27 held that whereas it is the general principle of law that an injunction cannot be granted to restrain a completed act, where the party sought to be restrained deliberately proceeds with the action intended to be restrained by an order of injunction after becoming aware of the pendency of an application before a competent court for his restraint the injunction should be granted. He reasoned that to condone such a situation would amount to encouraging “executive lawlessness” which will only jeopardize the rule of law and civilized conduct.

The case of Von Joel v. Hornsey (1895) 2 Ch. 774 followed the decision in Daniel v. Ferguson supra. In that case the defendant was erecting a building near the plaintiff’s house. The plaintiff warned the defendant that if the building were continued he would sue to restrain it as an obstruction of his ancient lights. After action was brought the defendant evaded service for several days and in the meantime continued the building till substituted service on him was effected. It was held affirming the decision of Kekewich J. that the defendant’s evasion of the writ brought the case within the principle of Daniel v. Ferguson supra and that the plaintiff was entitled to an interlocutory mandatory injunction ordering the defendant to pull down so much of the building as had been erected after the plaintiff had informed the defendant that he intended to bring an action.

Learned counsel for the appellant argued that the appellant did not disobey the order of the court and there is no case which goes so far as to order a defendant on an interlocutory motion to pull down a building unless it had been erected in defiance of the court. Lindley L.J. disagreed when he said at page 776:

“Now, having regard to the letter written by the plaintiff’s solicitor on May 23, and to the affidavits, the conclusion is irresistible that the building was hurried on as fast as the defendant could hurry it on after May 23 in order that he might say, “I have got it up” .

The court will not allow itself to be imposed upon by a proceeding of that kind. If builders will take the chance of running up a building in that way they must take the risk of pulling it down;”

Concurring to the judgment Lopes, L.J. said: “The learned trial Judge has granted an injunction to prevent this building being further proceeded with until the trial, and he has also ordered, by a mandatory injunction, that a certain portion of the building should be pulled down: that portion is only the portion which has been erected since May 23. On May 23 a letter was written to the defendant, and I have not the slightest doubt that he did all he could to evade the service of the writ ….In the meantime instructions are proved to have been given to the foreman, as the foreman states, to hurry on the building, and to do that in defiance of the plaintiffs and of the proceedings before the court. Under these circumstances the principle in Daniel v. Ferguson supra applies to this case”.

The granting or refusal of a mandatory injunction is at the discretion of the court hearing the application. An appellate court will not generally question the exercise of discretion by a lower court merely because it would have exercised this discretion in a different way if it had been in the position of the lower court.

However, such an exercise of discretion would be questioned, if as a result of such exercise, injustice is meted out to either of the parties or, if the discretion is wrongly exercised in that due or sufficient weight was not given to relevant or important considerations. See: Olumesan v. Ogundepo (1996) 2 NWLR (Pt. 433) 628. If the exercise of the discretion by the lower court has not been found to be perverse, arbitrary and judicial, then the appellate court will not interfere See: Bank of Baroda v. Mercantile Bank Limited (1987) 3 NWLR (Pt. 60) 233; Bakare v. A.C.B. Ltd. (1986) 3 NWLR (Pt. 26) 47; Oshunrinde v. Akande (1996) 6 NWLR (Pt. 455) 383.

In paragraphs 28 and 29 of the affidavit in support of the motion for injunction which was deposed to by the appellant, he averred as follows:

That I was informed by Chief Afe Babalola, OFR, SAN, LL.B, my counsel in this suit and I verily believe him as follows:

(i) that our superior courts had held in plethora of cases that balance of convenience where installation and process of coronation have not been done favours the granting of an injunction and/or preserving ‘res’ so as to prevent an unnecessary long waiting litigation to undo what has been done to the plaintiff succeed (sic)

(ii) that the superior courts had also held that the embarrassment, humiliation and attendant ignominy which the dethronement of an installed and coronated chief usually attract should be avoided.

(iii) that the fraud, illegality and irregularity that dotted the selection and approval of the 1st defendant/respondent will continue to desecrate and lower the high esteem and regalia of the throne of Emir of Kanam if he is installed and coronated.

That Plateau State is a volatile State and the refusal of this application may lead to mass protest and chaotic situation”.

These depositions are expressions of personal opinion and they are rather speculative. In any event, it is impossible to lay down a general rule regulating the exercise of the discretion of the court in all cases since the exercise of discretion depends on the facts and circumstance of each case and in matters of discretion no one case can be authority for the other see: Bulama v. Federal Republic of Nigeria (2004) 12 NWLR (Pt.888) 498. Looking at the reasons given by the learned trial Acting Chief Judge for refusing to grant the injunction, it cannot be said that he failed to give sufficient weight to relevant or important considerations to the facts contained in the affidavit in support of the motion. It is also not perverse and arbitrary.

I find that the appeal has no merit and it is accordingly dismissed. Since healing has commenced and to forestall the possible breakdown of law and order, an accelerated hearing and determination of the substantive suit is hereby ordered. The parties are to bear their own costs.

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Other Citations: (2006)LCN/2114(CA)