Chief Adebayo Adefarati V. Governor of Ondo State & Ors (2005)

LawGlobal-Hub Lead Judgment Report

AMAIZU, J.C.A.

This is a motion on notice praying the court for the following reliefs –

“i) An order of injunction restraining the 3rd-9th defendants/respondents either by themselves, agents, privies, servants, or through any person or persons howsoever from sitting or further sitting, preparing a report or further preparing a report, making recommendation or further making recommendation, submitting a report or recommendation in respect of its sitting or investigation or enquiry to the 1st and 2nd respondents until the final determination of:

(a) The appeal filed by the plaintiff/applicant against the ruling of the lower court dated 11th November, 2004 refusing the appellant’s prayer for injunction.

(b) The final determination of the weighty constitutional questions referred to the Court of Appeal.

(ii) An order of injunction restraining the 1st and 2nd defendants/respondents either by themselves, agents, privies, servants or through any persons however from considering or acting upon or executing or causing to be executed, implementing or causing (particularly against the appellant/applicant herein the report or recommendation of the 3rd-9th defendants/respondents (whether already submitted or not) pending the final determination of:

(a) The appeal filed by the plaintiff/appellant/applicant against the ruling of the lower court dated 11th November, 2004.

(b) The final determination of the constitutional question referred to the Court of Appeal by the lower court, on 11th November, 2004.

(iii) An order accelerating the hearing of the substantive case as referred to the Court of Appeal by the lower court, as well as the substantive appeal on injunctive reliefs.

(iv) And for such further order(s) as this Honourable court may deem fit to make in the circumstances.”

The motion is brought pursuant to order 3 rule 3 (1) of the Court of Appeal rules. And it is supported by an affidavit of twenty-nine paragraphs. The relevant paragraphs of the affidavit are:

“5. I know as a fact that an originating summons with a supporting affidavit and exhibits as well as a motion on notice with affidavit in support and exhibits were filed contemporaneously on 13/08/04 by the applicant before the lower court.

6. I know as fact that all processes filed in this case before the lower court were served on the respondents herein on 20th August, 2004. Now shown to me, attached herewith and marked as exhibits 1,2,3 and 4 are copies of the affidavit of service respectively.
7. I know as a fact that the appellant/applicant herein was the Governor of Ondo State between May, 1999 and May, 2003 having been elected into the office under the platform of the Alliance for Democracy (AD).
8. The appellant/applicant and the 1st defendant/respondent contested the Governorship election in Ondo State in 1999 and he defeated him.
9. 15t defendant/respondent contested the same Governorship seat with the appellant/applicant in April, 2003 and won.
10. 2nd defendant/respondent is the Chief Law Officer of Ondo State, while the 3rd defendant was set up by 1st defendant/respondent by an instrument dated 6lh July, 2004. Now shown to me, attached herewith and marked as exhibit 5 is a copy of the Instrument setting up the 3rd defendant.
11. .The 4th, 5th, 6th, 7th, 8th and 9th defendants are members of the 3rd defendant.
12. The 4th defendant is a Judge of the High Court of Ondo State, while the 5th defendant is a Professor of Law and Dean, Faculty of Law of Adekunle Ajasin University, Akungba-Akoko, Ondo State.
13. Appellant/applicant informed me and I verily believed as follows:

(i) Before issuing exhibit 5, 1st defendant/respondent had inter alia set up a Contract Review Committee which roundly condemned him and his administration for diverse malpractices without giving them any opportunity to be heard.

(ii) All items contained in exhibit 5 are the same with those already looked into by the Contract Review Committee.

(iii) Each of the subjects mentioned under paragraph 2 (i) (ii) and (iii) of exhibit 5 is regulated by valid and subsisting contracts entered into by the Ondo State Government and the respective contractors and or companies.

(iv) Each of the said contracts has a provision stipulating that any dispute or disagreement arising there from shall be referred to arbitration.

(v) The sum of N560,000,000.00 (Five Hundred and Sixty Million Naira) referred to under paragraph 2(iv) of exhibit 5 relates to classified security votes expenses incurred by the applicant as the Chief Executive of Ondo State.

(vii) A Chief Executive is not expected to make public to any Commission of Inquiry or to any person how he spends security votes.

(viii)- Item 3(d) of exhibit 5 empowers the Commission of Inquiry to recommend sanctions against’ the applicant and his government in respect of the matter listed in exhibit 5.

(ix) As the Chief Executive of Ondo State, applicant was the Chief Security Officer as well.

(x) As Governor of the state, applicant was also the one who had the final say in respect of the matter listed in exhibit 5.

(xi) The setting up of the Commission of Inquiry was done purposely to indict the applicant and his administration.

(xii) Exhibit 5 does not contain:

(a) The venue of sitting of the said Commission;

(b) The time of sitting of the said Commission;

(c) The time limit within which the Commission is to submit its report;

(d) The secretary to the Commission.

(xiii) Further to sub-paragraph (xii) supra, appellant/applicant and members of his executive council are confused as to the particulars enumerated in sub-paragraph (xii) above.

(xiv) Exhibit 5 has been deliberately couched the way it is to put the applicant and his associates under an indefinite investigation and harassment.

(xv) Before assuming the office of Governor on 29th May, 1999, the applicant took an Oath of office as prescribed by the Constitution not to divulge or communicate to anybody some secrets relating to his duties as Governor.

(xvi) Some of the secrets include how the applicant expended security votes and handled security matters of the state.

(xvii) Applicant has never been invited nor received any summons to attend any of the proceedings of the 3rd respondent.

14. I know as a fact that the applicant’s motion was slated for hearing on 15/10/2004 but had to be adjourned to 19/10/2004 on the application of the Honourable Attorney-General of Ondo State, D. I. Kekemeke Esq. who said that he did not prepare for same.
15. I also know as a fact that on the same 15/10/2004, the same Honourable Attorney-General of Ondo State, D.I. Kekemeke, Esq. told the court from the Bar and in my presence that the 3rd respondent had completed its public sitting.
16. Despite paragraphs 13 and 14 supra, 3rd respondent caused announcements to be made on the Ondo State Radio Corporation beginning from Friday, 15th extending to Saturday, 16th, Sunday, 17th and Monday, 18th October, 2004 compelling the applicant and his political associates to appear before it unfailingly on 28th October, 2004.
17. Applicant told me and I verily believed that the applicant and his political associates are the target of the respondents.
18. I know as a fact that arguments were taken in respect of the applicant’s motion on 19th October, 2004 by the lower court and the case was adjourned to 11th November, 2004 for ruling.
19. I know as a fact and by virtue of my position as counsel that the record of proceedings of the lower court has been transmitted to the Court of Appeal.
20. I know as a fact that in her ruling of 11th November, 2004 the lower court referred the constitutional questions to the Court of Appeal but refused the prayer for injunction. The said ruling on pages 224 to 237 of the record.
21. Being dissatisfied by the said ruling, appellant/applicant has appealed against same to this court. The notice and grounds of appeal are on pages 238 to 244 of the record.

In moving the motion, Chief Olanipekun, SAN, of counsel referred to the affidavit in support of the motion, and the counter affidavit of the respondents. He reminded the court that the lower court following his application before it, referred constitutional issues relating to the said application to this court.

According to the learned SAN, he showed his good faith by compiling the record of proceedings in the lower court within ten day after ruling of the court. He has also filed his brief of argument in respect of his appeal against the ruling. He challenged the constitutionality; the validity of setting up of the Commission of Inquiry by the 1st respondent. The learned SAN referred to the case of Senator Abraham Adesanya v. The President of the Republic of Nigeria & Ors. (1981) 2 NCLR 358 at 362. He submitted that when a matter is referred to the Court of Appeal by a High Court, the lowercourt should not make any pronouncement on the matter so referred, but should leave the matter to the appellate court to reach a decision, and make a pronouncement thereafter.

The learned SAN also referred to other cases including the following:

1. Obeya Memorial Specialist Hospital v. A-G of Federation (1987) 3 NWLR (Pt. 60) 325
2. Alhaji Danlami Zango v. Military Governor of Kano State (1986) 2 NWLR (Pt. 22) 409.
3. Doma v. Ogiri (1998) 3 NWLR (Pt. 541) 246.

He urged the court to protect the res. He referred to the originating summons in respect of the main suit. He reminded the court that it was filed on the 13th of August, 2004. That, notwithstanding, the authorities (respondent) went on with the commission of inquiry. He urged the court to grant the application.

In his reply, Akinrinsola, Esq. of counsel submitted that an interlocutory injunction is not a remedy for a completed act. He referred to paragraphs 1, 19 and 20 of the counter affidavit filed by the 1st to 9th respondents. He conceded that the motion on notice to restrain the 3rd – 9th respondents from sitting was filed on 13th August, 2004. It was argued on the 25th of October, 2004. The ruling was delivered on 11th of November, 2004. The commission of inquiry on the other hand, completed its work on 10th November, 2004. He referred to the following cases:

1. Chief Al Akapo & Ors. v. Aihaji H.A. Hakeem Habeeb & Ors. (1992) 6 NWLR (Pt. 247) page 266.
2. CCB (Nig) Plc. v. Okapalla (1997) 8 NWLR (Pt.518) 673.

He observed that the cases relied on by the learned SAN were decided in 1980 or thereabout. On the other hand, the cases he relied on were decided later. It is his view that the law is dynamic.

He reminded the court that there is no application for a mandatory injunction before this court. He referred to the case of Anyah v. ANN Ltd. (1992) 6 NWLR (Pt. 247) page 319. And further that there is an appeal against the ruling of the lower court for refusing to grant an interim injunction restraining the 2nd to 9th respondents. He advised that this court should be careful not to have two parallel rulings/judgments in respect of the same matter. He urged the court to refuse the application.

The law with respect to interim injunction has been aptly described by Coker, J.S.C. in the case of Ladunni v. Kukoyi (1972) 1 All NLR (Pt. 1) 133 as constituting one of the most difficult sections of our law. The difficulty exists not because the law is recondite but because the ascertained principle must be subjected at all times to rather amorphous combination of facts which are perpetually different in every case. It is now accepted that the object of an interlocutory injunction is to protect the applicant against injury by violation of his right for which he could not be adequately compensated on damages recoverable in the action, if the uncertainty were resolved in his favour at the trial. In the present case, at this stage, there can be no determination of the legal right of the applicant because pleadings have not been filed, no issue has been joined and no oral evidence adduced. There cannot therefore, be any findings on the merits. What is required at this stage, is not for the applicant to make out a case as he would do on the merits, it being sufficient that he should establish that there is a substantial issue to be tried at the hearing. (Kufeji v. Kogbe (1961) 1 All NLR 113.

It has to be remembered also that the applicant’s need for protection by way of an interlocutory injunction must be weighed against the corresponding need of the respondents to be protected against injury resulting from their having been prevented from exercising their legal rights for which they might not be adequately compensated in damages if the uncertainty were resolved in their favour at the trial.

In the present case, a Commission of Inquiry was instituted by the Governor of Ondo State. The affidavit evidence before us shows that when the originating summons was filed on the 13th of August, 2004, the inquiry if it had started sitting, has not completed its assignments. It was brought to the notice of the respondents through service on them of the present motion on notice on 20/8/2004, the existence of this application.

In this regard, I refer to the relevant paragraph of the counter affidavit. Paragraph 22 thereof reads:

“That the commission of inquiry had 3 months to conclude its investigation has completed the assignment and wound up since 10/11/2004.”

I entirely agree with the submission of the learned counsel for the respondent that an interlocutory injunction is not a remedy for a completed act.

The general practice, which has been sanctioned by our court, is that on an application for an order for an injunction, all activities affecting the res are automatically terminated as a mark of respect to the court before which the application is pending. If as in the present case, the respondents ignored the notice of the pending application of interlocutory injunction and continued as if nothing has happened, they cannot use their present illegal position to create a status quo. See Military Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) page 621.

It is to be remembered that an interlocutory injunction is an equitable remedy. He who comes to equity must come with clean hands. It is my view that the respondents cannot rely on the fact that the commission of inquiry has completed its assignment when their hands are not clean. This is more so as this court has to decide on the constitutional issues referred to it.

In my view, the applicant has established that there is substantial issue to be tried at the hearing including constitutional issues. Taking all the facts of this case into consideration, I hereby grant the application. It is the order of this court that:

“The 1st and 2nd defendants/respondents either by themselves, agents, privies, servants or through any person or persons howsoever, from considering or acting upon or executing or causing to be executed, implementing or causing to be implemented (particularly against the appellant/applicant herein the report or recommendation of the 3rd – 9th respondents (whether already submitted or not) pending the final determination of:

(a) The appeal filed by the plaintiff/appellant/applicant against the ruling of the lower court dated 11th November, 2004.

(b) final determination of the constitutional questions referred to the court on 11th November, 2004.”

I make no order as to costs.

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Other Citations: (2005)LCN/1765(CA)