Christlieb Plc & Ors V. Ademola Majekodunmi & Ors (2008)

LawGlobal-Hub Lead Judgment Report

REGINA OBIAGELI NWODO, J.C.A.

The Respondent Applicants Ademola Majekodunmi and Dr. Ime Ebong by way of Motion on Notice dated 4 September 2007 filed the same date pursuant to Order 4 Rules 3 and 5 of the 2007 Court of Appeal Rules and S15 of the Court of Appeal Act and the inherent power of the Court seeks the following orders:

“1. An ORDER voting and or suspending the interim orders of the Federal High Court per Honourable Justice I. I. Ejiofor in Suit No. FHC/L/CS/1208/05 – CHRISTLIEB PLC & ORS VS. ADEMOLA MAJEKODUNMI & ANOR of 12th December, 2005 and 29th March, 2006 pending the determination of the Appeal dated and filed on 7th March, 2007 by the Appellants/Respondents;

2. An ORDER allowing, the Respondents/Applicants to take possession of the assets, premises, goods and property of CHRISTLIEB PLC situate at No. 39, Creek Road, Apapa, Lagos and the fixtures and buildings thereon which the Appellants had taken possession of since 9th May, 2006 as the Suit No. FHC/L/CS/1208/05 – CHRISTLIEB PLC & ORS VS. ADEMOLA MAJEKUDUNMI & ANOR had been dismissed on the 6th of March, 2007;
3. An ORDER directing the Chief Registrar/Deputy Sheriff of the Federal High Court to assist the Respondents! Applicants in securing the possession of the assets, premises, goods and property of CHRISTLIEB PLC situate at No. 39, Creek Road, Apapa, Lagos and the fixtures and buildings therein which the Appellants had taken possession of since 9th May, 2006 as the Suit No. FHC/L/CS/1208/05 – CHRISTLIEB PLC & ORS VS. ADEMOLA MAJEKODUNMI & ANOR had been dismissed on the 6th of March, 2007;
4. An ORDER directing the Inspector-General of Police and Deputy Inspector General of police Zone II, the Commissioner of Police, Lagos State Command and the Deputies, Assistants and all other officers under their command/control to assist the Respondents/Applicants in securing the possession of the assets, premises, goods and property of CHRISTLIEB PLC situate at No. 39 Creek Road, Apapa, Lagos, which the Applicants/Respondents had taken possession of since 9th May, 2006 as the Suit No. FHC/L/SC/1208/05- CHRISTLIEB PLC & ORS VS. ADEMOLA MAJEKODUNMI & ANOR had been dismissed on the 6th of March, 2007;
5. An ORDER directing that inventory of the assets, goods and property of CHRISTLIEB PLC situate at No. 39, Creek Road, Apapa, Lagos be taken by the Inspector General of Police and Chief Registrar/Deputy Sheriff;
6. An ORDER directing the Appellants/Respondents to deposit the title documents of the property at No. 39, Creek Road, Apapa, Lagos belonging to CHRISTLIEB PLC in Appellants/Respondents’ possession with the Chief Registrar of this Honourable Court pending the determination of this Appeal as the Suit No. FHC/L/CS/1208/05 – CHRISTLIEB PLC & ORS VS. ADEMOLA MAJEKODUNMI & ANOR had been dismissed on the 6lh of March, 2007;
7. An ORDER allowing the Respondents/Applicants to pay the sum of N219, 738,051.64 (two hundred and nineteen million, seven hundred and thirty eight thousand, fifty one naira, sixty four kobo) to the Court in the name of the Deputy Chief Registrar alleged by the Appellants/Respondents to be the sum outstanding and due to the 3rd Appellants/Respondents from CHRISTLIEB PLC in Suit No. FHC/L/SC/1208/05 CHRISTLIEB PLC & ORS VS. ADEMOLA MAJEKODUNMI & ANOR by way of a bank guarantee pending the determination of this appeal;
8. An ORDER directing the Appellants/Respondents to discharge the charge by way of a Deed of legal mortgage dated Will May, 2005 registered at the lands Registry office, Lagos as charge on Title No. MO. 0828 on 22th June, 2005 of CHRISTLIEB PLC parcel of land situate at No. 39 Creek Road, Apapa, Lagos measuring 3.151 acres and more particularly delineated and shown verged “Red” on Survey Plan No. L.E.D.B/SD/40 annexed to the Land Certificate No. MO. 0828 dated 12th August, 1958 pending the determination of this appeal;
9. AND FOR SUCH further or other orders as this Honourable Court may deem fit to make it the circumstances of this application.

The Applicant set out 13 grounds as basis for the reliefs sought. In support also is a 10 paragraph affidavit deposed to by David Udoh exhibiting several documents filed in the Federal High Court as exhibit A, A1, A2, B, B1, C, C1, D1, D2, E, E1, E2, E3,E4, F, G, H, J.

In response to the application the learned counsel to the Respondents filed a Notice of Preliminary Objection on 17 December, 2007 dated 17 December, 2007 wherein he challenged the competence of the 1 & 2 Applicants/Respondents’ Motion on Notice dated 4 September, 2007 and a fortiori the Jurisdiction of this Honourable Court to hear and entertain same. The Notice of Objection is premised on the following 7 grounds:

“1. This Appeal No. CA/L/322/07 is instituted at the instance of the Appellants/Applicants and not the 1st and 2nd Respondents.

2. The 1st and 2nd Respondents do not have a cross-appeal herein challenging the exparte and or interlocutory orders issued by the trial Federal High Court in Suit No. FHC/L/CS/1208/05 or indeed anything done in that suit pursuant to the orders aforesaid.
3. Not having challenged anything done in Suit No. FHC/L/CS/1208/05 or the orders issued therein or the execution of same, either by way of appeal or cross-appeal in this proceedings, it is not competent of the 1st and 2nd Respondents to seek to challenge same merely by instrumentality of the application dated 4th September 2007.
4. It is not open to a party who has not appealed against a decision to seek to set aside the decision or execution of orders made in that decision.
5. That 1st and 2nd Respondents have filed two separate appeals connected with decisions made in the Suit No. FHC/L/SC/1208/05 and which bear direct relationship with the reliefs endorsed on their application.
6. By abandoning these appeals which are still pending and seeking these reliefs vide the instrumentality of this appeal, the 1st and 2nd Respondents are engaged in forum shopping in abuse of the process of this Court.
7. The application dated 4th September 2007 made by the 1st and 2nd Respondents is ultra vires the 1st and 2nd Respondents, without foundation or basis, misconceived, adventurous and utterly unknown to our legal system”.

In support of the Notice is an 11 paragraph affidavit deposed to by Tola Oluwafemi, a legal practitioner; a 6 paragraph further and better affidavit filed on 16 April, 2008, a further and better affidavit filed on 21 May, 2008. Both deposed too by Rasheed Lawal.

The facts leading to the present applications are set out in the affidavit of the applicants as well as the further better affidavits of the Respondents. Briefly, the facts are as follows:

The 1st Appellant/Respondent CHRISTLIEB PLC applied and was given a trade finance facility for 400 million naira by the 3rd Appellant/Respondent – Santrust Securities Limited. The facilities were secured by a Deed of Legal Mortgage dated 10th May, 2005. Some disbursements were made to the 1st Appellant/Respondent. When the 1st Respondent did not respond to the Demand Notices to Pay, made by Santrust Securities Limited demanding the pay back of alleged outstanding sum of N219,738,051.64 (two hundred and nineteen million, seven hundred and thirty eight thousand and fifty one naira, sixty four kobo), the 3rd Appellant/Respondent acting on the Deed of the Legal Mortgage appointed the 2nd Appellant/Respondent as Receiver Manager of Christlieb Plc and proceeded to the Federal High Court. The Appellants/Respondents filed Suit No. FHC/L/CS/1208/05 on 22 May, 2005 by way of an Originating Summons seeking the several reliefs against the Defendants now Respondent Applicant in the lower court jointly and severally. He refer to the Originating Summons dated 22 November, 2005 exhibited as exhibit A.

The Appellants/Respondents also filed Motions for interim and interlocutory injunctions. The Appellant Respondent in his further affidavit averred that on the 12 of December, 2005, he obtained an interim order and on 29 March, 2006 an interlocutory order against the Respondent Applicants to take possession of the assets, goods, premises and property of CHRISTLIEB PLC. On 9 of May, 2006 the 2nd Appellant/Respondent took possession of assets and property of Christlieb Plc. The Respondents/Applicants aggrieved with the interim and interlocutory orders made in the lower court filed two Notices of Appeal against the interim and interlocutory orders. The two Notices of Appeal are in the application as Exhibits D1 and D2. Exhibit D1 is Notice of Appeal dated 20 December, 2005, D2 is the Notice of Appeal dated 29 March, 2006 filed same date, the Originating Summons on 22 January, 2007. The court below on the adjourned date for hearing of the Originating Summons, first heard the Notice of Objection filed by the Respondent Applicants, the Appellant Respondent did not react to the application. The court below on 6 March, 2007 after due consideration dismissed the suit of the Appellant/Respondent FHC/L/CS/1208/05 and adjourned the Applicant’s counter claim for hearing. Respondent Applicant in their counterclaim had claimed amongst other reliefs a declaration that the appointment of the Receiver was null and void and a setting aside of the interlocutory injunction granted on 29 May, 2006.

The Appellant Respondents dissatisfied with the dismissal of the Originating Summons filed a Notice of Appeal exhibited as Exhibit E1 dated 7 March, 2007. As a result of the dismissal of the Originating Summons, the 1st Respondent Applicants realizing that the lower court did not make any consequential order to the effect of vacating the injunctive orders went back to the Federal High Court to make an order to allow the Applicant repossess Christlieb Plc assets and property in view of the dismissal order.

The Appellant Respondent filed a Motion dated 8 March, 2007 in the court below praying for Stay of Execution, restraining order and Stay of Proceedings against the order of 6 March, 2007. The trial court in its considered ruling refused to stay execution of any decision of that court but granted stay of proceedings pending appeal. The trial court also refused to grant leave to the Respondents/Applicants to issue Writ of Execution and allow Applicants to take possession of CHRISTLIEB PLC and ruled he was funtus officio as stay of proceedings had been granted in the same Suit FHC/L/CS/1208/05 and that they were appeals pending. The Respondent Applicants then filed the present application in this court.

The Learned Senior Advocate R. Tarfa arguing the application orally on the 28 May, 2008 formulated six issues for determination. Chief A. Aribisala (SAN) in response to the application had filed a Notice of Preliminary Objection; he addressed the court on the competence of the application before the court. He did not formulate issues for determination.

I will first consider the Notice of Preliminary Objection before the determination of the Motion on Notice.

Chief Aribisala’s (SAN) contention is that this court cannot grant relief 1 to 8 because the matter is a subject of Receivership. He submits the Federal High Court did not vest any asset on the Receiver as the power of the Receiver Manager was vested on the Receiver by the Deed of Appointment made outside the court. He contends that once a receiver is appointed, it is the appointee that can discharge the receivership and not the court. He cited the following cases: WEMA Bank v. Onafowoke & Other (2005) 6 NWLR (Pt. 921) pg. 410, rato 2 & 3; UNIBEX Nigeria Ltd. v. C.E.C.L. (2003) 6 NWLR (Pt. 816) pg. 402. It is his further submission that the issue the Applicants are asking the court to determine has no relevance to the appeal.

He cited Balogun v. WEMA Bank Plc (2000) 4 NWLR (Pt. 654) pg. 652.

He referred to Order 4 and Rule 4 of the Rules of court and contends the present issue is not a novel one as the position was dealt with in the case of Uduma v. Government of Cross River State (1991) 4 NWLR (Pt. 188) pg. 773 rato 21.

He submits that since the order sought for is not connected to the pending Notice of Appeal filed, the only way the Applicants can succeed in making such application is when appeal has been entered. The Learned Senior Advocate further submits it is only then S15 and S16 of Court of Appeal Act can be raised.

He cited Eniekwu v. International Merchant Bank Ltd. (2006) 19 NWLR (Pt. 1013) pg. 146 rato 12, Okonkwo v. Mode Nig. Ltd. (2002) 14 NWLR (Pt. 728) pg. 588; Gombe v. P.W.U. Nig. Ltd. (1995) 6 NWLR (Pt. 402) pg. 402 rato 1 and S240 of the 1999 Constitution considered in FAMFA Oil Ltd. v. Act. Of the Federation (2003) 18 NWLR (Pt. 852) pg. 453 rato 9.

R. Tarfa (SAN) in reply submits that the case of UNIBEX v. WEMA Bank Supra cited is not applicable under Issue 1 he canvassed the powers of the court to grant the reliefs sought. He referred to Order 4 Rules 3, 4 & 5, the case of Iweka v. ACOA Nig. Ltd. (2000) 3 SC 21 at pg. 39 and S16 of the Court of Appeal Act. He also cited Ovenseri v. Osagiede (1998) 11 NWLR (Pt.572) pg.1 particularly at page 4. On the powers of the court to suspend orders of the lower court he cited SPDC v. Unu (1998) 9 NWLR (Pt. 567) at 672 particularly 684 to 685 paragraph E to F. Chief Aribisala (SAN) did not reply specifically to issues 2 – 5 formulated by R. Tarfa (SAN). However, 1 have distilled two issues from his submission in support of his contention that this court lacks the competence to grant the application. The two issues are as follows:

First is whether this court can discharge the Receiver appointed by Deed of Appointment outside the court having not vested the assets on him. Secondly, whether by virtue of S15 & S16 of the Court of Appeal Act this court can grant the reliefs sought as they are not connected in any way to the pending appeal. Issue one raised by the Learned Senior Counsel to the Respondent Applicant is similar except for the use of phrase. I will consider the two issues together since they are related.

Having carefully gone through the affidavit in support of the application, the affidavits and further further affidavits in support of the Notice of the Objection inclusive of the documents exhibited, one fact indisputable is that the court below dismissed the Originating Summons filed by the Appellant/Respondent wherein they sought 6 reliefs which includes Declaratory, Injunctive Reliefs, Restraining Order against the present Applicant from entering into or remaining in possession of any assets and property of the 1st Appellant/Respondent. It is equally obvious from the exhibited documents that at the time of dismissal the Learned Trial Judge had made an interlocutory injunctive order against the applicant; ordering the Appellant Respondents to take possession of assets and properties of Christlieb Plc on 9 of May, 2006. The Learned Trial Judge had also made an order staying proceedings in the lower court. Thus the crux of these application by Notice is whether the Applicant who is dissatisfied with the decision of the court below wherein the Learned Trial Judge refused to make consequential order discharging the interlocutory injunctive orders can get redress in this court in the absence of a specific valid appeal in respect of the injunctions order in FHC/L/CS/1208/2005.

The interlocutory order of the court below on 29 March, 2006 passed the possession of parcel of land together with the building at No. 39 Creek Road, Apapa, Lagos on to the 2nd Appellant Respondent. Exhibit D is the Deed of Appointment of the Receiver Manager dated 7 of November, 2005, Exhibit C1 is the enrolled Order of the interlocutory injunction made by the court below on 29 March, 2006 and for purpose of emphasis I reproduce:

“a. That the Defendants and/or their servants, agents and/or officers, shareholders, employee and Creditors of the 1st Plaintiff company are hereby ordered to deliver up to the 2nd Plaintiffs possession of all that piece or parcel of land (together with all the building erected therein) at No. 39 Creek Road, Apapa, Lagos, Lagos State of Nigeria covered by Land Certificate No. MO. 0828 dated 12th day of August 1958 at the Land Registry in the office at Lagos.

b. That the Defendants their servants agents and/or the officers shareholders, employees, creditors of the 1st Plaintiff company are hereby restrained from interfering with obstructing or disturbing 2nd Plaintiff from entering into or remaining in possession of all that piece or parcel of land (together with all the buildings erected therein) at No. 39, Creek Road, Apapa, Lagos, Lagos State of Nigeria covered by Land Certificate No. MO. 0828 dated 12th day of August 1958 at the Lagos Registry in the office at Lagos in the exercise of his power as the Receiver Manager of the 1st Plaintiff Company.

c. That the Inspector General of Police, the Assistant Inspector General of police Zone II, the Commissioner of Police, Lagos State Command and their deputies, assistants and all other officers under their command/control are hereby directed to assist the 2nd Plaintiff in securing all that piece or parcel of land (together with all the buildings erected therein) at No. 39, Creek Road, Apapa, Lagos, Lagos State of Nigeria covered by Land Certificate No. MO. 0828 dated 12th day of August 1958 at the Land Registry in the office at Lagos under Receivership”.

The above Order of the court had the effect of a Judicial stamp on the Deed of Appointment as it relates to the powers contained therein. However, the Order was not tied to any time frame. The Order for delivery of possession of all the piece or parcel of land at No. 39 Creek Road, Apapa, Lagos does not mean that the goods and property of the 1st Appellant/Respondent is vested on the Receiver Manager. The Receiver Manager appointed by a debenture is an agent of the beneficiary of the Deed for the purposes of dealing with assets in the Receivership. See S390 of the Company and Allied Matter Act C20 Laws of the Federation 2004. The company does not lose its legal personality nor its title to the goods in the receivership. See Newhart Development v. Co-operative Commercial Bank (1978) 2 All E.R. 901. The Receiver Manager has no title to the assets in the receivership which still vests in the company.

The court below on application made an order that possession of the parcel of land in issue be delivered to the 2nd Appellant Respondent and a restraining order, the same court can discharge the order which is founded on debenture.

Chief Aribisala SAN in his Ground of Objection raised the issue of no cross appeal by the applicant. A cross-appeal is an independent appeal, having a life of its own in the appellate process. See Unity Bank Plc v. Bovari (2008) All FWLR (pt.416) SC 1825.

A cross-appeal is filed when a Respondent is dissatisfied with the judgment appealed against and seeks a reversal of the judgment or a finding therein then he files his own Notice of Appeal. The Respondent Applicant first relief on the Motion paper falls within the ambit of a consequential order vacating the interlocutory injunction in view of the dismissal order. Ideally Applicant should have expressed his dissatisfaction of the omission to vacate the order by way of cross-appeal. The Notices of Appeal he filed against the injunctions were obviously abandoned. There is no evidence any steps were taken after the filing. However, the Respondent Applicant having not cross appealed but have sought the exercise of this court’s power to make restraining and injunctive order pending the determination of the appeal filed by the Appellant Respondent. The inherent power of the court is no doubt wide but within an ambit. What a court is empowered to do and the failure of a court to do that which an aggrieved party complains about will depend on this court’s procedural rules and law.

The powers of the court under its inherent Jurisdiction are complimentary to its powers under the rules of the court. The inherent Jurisdiction of the court is a most valuable adjunct to the powers conferred on the court by the rules. See Yonwuren v. Modern Signs (Nig.) Ltd. (1985) CLR 2(a) SC.

The objection of the learned SAN Chief Aribisala in respect of the competency of this motion calls for the construction of S15 of the Court of Appeal Act 2004 and Order 4 Rule 4 of the Court of Appeal Rules 2007. I reproduce same for purposes of emphasis.

S15 of the Act stipulates:

“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may rehear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in the case of an appeal from the court below, in that court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction”.

Order 4 rule 4 provides:

“4. The powers of the Court under the foregoing provisions of this Rule may be exercised notwithstanding that no notice of appeal or respondent’s notice has been given in respect of any particular part of the decision of the court below, or by any particular party to the proceedings in that court, or that any ground for allowing the appeal or for affirming or varying the decision of that court is not specified in such a notice; and the Court may make any order, on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties”.

The cardinal principle and rule of statutory interpretation is to ascertain the true intention of the legislature thus where the words used in an enactment are clear and unambiguous, they should be accorded their ordinary and grammatical meanings without any colouration. See Ugwu v. Ararume (2007) 12 NWLR (Pt.1048) 365, Agbaje v. Fashola (2008) 6 NWLR (Pt. 1086) CA 90. The duty of the court in interpreting an unambiguous statutory provision is to declare the actual words used in the provision. The provision in 516 of the Court of Appeal Act 1976 is in par-material with S.15 of the current Court of Appeal Act 2004. S.16 has been construed by the Apex Court and this court in a catalogue of cases. I will refer to just a few of them. In the case of Enekwe v. IMB (Nig.) Ltd. (2006) 19 NWLR (Pt. 1013) pg. 146 ratio 12. The Supreme Court interpreting the provisions of516 of the Court of Appeal Act and Order 3 Rule 23 of the Court of Appeal Rules 2002 held:

“The provisions of section 16 of the Court of Appeal Act and Order 3 rule 23 of the Court of Appeal Rules which allow the Court of Appeal to act as if it is the trial court in certain situations are not invoked merely for the asking. Before the Court of Appeal can invoke the power, the party must how that there is a real question in controversy for the court to determine and that it is a good case for a rehearing. Section 16 of the Court of Appeal Act is not in the statute to instigate competition in jurisdiction between the Court of Appeal and the High Court. The section lacks the legal capacity to wipe out the original jurisdiction of the High Court. The section is there to assist in the speedy hearing of appeals. It is not a substitute for trial procedure in the High Court. In the instant case, no useful purpose would have been served by invoking the provision as the Court of Appeal”.

In Balogun v. Wema Bank Plc Supra, Oguntade JCA (as he then was) held:

“Ours is a Court of Appeal. Our jurisdiction is appellate. That jurisdiction can only be activated by a Notice of Appeal properly and validly filed. And the reliefs we can grant upon an appeal are circumscribed by the issues raised in the Grounds of Appeal and the reliefs sought by the appellant. In addition, we can make consequential orders which might not have been asked for by any of the parties. By the same token, we cannot make orders which are unrelated to the issues agitated in the Notice of Appeal of the appellant”.

Still on the scope of Sl6 of the Act, the court in Ndoma Egbe v. Government of Cross River State Supra cited by Chief Aribisala had this to say:

“The law is trite that a court of law should always confine itself to the jurisdiction conferred on it by the enabling statute. In the context of the Court of Appeal, both the Constitution and the Court of Appeal Act confer appellate jurisdiction on the Court of Appeal. It cannot exercise jurisdiction of the trial court and section 16 of the Court of Appeal Act does not confer such jurisdiction on the court”.

The Supreme Court in Ovensori v. Osagiede (1998) considered S16 of the Court of Appeal Act along with Order 3 rule 23 of the Court of Appeal Rules 2002. Iguh JSC held:

“There can therefore be no doubt that the Court of Appeal, upon a consideration of the totality of all the foregoing principles of law and rules of court, had ample jurisdiction to vary the order of dismissal made by the trial court to that of the striking out of the suit, notwithstanding the fact that the respondents had not appealed against the same. The case was clearly not properly before the court and it would be idle to dismiss such an action which, to all intents and purposes, was incompetent and therefore only liable to be struck out. Issue I is therefore resolved against the appellants”.

The Supreme Court had earlier in the case of Gombe v. PW (Nig.) Ltd. (1990) 5 NWLR (Pt. 151) 473 held:

“An order sought in the Court of Appeal in an interlocutory application should have some nexus with, be related to, not go beyond the ambit of, the appeal actually pending before that Court upon which the interlocutory application is predicted. In this case, the orders sought in the Court of Appeal being quite extensive and beyond the ambit of the interlocutory appeal pending before it, the Court of Appeal was incompetent to entertain them not being a Court of first instance and since none of the reliefs claimed in the application is concerned with the preservation of the res in issue in the appeal for the purpose of preventing the appeal, if successful, from being nugatory”.

See also Julius Berger (Nig.) Plc v. Nwagwu (2006) 12 NWLR (pt. 995) CA 518 where this court held:

“By virtue of the provision of S16 of the Court of Appeal Act 1976, the Court of Appeal can properly deal with an issue even though the trial court made no pronouncement on it. This is so because the Court of Appeal has full jurisdiction over the whole proceeding before it, as if the proceeding had been instituted in the Court of Appeal as a court of first instance. That is to say the Court of Appeal can deal with a case the same way the trial court would have done”.

Relying on the interpretation of S16 in the aforementioned cases which provision is in par-material with S15 of the Court of Appeal Act 2004, the powers of this court under that section are only exercisable in respect of appeals before the Court of Appeal and applications made under or in connection with the appeal but once the reliefs or orders applied for in this court are unrelated with a pending appeal or issues arising therefrom, these powers may not be lawfully exercised in respect of such application. Furthermore, any order sought to be made in this court must be one which the court of trial from which the appeal arose could make.

In effect, Section 15 vest this court with the power to make any order which the lower court could have made and can treat the matter as if the suit was filed in the first instance before the court. See the case of Mrs. Victoria Okotie-Eboh v. Adolo Okotie-Eboh and Others (1986) 1 SC 479.

The constituent powers under this provision include the power of this court to make an interim order or grant any injunction which the court below is authorized to make or grant.

In CBN v. Ahmed (2001) 5 SC (Pt. 11) pg. 146, the Supreme Court granted an injunction pending appeal even though the Notice of Appeal had not Originating Summons are not strange to the present relief, they are related and connected.

The circumstance presented in the affidavits which have not been contradicted and the documents exhibited which confirm the order of stay of proceedings was made in the court below is a special situation to invoke the powers of this court to consider the application under S15 of the Court of Appeal Act and Order 4 Rule 4 of the rules. The fact that the Respondent Applicant did not prosecute the two Notices of Appeal obviously abandoned cannot limit that power. There is an appeal pending filed by the Appellant Respondent, the relief sought in this motion is tied to the determination of the appeal. The Applicants are respondents in the appeal.

The courts power to intervene in special circumstances in the light of procedural rules of court cannot be precluded because there is no specific appeal on the decision of the court below refusing them to vacate or suspend the order. This court must always take charge of proceedings pending in the court once the Jurisdiction of the court has been invoked in related and connected causes otherwise it would be a reproach to the administration of justice if the court were to remain helpless in a situation where great hardship may be caused by an omission of the court below.

My firm view is that the rationale of S15 of the Act and Order 4 Rules 4 of the rules of court is to fin in omissions that will cause hardship and substantial injustice. The present reliefs sought on the motion paper are not unrelated to the relief in the Originating Summons that was dismissed and the Grounds of Appeal in respect of same.

I hold that this court is competent to consider the merits of this application notwithstanding that an appeal has not been entered in respect of the interim and interlocutory injunction made by the court below though Notice of Appeal filed was abandoned. See Order 4 rule 4 of the rules of this court. The Notice of Preliminary Objection lacks merit and is accordingly overruled. I will now proceed to consider the reliefs sought serially:

Relief 1: Applicant averred that the trial court on 6 March, 2007 dismissed the suit filed by the Appellant. At the time of dismissal the injunctive orders were not vacated. This raises the question – what is the legal status of the interlocutory injunction after dismissal of the suit.

In A.G. Fed. V. Fagunwar Chikoyi (2006) 18 NWLR (pt. 1010) CA 51 court held:

“When an interim order of injunction is made pending the determination of all applications before the court once all the applications before the court are determined or if an interlocutory order of injunction is made the interim order of injunction would cease, lapse or end on the date the applications are determined or subsequent order is made”.

An order of injunction is not made by a court to last forever or ad infinitum. It must last for a short period and an interim order will lapse once the party against whom it was made is served with the substantive application for interlocutory order or Motion on Notice. See A.G. Fed v. Fafunwa V. Onikoyi supra; Leedo Presidential Motel Ltd. v. Bank of the North Ltd. (1998) 10 NWLR (Pt. 696) 364; Dogban v. Diwhre (2005) 16 NWLR (Pt. 951) 274.

In the instance case, the interim order referred to by the applicant as made by the lower court though not exhibited sized to exist when the interlocutory injunction was granted as both cannot exist at the same time. It automatically lapsed. See AIC v. NNPC (2005) 11 NWLR (Pt. 937) 563.

The object of interlocutory injunction is to protect the Applicant against injury which he would not be adequately compensated on damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The interlocutory order made by the court below on 29 March, 2006 was made under the shield of a pending suit. The suit having been dismissed, it cannot continue to stand on no leg. It goes too at the stage the suit was dismissed. Perhaps an order of strike out would have been different but the lower court dismissed the suit, the foundation on which the injunctive order was made. Consequently reliefs 1 & 2 have merit. The Applicant must have a legal remedy in such circumstance.

All the court below needed to do was to make a consequential order after dismissal. The Learned Trial Judge in his ruling on 6 March, 2007 exhibited as Exhibit E on page 14 held:

“Finally, from the observations made by me above, the court finds that the Originating Summons filed by the Plaintiff has not been moved. It will be a mockery of the law if parties should be allowed to abandon the substantive case, after obtaining an interlocutory order that satisfies their needs. An interlocutory order cannot stand on its own, where there is a substantive case, since the Plaintiff has stated and is not willing to proceed with the Originating Summons, it is accordingly dismissed since he has benefited from it”.

The intention of the court below is obvious but no order was made.

By relief 1 in this application, the Applicant has called this court to invoke its power under S15 of the Act. The issue is straight forward, the court below having failed to make the incidental order after dismissal of suit and stayed proceedings, the circumstance warrants an intervention of this court to vacate the injunction pending the determination of the appeal by the Appellant Respondent.

Relief 2 is for an order allowing Respondents to take possession of the assets. This relief is incidental to relief one. Having vacated the interlocutory injunction, the parties should revert back to their status before the injunction was made.

Relief 3, Applicant seeks an Order directing the Chief Registrar/Deputy Sheriff to assist the Respondent Applicant in securing the possession of the assets. I really do not appreciate why the Applicant seeks assistance of the Chief Registrar when the proceedings in the Federal High Court have been stayed. This prayer is most unnecessary and not justified.

By virtue of S4 of the Police Act, Cap 359, Laws of the Federation, 1990, the duties of the Police include amongst others the prevention and detection of crime, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged.

S4 of the Police Act stipulates:

“By virtue of section 2 of the Police Order Act, any police officer of the rank of Inspector or above may stop any assembly, meeting or procession for which no licence has been issued or which violates any conditions of the licence issued under section I of this Act, and may order any such assembly, meeting or procession which has been prohibited or which violates any such conditions as aforesaid to disperse immediately.

In the instant case, the appellants did not obtain any licence for the assembly, therefore the police were right to disperse them”.

The Police are under a statutory duty to protect property and to enforce laws. When it comes to execution of court’s orders, the Sheriff of the court has a role to play. However, in practice to ensure the observance of law and order, the involvement of the police becomes imperative. The Police Force are not necessary parties to the determination of the issues before this court but by virtue of their statutory powers this court can direct them to exercise same when the circumstance warrants their intervention. The present situation calls for such directive on the Police to ensure maintenance of order and protection of property during compliance to the Order of the court.

Consequently, it is my firm view that there is merit in relief 4, and part of relief 5.

Under prayer 6, Appellant seeks the deposition of the documents with the Chief Registrar of this court and allowing them to pay N219,738,051,64 to the court pending determination of the appeal. I cannot envisage any injustice this will cause to the Appellant Respondent if the order is made nor have the Appellant Respondent averred to facts they will suffer injustice or prejudice. Furthermore, once the bank guarantee is deposited in the name of the Deputy Chief Registrar, the Respondent will unlikely suffer any hardship. What is critical is to pay the money in dispute, that is the crux of the litigation. Once the alleged money owned is secured in the court by deposition, the main “res” is preserved till the determination of the appeal. The charge on the property for non payment in the first instance will have to stay until appeal determined. This court in the interest of substantial justice can place the charge by way of Deed of Legal Mortgage on hold pending the determination of the appeal.

I am of the firm view that there is merit in this application except for relief 3, this court must ensure justice is done and reduce avoidable circumstances.

Consequently I order as follows:

1. I vacate the interlocutory orders of the Federal High Court in Suit FHC/L/CS/1208/05 – CHRISTLIEB PLC & Others v. ADEMOLA MAJEKODUNMI & Anor made on 29 March, 2006 pending the determination of the appeal dated and filed 7 March, 2007 by the Appellant/Respondent.
2. I direct the Respondents/Applicants to take possession of the assets, premises, good and property of CHRISTLIEB PLC situate at No. 39 Creek Road, Apapa, Lagos including the fixtures and buildings therein pending the determination of the appeal on the decision of the Federal High Court dismissing Suit FHC/L/CS/1208/05.
3. I direct the Inspector-General of Police and Deputy Inspector General of Police Zone II, the Commissioner of Police, Lagos State Command and the Deputies, Assistants and all other officers under their command/control to assist the Respondents/Applicants in securing the possession of the assets, premises, goods and property of Christlieb Plc situate at No. 39, Creek Road, Apapa, Lagos, which the Appellants Respondents had taken possession of since 9th May 2006.
4. I direct the inventory of the assets, goods and property of Christlieb Plc situate at No. 39 Creek Road, Apapa, Lagos be taken by the Inspector General of Police.
5. The Appellants Respondents is directed to deposit the title documents of the property at No. 39 Creek Road, Apapa, Lagos belonging to Christlieb Plc in Appellant Respondent’s possession with the Chief Registrar of this Honourable Court pending the determination of this Appeal.
6. I direct the Respondents Applicants to deposit the alleged sum of N219,738,051.64 (two hundred and nineteen million, seven hundred and thirty eight thousand, fifty one naira, sixty four kobo) with this court in the name of the Deputy Chief Registrar who is to deposit same in an interest yielding account pending the determination of the appeal.
7. I direct the Appellants Respondent to discharge the charge by way of Deed of Legal Mortgage dated 10th May, 2005 registered at the Lands Registry office, Lagos as charge on Title No. MO.0828 on 2200 June, 2005 of Christlieb Plc parcel of land situate at No. 39 Creek Road, Apapa, Lagos measuring 3.151 acres and more particularly delineated and shown verged “Red” on Survey Plan NO. L.E.D.B./SD/40 annexed to the Land Certificate No. MO. 0828 dated 12th August, 1958 pending the determination of this appeal.

I order cost in the sum of N20,000 in favour of the Respondent Applicant.

---

Other Citations: (2008)LCN/2843(CA)