Engr. Solomon Omorodion Uwaifo & ORS v. Governor of Lagos State & ORS (2007)
LawGlobal-Hub Lead Judgment Report
ADZIRA GANA MSHELIA J.C.A
This is an appeal against the Ruling of the Lagos State High Court delivered by Phillips J. on 17th October, 2003.
The Plaintiff now appellants instituted an action against the defendants now respondents at the court below by filing simultaneously, their writ of summon, statement of claim, a motion for interlocutory injunction supported with an affidavit of urgency, on 8th July, 2002. The motion was entertained by Adebiyi J. on 12th August, 2002 and delivered a considered ruling in favour of the prayer of the appellants, that is to say granting the prayer for interlocutory injunction on 14th August, 2002. The third defendant now third Respondent filed an appeal to this court against the ruling, on 19th August, 2002. At the same time, third Respondent also filed an application praying for a stay of execution or suspension of the ruling pending the determination of his appeal. The motion was assigned to Phillips J. The Appellants took out contempt proceedings against the third respondent. The 1st, 2nd, 4th and 5th defendants/respondents filed an application praying the court to set aside or discharge the order of interlocutory injunction granted against the defendants by the court below on the 16th day of August, 2002 on grounds of suppression and misrepresentation of material facts. The learned trial Judge heard the application and in a considered ruling delivered on 17th October, 2003 vacated the order of interlocutory Injunction granted by Adebiyi J. See pages 197 to 203 of the record. The learned trial Judge had this to say:-
“I accordingly grant the application of the 1st, 2nd, 4th and 5th Defendants/Applicants and the order of interlocutory injunction made by this court on 16/8/02 is hereby vacated. The Defendants are hereby ordered to file and serve their respective statement of Defence within 14 days from today, the Plaintiffs shall file their replies thereto within 7 days of service. I make no order as to costs and will now hear counsel as to a suitable date for mention.”
Dissatisfied with the said ruling appellants lodged an appeal to this court by filing their notice and grounds of appeal on 20/10/03. The Notice of Appeal contained only one ground of appeal.
In line with the rules of this court at the time of filing the appeal parties exchanged briefs of argument.
When the appeal came up for hearing both appellants and respondents counsel adopted their respective briefs of argument. No brief of argument was filed on behalf of 3rd Respondent though one Miss Funmi Adeleye esq announced appearance for the 3rd respondent.
The appellants in their brief dated and filed on 12/7/04 formulated one issue from the lone ground of appeal. The main issue for determination in this appeal is whether Phillips, J. was competent to set aside the order of a Judge of co-ordinate jurisdiction.
The 1st, 2nd, 4th and 5th respondents in their brief filed on 21/5/07 which same was deemed filed and served also formulated one issue for determination in this appeal. The issue is not different from that formulated by appellants. The issue is whether the Honourable Justice Phillips was competent to set aside the order of a court of Co-ordinate jurisdiction.
Learned counsel for the appellants Yonwuren esq made a lengthy submission on the sole issue formulated for determination in this appeal. I would briefly summarize same. Learned counsel contended that the new evidence used by the learned trial Judge as ground for setting aside the ruling of Adebiyi J, amounted to sitting on appeal over a decision of a judge of co-ordinate jurisdiction and that is not our law. The third respondent accepted that the court below through the order of Adebiyi J. was functus officio as regards the application for the interlocutory injunction and lodged an appeal to this court on 19th September, 2002 and followed same with an application praying the court below to stay the order of Adebiyi J. pending the determination of his appeal.
It is submitted further that the learned trial Judge was being asked to review the earlier decision of her learned brother of the same jurisdiction. Reliance was placed on the case of Ejakpomehwe Akoprue & anor Vs Isieheri Okei & 2 Ors (1993) 12 SC 137.
It was also contended that the application which Phillips J. considered was an abuse of process of the court. He relied on the case of Ashley Agwasim & Anor V. David Ojichie & anor (2004) 4 SC (pt1). 160. In that case a dissatisfied defendant had appealed the decision of a lower court (the Court of Appeal) to arrest the relief contained in his appeal. The Supreme Court was emphatic that “clearly that was an abuse of judicial process. It is trite that the abuse of judicial process is the improper use of the judicial process by a party in litigation. It may occur in various ways …”. Learned counsel contended that the proper course available to the learned trial Judge was to have struck out the state respondents applications to set aside the order of Adebiyi J. It was argued further that if this submission is upheld, then the submission by 1st, 2nd, 4th and 5th respondents that the court below could not restrain an already completed act would not have availed them irrespective of the authority of Ayorinde Vs A.G. Oyo State (1996) 3 NWLR (Pt 434). See also Governor of Lagos State V Ojukwu (1986) 1 NWLR (Pt 18)621.
Learned counsel concluded his submission by urging the court to hold that Phillips J. was not competent to exercise appellate jurisdiction over a court of Coordinate jurisdiction by setting aside the order of Adebiyi J., consequently, the appeal be allowed.
In reply Lawal Pedro, the Director Civil Litigation Ministry of Justice Lagos State conceded that as a general rule once a court delivered a ruling or judgment on a matter it becomes functus officio, and the court or any court of Co-ordinate jurisdiction lacks jurisdiction to set aside or review the earlier decision. However, there are exceptions to this general rule. One of such exception is when the decision is regarded as a nullity or that the court had acted without jurisdiction, the same court or a court of coordinate jurisdiction under such circumstances has an inherent power and jurisdiction to set aside the decision. See the following cases: Sanusi V. Ayoola (1992) 9 NWLR (Pt 265) 275; Okafor Vs A.G. Anambra (1991) 6 NWLR (Pt 200) 609 and Ibwa V. Kenedy Trans Nig. Ltd (1993) 7 NWLR (Pt 304) 238 at 250 – 251. Learned counsel contended that even the Supreme Court has held that it has inherent powers to set aside its own judgment in any of the following circumstances:
(a) when the judgment is obtained by fraud or deceit
(b) when the judgment is a nullity
(c) when it is obvious that the court was misled into giving judgment.
(d) where the judgment was given in the absence of jurisdiction or
(e) where the procedure was such as or to deprive the decision or judgment of the character of a legitimate
adjudication. See Igwe Vs Kalu (2002) 14 NWLR (Pt 187) 435 at 440 – 441, and N.S Engineering Co.Ltd Vs Ezendinka (2002) NWLR (Pt 748)469 at 93.
In a further argument learned counsel submitted that the exception to the general rule is even more permissible in cases of interim or interlocutory orders of injunction as we have in this present appeal. In Lagos State the power of a High Court to set aside an order of injunction earlier made by the court is in exercise of its inherent power and jurisdiction vested in Section 6 (6) of the 1999 Constitution and this would not amount to sitting on appeal over its earlier decision. He relied on the case of Nwakonobi V Udeorah (1999)9 NWLR (Pt 23) 88 and Onwuka V Maduka (2002) 18 NWLR (Pt 799) 586 at 600 – 604
It is submitted that the 1st, 2nd, 4th and 5th Defendants/Respondents relied on the ground of suppression and misrepresentation of material facts which the court below accepted. There is no appeal against the findings or decision of the court below on this issue. To that extent the decision remained binding on the appellants and they cannot be heard to complain on the issue before this court.
It is further submitted that there is incontrovertible evidence that only the 3rd defendant has title to the land, The court below at page 201 of the Record also found on the evidence before it, that, the 3rd defendant has already completed the building on the land in dispute and was already living in it when the order of injunction was made by Adebiyi J., It is also submitted that going through the processes filed in the court below and the proceedings before it, at no time did the Plaintiffs claimed or alleged that they were denied access to their respective properties, These are facts sufficient to deny the Plaintiff the grant of injunction but what the Plaintiffs/appellants suppressed and which the 3rd defendant’s former counsel failed to bring to the attention of the vacation Judge.
On the subsidiary issues raised and argued in appellant’s brief, learned counsel submitted that the issues do not flow from the only ground of appeal filed by the appellants. He referred to notice of appeal at pages 201 – 209 of the record. Learned counsel urged the court to discountenance same. It is settled principle of law that an appellant is not permitted to introduce in his brief issues not covered by his ground of appeal. See Ibika V. Evisi (1988) I NWLR (Pt 78) 533 at 579 and Chiyke V. F.H.A. (1998) 10 NWLR (Pt 624) 574 at 576.
As regards the argument that there was a pending appeal filed by the 3rd defendant/respondent, learned counsel submitted that the appeal has not been entered in the Court of Appeal as such the application to set aside the order in the High Court will not amount to abuse of court process and High Court is therefore competent to entertain the application as it did. See Ngige V Achukwu (2004) 8 NWLR (Pt 875)356 at 362. Learned counsel urged the court to dismiss the appeal with cost and order the case be given accelerated hearing to determine once and for all who has right of possession of the land in dispute.
The appeal is essentially on the competence of the trial judge to discharge an order made by another Judge with Co-ordinate jurisdiction.
The principle of Law is that once a court makes an order it becomes functus officio. As a general rule a court of Coordinate Jurisdiction has no jurisdiction to set aside the judgment of another court of similar jurisdiction.
But where an order is a nullity such an order would be set aside by another court of similar jurisdiction. See WITT & Busch Ltd V. DPS Plc (2007) All FWLR (Pt 382) 1816 at 1842 paras G-H.
The question now is, was it proper for the learned trial Judge to have vacated the order of interlocutory injunction granted by another Judge? In granting the application the learned trial Judge relied heavily on the facts averred in paragraph 6 of the affidavit in support filed by the 1st, 2nd, 4th and 5th respondents on 14/10/02 which seemed to have disclosed new facts. For ease of reference and emphasis I will reproduce same hereunder:-
“6. That I am informed by LawaI Pedro Head of Civil Litigation Department of the Ministry of Justice and I verily believe him that after the investigation of the petition the following facts emerged –
(a) That the C of O was issued by the government.
(b) That the 3rd Defendant was granted approval by the Town Planning Authority of the State to develop the land in dispute.
(c) That the use of the land in dispute was approved and zoned for was residential.
(d) That the 3rd Defendant has already completed his building on the land moved into possession with
his family who were already living there at the time the application was being moved and granted.
(e) That it was another counsel that represented the 3rd Defendant when the application for injunction
was granted.
(f) That for reasons best known to the Plaintiffs and the former counsel to the 3rd Defendant who knew that the 3rd Defendant and his family were already living in the house constructed on the land concealed and suppressed that fact from the court when the application was argued.
(g) That the Plaintiff also misrepresented material facts as to their title to the land, the one to which the land is approved or zoned for to obtain the order of injunction.”
The Plaintiffs/appellants in their counter-affidavit filed in opposition to this application according to the learned trial judge admitted paragraphs (a) and (c) above but denied paragraphs (d), (f) and (g). The learned trial Judge in the course of her ruling observed that the purpose for which the order for interlocutory injunction was made in the first place was to stop the 3rd defendant from destroying the res pending the determination of the suit. The learned trial Judge also observed that the photographs attached as Exhibits DO4 – DO4C to the affidavit in support of the 3rd defendant/respondents application for stay of execution dated 19/8/02 showed that 3rd defendant had already completed the house on the land in dispute and according to him was already living in it. Apart from these facts and circumstances the learned trial Judge was also guided by the decision of this court in Nwakonobi V. Udeorah (1991) 9 NWLR (Pt 213) 85. In that case Uwaifo, J.C.A quoted from Halsbury’s Law of England 4th Edition Vol. 24 para 1111 that the grounds for the dissolution of an injunction have been known to be:-
(a) If the Plaintiffs have not used their administrative powers that might have resolved the difficulty.
(b) If default has been made in giving security for costs.
(c) If the affidavit had not been filed when the injunction was moved.
(d) If it was granted on a suppression or misrepresentation of material facts.
(e) If it was irregularly granted.
(f) If the Plaintiff failed to attend to be cross-examined.
(g) If there had been a delay in complying with an undertaking to amend the writ by adding a party a plaintiff.
Apparently, the 1st, 2nd, 4th and 5th respondents based their application on paragraph (d) i.e. that the earlier order was granted on a suppression or misrepresentation of facts.
By the decision of this court in Nwakonobi Vs Udeorah supra jurisdiction to discharge an order of interlocutory injunction is vested in the court. Therefore a Judge who succeeded another Judge has power to discharge an order of injunction granted by the former Judge. This does not amount to sitting on appeal over the decision of the former Judge since he is merely exercising a power vested in the court.
It is clear that the purpose of the interlocutory injunction was to maintain the status quo pending the determination of the suit filed by the Plaintiffs/appellants. However, the affidavit evidence had disclosed that the act sought to be restrained have been completed. The 3rd defendant/Respondent had already completed the house on the land in dispute and is already living in it. It is trite that an injunctive relief cannot be granted in respect of a completed act. See A.G. Abia State V. A.G. Federation (2006) 16 NWLR (Pt 1005) page 265 at 387 paras F – H. As disclosed in the affidavit in support particularly paragraph 6 (d) this information was not brought to the attention of Adebiyi J. when he granted the interlocutory injunction set aside by the court below.
Learned counsel for the appellants made heavy weather about the Notice of Appeal filed by the 3rd Defendant/Respondent against the ruling of Adebiyi J. which was set aside by the trial Judge. I have observed from the record that 3rd Respondent did not participate in the application filed by the 1st, 2nd, 4th and 5th Respondents nor did he file any brief in this appeal. Agreed there is a Notice of Appeal dated 19/8/02 contained on page 125 of the record of appeal, filed by the 3rd Respondent. But there is nothing on record to show that the appeal has been entered before this court. Though one Miss Funmi Adeleye appeared in court on behalf of the 3rd defendant/respondent during the hearing of the appeal, she did not say anything about the pending appeal. Since the appeal is yet to be entered, the learned trial judge had jurisdiction to entertain all interlocutory applications filed in connection with the case. This is in line with Order I Rule 21 (1) and (2) of the Court of Appeal Rules 2002 now Order 4 Rule 10 and 11 of the new Court of Appeal Rules 2007. Order 4 Rule 10 and 11 provides:-
“10. An appeal shall be deemed to have been entered in the court when the record of proceedings in court below has been received in the Registry of the court.
- After an appeal has been entered and until it has been finally disposed of, the court shall be seized of the whole of the proceedings between the parties thereto, and except as may be otherwise provided in these Rule, every application therein shall be made to the court and not to the court below, but any application may be filed in the court below for transmission to the court.”
In the case of Shittu Ogunremi V Dada (1962) I All NLR 663, the Federal Supreme Court held that applications can be brought in the Lower court before an appeal is “entered” in the Federal Supreme Court and that an appeal is “entered” when the record of appeal is received in that court and entered in the cause list. Similarly, in Abolade Coker Vs Lamidi Adeyemo & Another 1 All N.L.R. 120. It was held that a High Court may under its inherent jurisdiction entertain and adjudicate on an application for stay of execution at any time after the notice of appeal is received in the High Court Registry and before the appeal is “entered” in the cause list of the Supreme Court.
Having regard to the facts and circumstances of this case I am firmly of the view that the learned trial Judge can exercise the power to set aside the interlocutory injunction as she did, as long as the appeal has not been entered in the Court of Appeal. I am encouraged in this view by the case of Marshall Olatunde Akinrele V. J. M. Bassey (1979) 6 C. A 52 at 57 wherein the Federal Court of Appeal per Ogunkeye, JCA had this to say:-
“It was submitted on behalf of the appellant that the trial Judge cannot set aside his own judgment after an appeal has been filed but we were not referred to any authority on the point. We think the learned trial Judge can exercise the power to set aside his own judgment as he did, as long as the appeal has not been entered in the Court of Appeal.”
In short the application to set aside the interlocutory injunction was still within the competence of the learned trial Judge to deal with since the record of appeal has not been sent to the Court of Appeal. It is to be noted that the matter before the court below was not the appeal, but an application to set aside the interlocutory injunction earlier granted by another Judge. Also it has to be borne in mind that the case has been assigned to the court below to hear and determine the matter.
On the subsidiary issues raised by appellants’ counsel, I entirely agree with the Director of Civil Litigation, Mr. Pedro that the issues do not flow from the only ground of appeal filed by the appellants. It is settled principle of law that appellant is not permitted to introduce in his brief issues not covered by his ground of appeal. See Chiyke V. F.H.A. (I998) 10 NWLR (Pt 624) 574 at 576.
I will without much ado discountenance same. It is also worthy of note that 1st, 2nd, 4th and 5th Respondents were sued as defendants in the substantive suit. They reserve the right to bring application to the court below like any other party in the case to protect their interest in the matter.
In the final analysis, I would resolve the sole issue against the appellants. The Sole issue and the only ground of appeal are hereby dismissed.
In the result, I hold that the appeal lacks merit. It is hereby dismissed.
Parties to bear own costs. It is ordered that the substantive matter be given accelerated hearing bearing in mind the age of the case.
Other Citations: (2007)LCN/2535(CA)
