Inspector-general of Police & Ors V. Dr. Ayodele Peter Fayose (Governor of Ekiti State) & Ors (2007)
LawGlobal-Hub Lead Judgment Report
GUMEL, J.C.A.
The appellants, applicants brought a motion on notice pursuant to Order 3 rule 3(1) of the Court of Appeal Rules, 2002 and also under the inherent jurisdiction of this Court seeking for the following reliefs. They are:
- An order of this Honourable Court staying or suspending the order of interlocutory injunction restraining the appellants/applicants from arresting, detaining or prosecuting the 1st respondent pending the determination of the substantive suit granted by the Federal High Court Akure presided over by Honourable Justice Lambo Akanbi on the 23rd November, 2006 in suit No. FHC/AK/CS/85/2006 pending the determination of the applicants appeal; and
- For such further orders as this Honourable Court may deem fit to make in the circumstances of this case.
This application is dated and filed on 29th November, 2006 and is Supported by a 41 paragraph copious affidavit and a further affidavit of 19 paragraphs as well as a reply to the counter affidavit of the 1st respondent. Both of these affidavits were deposed to by one Oluwole Aladedoye, a legal practitioner in the law firm of Chief Afe Babalola and Co., counsel to the appellants/applicants. The ruling of the lower court of 23rd November, 2006 in corporating the interlocutory injunction being sought to be suspended is attached to the reply of the counter affidavit of 1st respondent.
The Economic and Financial Crimes Commission (EFCC) filed a similar application pursuant to Order 3 rule 3(1) of the Court of Appeal Rules, 2002. This application of the EFCC is supported by an 11 paragraph affidavit deposed to by one Olatunde Joseph and a 7 paragraph further affidavit deposed to by one Taiwo Salau, a legal practitioner in the Chambers of Rotimi Jacobs and Co., solicitor to the appellant/applicant. The ruling of the lower court of 23rd day of November, 2006 in Suit No. FHC/AK/CS/85/2006 is attached to the further affidavit as exhibit EF2 while there are 2 notices of appeal attached to the main affidavit of Olatunde Joseph. This application is dated and filed on 4th December, 2006.
Another application in similar terms to the earlier 2 herein was filed by the Ekiti State House of Assembly. It is dated and filed on 6th December, 2006. It is supported by an affidavit of 20 paragraphs deposed to by one Oluwole Ojoko, a legal practitioner in the employment of the Ekiti State Ministry of Justice, Ado Ekiti.
The 1st respondent, Dr. Ayodele Peter Fayose, joined issues with each of the applications in 3 separate counter affidavits. The counter affidavit against the application of 29th November, 2006 is of 21 paragraphs and is dated and filed on 7th December, 2006. The counter affidavit against the motion of the EFCC is of 12 paragraphs and also dated and filed on 7th December, 2006, while the counter affidavit against the application of the Ekiti State House of Assembly is of 9 paragraphs and dated and filed on 27th December, 2006. All the 3 separate counter affidavits were deposed to by one Kenneth O. Omoruan, a legal practitioner in the law firm of Alex A. Izinyon and Co., counsel retained by the 1st respondent.
In another twist, the Inspector General of Police and the Attorney-General of the Federation filed one more application dated 5th December, 2006 and filed on 6th December, 2006. This application is pursuant to Order 3 rule 3(1) and (3) of the Court of Appeal Rules, 2002 and the inherent jurisdiction of this Court. It seeks for the following main relief. It is:
“An order of this Honourable Court staying further proceedings in suit No. FHC/AK/CS/85/2006 at the Federal High Court, Akure presided over by Honourable Justice Lambo Akanbi pending the determination of the appeals filed by the appellants/applicants herein.”
This application is supported by a 58 paragraph affidavit with so many copious annexures such as notices of appeal and rulings of the lower court etc. It was deposed to by the same Oluwole Aladedoye. The 1st respondent replied this motion with a 16 paragraph counter affidavit dated and filed on 11th December, 2006, also by the same Kenneth Omoruan. The 1st respondent also added what he chose to call a further and better affidavit in support of his counter affidavit of 11th December, 2006 and it is dated 25th January, 2007.
When these applications came before us for hearing, we sought the views of respective learned counsel on the possibility of consolidating them both with a view to achieving a neater handling of them and, of course, their expeditious determination. Respective learned counsel instantly appreciated and accepted our endeavour. The applications were consolidated and argued together. This ruling is therefore a composite one containing 2 decisions. The first decision would be on the applications to suspend or stay the execution of the interlocutory injunction ordered by the lower court against the Inspector General of Police, Attorney General of the Federation, the EFCC etc on 23rd November, 2006. The other decision would be on the application for stay of proceedings.
The grounds upon which the applicants seek an order of this court to suspend or stay the execution of the restraining order of injunction granted by the lower court are many. They are listed on the motion paper as follows:
- The injunctive order granted by the learned trial judge in this case was granted in defiance of a notice of appeal challenging the jurisdiction of the Federal High Court to entertain this suit as well as a motion for stay of further proceedings pending the determination of the appeal.
- The injunctive order was granted regardless of the fact that:
(a) The plaintiff had absconded his post as governor some days before his impeachment.
(b) The impeachment of the plaintiff has not been set aside.
(c) A state of emergency had been declared in Ekiti State and the National Assembly had approved it.
(d) The plaintiff had ceased to perform the function of a governor long before the ex-parte order of injunction was granted.
- The EFCC had indeed found that the plaintiff had diverted over N 13.5 Billion from Local Government and State Government fund.
- It is in the interest of justice to grant this application.”
Learned counsel to the 1st respondent, raised a preliminary objection to the application for an order to suspend the interlocutory injunction granted by the lower court. The notice is dated 5th December, 2006. The grounds for this objection are:
(1) The prayer sought is grossly misconceived and unknown to law, having regards to the notice of appeal against the interlocutory injunction; and
(2) The condition precedent to the initiation of the application has not been fulfilled.
I have considered this notice of objection and the arguments in support of same on the one hand and the motion on notice dated and filed on 29th November, 2006 and its Supporting processes on the other hand. I should say all at once that I did not see any merit in the preliminary objection. It is hereby overruled and struck out.
I have carefully considered all the arguments and submissions of respective learned counsel at the hearing of these applications. I have also considered all the decided cases and statutory provisions referred to in the submissions of counsel. I wish to re-state what I consider to be the yardstick in deciding an application of this nature. The grant of an order of interlocutory injunction is an exercise of the discretionary powers of the Court, and in exercising that power, the Court ought to consider the contending issues before it.
In deciding whether to grant an interlocutory injunction in any case, a court ought to take into consideration the balance of convenience to the parties and the nature of injury which the defendants would suffer if the injunction was granted if the case is subsequently decided in their favour and that which the plaintiffs, on the other hand, might sustain if the injunction was refused and they should ultimately obtain judgment in their favour. In exercising its discretion to grant or refuse an order of interlocutory injunction a court must do so judiciously and judicially? See Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419.
An appellate court, in deciding to uphold an order of a lower court for an order of interlocutory injunction must recognize that in an interlocutory appeal, it must confine itself to those issues necessary for disposing of the appeal and make no pronouncement on anything that will tend to prejudice the main issues at the trial. See Ogbonnaya v. Ada Palm (Nig.) Ltd. (1993) 5 NWLR (Pt. 292) 147.
Applications for interlocutory injunctions are properly made on notice to the other side to keep matters in status quo and preserve the res until the determination of the suit. Normally evidence is by affidavit. At the lower court, the applicant, 1st respondent herein, filed 2 affidavits in support of the application for interlocutory reliefs. The 2nd, 3rd, 4th and 5th respondents therein, did not file any counter affidavits. The Inspector General of Police and the Attorney-General of the Federation, appellants/applicants herein, were 4th and 5th respondents in the application for interlocutory reliefs at the lower court.
The learned trial Judge came to the conclusion after reviewing all the affidavit evidence before him, that the respondents were deemed to have admitted some of the material averments in the affidavits in support of the application for interlocutory reliefs. None of these affidavits and the counter-affidavit of the Ekiti State House of Assembly are before us for a possible re-valuation. The learned trial Judge came to the conclusion that the affidavit evidence before him, in the application for interlocutory injunction remained unchallenged and uncontroveted. I do not think that this conclusion can be faulted in the circumstance of the instant case. I also do not think that this finding is ordinarily unreasonable.
At page 16 of the ruling of the lower Court of 23rd November, 2006 (exhibit M attached to the reply to 1st respondent’s counter affidavit filed on 7th December, 2006) the learned trial Judge decided thus:
“As for the res of this suit, from the affidavit evidence before me, the res is the constitutional immunity of the plaintiff. The refusal of this application will mean robber-stamping (sic) the threat of the 2nd to 5th defendants to arrest, detain and prosecute the plaintiff based on their understanding that the plaintiff has been impeached. If this is allowed, then, the res would have been destroyed such that if the uncertainty is resolved in favour of the plaintiff at the end of the trial, there will be nothing for the plaintiff to fall back upon. In other words, the res would have been destroyed.”
Elsewhere, in another ruling against a preliminary objection, the learned trial Judge, had decided that suit No. FHC/AK/CS/85/2006 pertained to and was connected with a challenge on the propriety or otherwise of the purported impeachment of the 1st respondent as the Governor of Ekiti State. It is the law in this country that a serving Governor is entitled to an immunity against arrest and prosecution.
Based upon the foregoing, I do not think that the decision of the lower court can be faulted, in so far as it was made on the basis of uncontroverted affidavit evidence. To me the finding of the learned trial Judge remains impeccable. In my humble view, the learned trial Judge was in the circumstances of the instant case, right in granting the application for interlocutory injunction.
The applications to suspend or stay the execution of the order of interlocutory injunction lack merit and are refused. They are hereby dismissed.
On the application for stay of proceedings, I wish to say that just like the law on injunctions this too is well settled and defined in a long line of judicial decisions. Having all the submissions of respective learned counsel in view and all the processes in support of the application for stay of proceedings and upon which learned counsel preferred their respective arguments, I wish to recall some of the guiding principles which a court must consider and apply in deciding whether or not to grant an application for stay of further proceedings pending appeal.
It is trite that the power to grant an application for stay of further proceedings pending appeal or not is discretionary. Expectedly, this discretion must be exercised judicially and judiciously and this can only be said to have been so done, if it was made having regard to the material placed before the court. This basic yardstick is at the top of all factors to be considered. Additional factors that may inevitably always arise for consideration also include, but not limited to:-
(1) That there must be a competent appeal;
(2) That the pending appeal is arguable;
(3) That the applicant must establish the existence of special and exceptional circumstance to warrant the grant of the application;
(4) That the court must consider the competing rights and convenience of both parties;
(5) That the action should not be an abuse of process; and
(6) Where the grant of an application for stay will unnecessary delay and prolong the proceedings, it will not be granted; and
(7) Where the issue of jurisdiction is raised on the pending appeal, the Court should grant stay of proceedings.
In Okorodudu v. Okoromadu (1977) 3 SC 21, the Supreme Court held that unless an applicant has established beyond doubt that the action ought not to go on, it should not be stayed. The court added further that it is essential for an applicant for a stay of proceedings to establish not only that the plaintiff might not succeed but that he could not possibly succeed. The onus is therefore on the applicant for a stay of further proceedings pending appeal to show that in the circumstances of his case it would be unjust and inequitable to refuse his application. See Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) 122 at 166.
It is also the duty of the applicant to show that it is imperative to stay proceedings by placing sufficient materials before the Court to enable it exercise its discretion in his favour. An application for stay of proceedings cannot be granted as a matter of course but only based on stringent laid down principles. See Kabo Air Ltd. v. INCO Beverages Ltd. & Ors. (2003) 6 NWLR (Pt. 816) 323. I wish to emphasise the decision of this court in United Spinners (Nig.) Ltd. v. Chartered Bank Ltd. (2001) 14 NWLR (Pt. 732) 195. After reviewing earlier authorities on this subject it was remarked that an order for stay of proceedings is a serious, grave and fundamental interruption in the right of a party to prosecute his case without any unnecessary delay. An applicant for such an order must show that the continuation of the proceedings in the peculiar circumstances of his case would be unreasonable.
It should also be reiterated that mere raising the issue of jurisdiction as in the instant case, is not conclusive to warrant the grant of the application sought. I do not consider it to be the law that once an issue of jurisdiction of the lower court is raised in an interlocutory appeal, the appellate court must grant a stay of proceedings pending the determination of the appeal. Each of the conditions stated above in the nature of things constitutes a special circumstance.
The grounds for the application for stay of proceedings are:
“(1) The appellants/applicants’ appeal herein border on the jurisdiction of the Federal High Court to adjudicate over this suit having regards to the reliefs sought by the 1st respondent in his originating summons;
(2) All the grounds of appeal raised in the notices of appeal are substantial and/or arguable to warrant the grant of an application for stay of proceedings;
(3) That the appellants/applicants are by their notices of appeal praying the Court of Appeal to strike out or dismiss the suit for want of jurisdiction;
(4) The appellants/applicants’ appeal if allowed by the Court of Appeal will automatically put an end to the entire suit and every proceeding in the Federal High Court;
(5) If this application is not granted and the prayers sought for by the 1st respondent are granted, there will be a serious constitutional crisis and destabilization of the peace in Ekiti State.
These grounds are supported by the averments in paragraphs 19 to 42 of the affidavit in support of this application together with copious annexures thereto, including the notices of appeal. The 1st respondent averred that these paragraphs 19 – 42, amongst others are false. This averment was made by the 1st respondent in paragraph 6 of his counter affidavit dated 11th December, 2006. I have considered paragraphs 10 – 12 of the counter affidavit of the 1st respondent.
The counter affidavit of the 1st respondent against the order for stay of further proceedings did not go a long way or in any way to change the fact that the respective appellants/applicants have challenged the jurisdiction of the lower court to entertain the originating summons filed by the 1st respondent. The preliminary objections filed, argued and decided upon at the lower court and the various grounds of appeal of the appellants/applicants clearly show that there is a very robust and dogged challenge to the competence of the originating summons, jurisdiction wise. There is a very strong indication that the issue of the jurisdiction of the lower court to entertain the originating summons is immediate, present and live. Because jurisdiction is a very crucial issue, it needs to be decided by this Court one way or another at the prompting of the appellants/applicants. I also found it very pertinent to read through the various grounds of appeal filed by the appellants/applicants. Having done all these, and also considering all the main and collateral circumstances of this case, I am of the view that a stay of further proceedings pending the determination of the respective appeals of the Appellants, challenging the jurisdiction of the lower Court to entertain the originating summons in Suit No. FHC/AK/CS/85/2006, ought to be granted. Application for stay of further proceedings is adjudged to be meritorious and is hereby granted. I make no order as to costs. Parties shall bear their own costs.
Other Citations: (2007)LCN/2229(CA)
