Mrs. Slyvia Salau & Ors V. Alhaja Kudiratu Para-koyi (2000)
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GALADIMA, J.C.A.
This is an appeal against the ruling of Honponu-Wusu J. of the Lagos State High Court, Lagos Judicial Division delivered on 25th October, 1996 refusing to set aside the ex-parte Order of interim injunction restraining the appellant from allocating altering, leasing, renting, selling or dealing with all the assets and or properties of the estate particularly the property situated and lying at No.2 Lalupon Close, S.W. Ikoyi Lagos pending the determination of the motion on notice dated and filed by the respondent on 20/3/95.
The factual background relevant to this appeal is that the respondent as plaintiff claimed at the lower Court in Suit No. LD/4239/94 as follows:
“1. A declaration that Dr. Godwin Olatunji Balogun and Chief Odutola Balogun are not entitled to be co-administrators to the Estate of late Dr. H.O.O. Salau
2 A declaration that (1) Jareg Olufunmilayo Ekundayo Salau (male) (2) Miss Adetutu Salau (3) Miss Marian Omolara Salau and (4) Miss Omolabake Salau are the legitimate beneficiaries to the estate of Late Dr. H.O.O. Salau.
- An order directing the 4th defendant to issue an amended letter of administration with (1) Mrs. Abosede Salau (2) Mrs. Sylvia Salau and Alhaja Kudiratu Parakoyi as co-administrators of the Estate of late Dr. H. O. O. Salau.
- An order that Dr. Olatunji Balogun, Chief Tunde Odutola Balogun, Mr. Abosede Salau and Mrs. Sylvia Salau do render account of their stewardship or administration of the Estate of Late Dr. H.O.O. Salau and pay the proceeds if satisfied with that decision any accruing thereof to the beneficiaries of the said Estate”.
On 27/2/95 the lower Court entered trial Judgment against the appellants granting all the reliefs sought by the respondent. Dissan the appellants in their amended notice of appeal filed 5 grounds of appeal from which they formulated 5 issues in their brief of argument as follows:
2.1. Whether the Lower Court was functus officio on 27th February 1995 in suit No.LD/4239/4 before granting the Ex-parte order of interim injunction dated 18/4/95 restraining the appellant from leasing, renting etc. 2. Lalupon Close, Ikoyi subject of the contempt proceedings?.
2.2 Whether it is proper for the Lower Court to grant ex-parte Order of interim injunction restraining the appellants from leasing, renting 2 Lalupon Close, Ikoyi that was not specifically claimed on the writ of summons?.
2.3 Whether the contempt proceedings (including form 48 and 49 initiated against the appellant were steps taken to enforce the judgment of the lower court dated 27/2/95?.
2.4 Whether judgment in suit No.LD/802/92 constitutes res judicata ousting the jurisdiction of the lower Court in making ex-parte order of interim injunction in suit No. LD/4239/94?
2.5 Whether the appellants can be tried for contempt for alleged disobedience of the said ex-parte Order of interim injunction?.”
The respondent on the other hand formulated a single issue for determination which reads thus:
“1 Whether the learned trial Judge was in error by entering judgment for the respondent and granting the remedies as contained in the writ of summons and statement of claim in default of pleadings and without taking evidence?.”
The respondent did not specifically respond or react to each of the issue raised in the appellant’s brief of argument but based on the argument and reasons on this solitary issue formulated, urged that the appeal be allowed. Although it is conceded by the respondent that this appeal be allowed generally, I am bound by the Rules of this Court to carefully consider all the issues raised by the appellants so as to arrive at just determination of this appeal.
The first issue for determination raises the question whether the lower court was functus officio on 27th February, 1995 in suit No.LD/4239/94 before granting the ex-parte Order of interim injunction dated 18/4/95 restraining the appellants from leasing, renting etc 2 Lalupon Close, Ikoyi subject of the contempt proceedings.
The final declaratory judgment entered in suit No. LD/4239/94 in favour of the respondent on 27/2/95 had not been set aside. It is trite that once a competent court had decided on an issue and the decision of that court is truly embodied in the same judgment or order that has been effective, then the Court cannot re-open the matter and cannot substitute a different decision in place of the one which has been duly recorded. To do that, it would seem, is the business of an appellate court. See A.T Bakare v. T. S. Apena (1986) 4 NWLR (Pt. 33) P. 26 and Minister of Lagos State Affairs, Mines and Power v. Akin Olugbade (1974) 1 All NLR (Pt. 2) 226. There is an exception to this principle. That is, where the statute or any written law empowers the court to grant either a stay or execution under judgment enforcement rules or vary judgment to enable judgment debtor pay by instalment. See Sanusi v. Ayoola (1992) 9 NWLR (pt. 265) p. 292-293.
With the greatest respect the learned trial Judge did not consider these cases in arriving at his decision.
I think that Order 39 rules 1 and 4 of the High Court of Lagos State Civil Procedure Rules, 1972 under which the respondent brought the ex-parte application for interim injunction, do not give the lower Court powers to grant injunction when final judgment has been entered. The rules to my mind contemplates a pending action.
It is on account of this that the order of the lower Court made on 18/4/95 is a nullity. The lower Court order of that date was not made as a means of enforcing the judgment of court dated 27/12/95.
With respect to the second issue, there is nothing on the respondent’s writ of summons and the statement of claim to the effect that the respondent requested for an interim injunction restraining the appellants from leasing 2, Lalupon Close as a specific relief. Interlocutory application ought to be based on specific reliefs sought in substantive action. The ex-parte order of interim injunction was not requested for. For the lower court to grant a relief that was not claimed is to make such relief incompetent, null and void.
It is my strong view that the order of 18/4/95 is inconsistent with the reliefs specifically claimed on the writ of summons (reproduced above), and it is incompetent. It is made without jurisdiction. To grant a relief that was not requested for is like making a fresh case different from the existing cause of action. I must say that such grant offends the basis and fundamental principles of administration of justice. It does not give notice to the appellants by affording them the opportunity to be heard. Nnemeka-Agu, J.S.C. in Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350 aptly stated these words which have come down the ages that:
“It has been said times without number that a court ought not to play the role of Father Christmas which can go round granting parties relief which they have not asked for. See Nwanya v. Nwanya 454 Nigerian Weekly Law Reports 15 January, 2001 (1987) 3 NWLR (Pt. 62) 697. In our adversary system, a court makes orders on the lis or issues raised by the parties. Where a court grants to a party a relief which it did not seek, it has made the order on a lis not raised by the party. This will be an order made without jurisdiction and therefore a nullity. See Umemweluaku v. Ezeana (1972) 5 SC 343; Western Steel Works Ltd v. Iron & Steel Workers Union (1986) 3 NWLR (Pt. 30) 617, 618”.
See also the following cases: Ladoke v. Olobayo (1992) NWLR 8 (Pt. 261) P. 605; Okoya v Santilli (1991) 7 NWLR (Pt. 206) P. 753; Akapo v. Hakeem-Habeeb (1992) 6 NWLR (pt. 247) P. 266 para D-G; Fabunmi v. Agbe (1985) 1 NWLR (pt. 2) P. 299.
The learned trial Judge relied on Order 39 rule 12 of the High Court Civil Procedure Rules, 1972. Before the lower Court grants injunction after judgment such injunctive relief must have been claimed on the writ of summons. The respondent cannot hide under the cloak of Order 39 rule 12 to obtain a fresh, unclaimed and unproven relief. To do so would amount to denial of fair hearing as enshrined under S. 33(1) of the 1979 Constitution then applicable. Moreover, this order will be in conflict with the said S. 33 (1) of the 1979 Constitution now S.36(1) of 1999 Constitution, which by virtue of S.1(1) of the said 1979 Constitution or S.1 (3) of 1999 Constitution renders void Order 39 rule 12 to the extent of its inconsistency.
To allow Order 39 rule 12 protect unclaimed and unproven relief is not only to breach the cardinal principle of audi alteram partem but to sacrifice this latin maxim on the alter of exigencies.
When the appellant who are entitled to be heard before the order of 16/4/95 was made and were not all heard, then by operation of section 36(1) of 1999 Constitution they cannot be bound by that order. Here it does not matter and it is irrelevant that the same decision would have been reached if the appellants had been heard. The decision must be set aside, because in effect, it is null and void. See the following cases: Anakwenze v. Tapp. Industry Ltd (1991) 7 NWLR (pt. 202) P. 177.; Federal Civil Service Commission v. Laoye (1989) 2 NWLR (Pt. 106) 652; Adigun V. A.-Gen. Oyo State (1987) 1 NWLR (Pt. 53) 678.
The third issue deals with the question of whether the contempt proceedings initiated against the appellants were steps taken to enforce the judgment of the lower court of 27/2/95.
The lower Court in dismissing the appellant’s application to set aside the exparte order of 18/4/95, ruled that Form 48 and 49 were issued as steps taken to enforce the judgment of the court of 27/2/95. I am yet to find from the record where the respondent had filed formal application for the enforcement of the judgment of the lower Court.
This apart, the judgment of the lower Court of 27/2/95 would appear to be declaratory reliefs.
Could it be said that Form 48 and 49 were issued as a way of enforcing judgment of 2712/95? No, it was clearly for the alleged disobedience of ex-parte order of interim injunction of 18/4/95 which did not form part of the judgment of 27/2/95. It would seem to me that the reasoning of the lower Court in its ruling is misconceived as the wordings of Form 48 and 49 are very clear. They are not ambiguous. This apart, the judgment of 27/2/95 does not contain any relief restraining the appellant from leasing No.2 Lalupon Close, Ikoyi as claimed by the trial Judge. There is no injunctive relief in the judgment of 27/2/95. The learned trial Judge, with due respect must have therefore contradicted himself. He has not convinced me that the order of interim injunction was granted to restrain the appellants from disobeying the judgment of 27/2/95.
The forth issue is related to ground five of the ground of appeal. The learned Counsel for the appellants have submitted in their brief that the judgment in suit No. LD/802/92 constituted estoppel res judicata between the appellants and the respondent in respect of No. 2 Lalupon Close, Ikoyi. Here, I must avoid the pitfall set to entrap the wisdom of this Court. To decide this issue in favour of the appellant is to say the least that the suit No. LD/4239/94 has been tried on the merit. The issue of estoppel res judicata is not at all open to the appellants. It is premature.
With respect to the fifth issue, I must say that since the lower Court was functus officio before making the ex-parte order that resulted in the contempt proceedings, and the relief was not claimed on the writ of summons, I will as well say that the order was made in want of jurisdiction. The entire contempt proceedings should be set aside. A court that has no jurisdiction over a matter cannot validly exercise any judicial power thereon. See State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33 Yoye Olubode (1974) 1 All NLR (Pt.2) P. 118
For the reasons stated above, this appeal therefore succeeds and it is allowed. The ruling of the lower Court of 27/2/95 is hereby set aside. The case is remitted to the Chief Judge of Lagos State Judiciary, for re-assignment to another Judge of the Lagos State High Court for trial of the suit No.LD/4239/94 on the merit. I award no costs to parties.
Other Citations: (2000)LCN/0899(CA)
