Stallion Nigeria Limited & Ors. V. Economic & Financial Crimes Commission & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
MARY U. PETER-ODILI, J.C.A.
This is an appeal against the ruling of the Federal High Court, Abuja presided over by Honourable Justice S. J. Adah refusing to grant part of the Appellants’ (Applicants in the court below) relief for interlocutory injunction against the Respondents.
FACTS:
The Appellants herein as Plaintiffs/Applicants before the Lower Court commenced the action giving rise to this appeal on 9th September 2003 vide a writ of summons and Statement of Claim, seeking several declaratory reliefs:
Simultaneously with the writ of summons and statement of claim, the Appellants also filed before the lower court a Motion Ex-parte and a motion on Notice seeking injunctive reliefs against the 3rd Respondent herein. By another Motion on Notice filed on 2nd October 2003, the Appellant sought an amendment to the earlier Motion on Notice for orders of injunction.
On the 19th September 2003, the Lower Court took argument in respect of the Motion on Notice for an order of interlocutory injunction and on the 22nd September, 2003 the Lower Court delivered its ruling granting the Appellants’ prayers in part. The Lower Court refused that aspect of the Appellants’ prayer seeking injunction to restrain the 3rd Respondent from “…instigating the Central Bank of Nigeria from granting foreign exchange approvals for the plaintiffs’ lawful businesses..” on the ground that same was not related to any of the substantive claims before the Lower Court. The Appellants being dissatisfied with that aspect of the ruling have appealed to this court upon a Notice of Appeal containing five (5) grounds which, without the particulars are:-
- The learned trial judge misconceived the plaintiffs’ claim and the uncontroverted evidence before the evidence before the court when he held that the interlocutory injunction sought by the appellant was ”generously couched to include both issues raised and those not raised” in the claim before the court thereby occasioning miscarriage of justice.
- The learned trial judge erred in law and failed in exercise of his discretion properly by failing to advert his mind to the nature and scope of the plaintiff’s claim and the irreparable damage the plaintiffs would suffer by the failure of the Court to grant the relief jettisoned by the learned trial judge in its ruling.
- The learned trial judge erred in law and failed to apply the relevant principles of law relating to interlocutory injunction when it jettisoned part of the reliefs and thereby occasioned miscarriage of justice.
- The learned trial judge failed to exercise his discretion properly in not granting the reliefs jettisoned by the court on the uncontroverted evidence and the plaintiffs’ claim when the said reliefs were necessary and vital in order to maintain the status quo ante bellum pending the final determination of the issues raised in the plaintiffs’ claim.
- The learned trial judge erred in law in failing to grant the interlocutory injunction as claimed by the appellants when the effect of the order made will enable the Defendants to completely destroy the subject matter of the case and render the grant of the reliefs in the substantive suit nugatory.
The Reliefs sought are to allow the appeal and grant the interlocutory injunction as prayed. I would set out the reliefs in the substantive suit stated in the writ of summons and the statement of claim filed on 9th September, 2003 as follows:-
i) A DECLARATION that the powers conferred on the commission can only be exercised in respect of any act or omission that took place subsequent to 14th December 2002 when the Economic and Financial Crimes Commission (Establishment) Act 2002 came into effect.
ii) A DECLARATION that the defendants acted in excess of their powers and ultra vires the Economic and Financial Crimes Commission (Establishment) Act, 2002 by directing the Plaintiffs by letter of 25th August 2000 to furnish them with information on all contracts, obtained and executed by the group from January 1997 to June 2003 for the purposes of investigating the allegations of Economic and Financial Crimes against plaintiffs’ business, officers, and workers pursuant to the Economic and Financial Crimes Commission (Establishment) Act, 2002.
iii) AN ORDER of injunction restraining the defendants from enforcing the demand contained in the letters dated 25th August, 2003.
iv) AN ORDER directing the 2nd defendant to refund the sum of N726,696,680.00 paid by the plaintiffs to the rd defendant in respect of the alleged order invoicing of the importation of rice and interest at the rate of 21% from the 10th June, 2003 till the said sum is fully liquidated.
At the hearing Mr. Ogunwumiju for the Appellants adopted the Appellants Brief filed on 1/11/05 wherein Appellants formulated a sole issue which is;
Whether the learned trial judge was not wrong to have circumscribed the reliefs sought by the Appellants in their Motion on Notice having regard to the facts and circumstances of this case.
The 1st Respondent was absent and not represented even though they were represented on 20/11/07 when the date for hearing was taken. They had not filed any Brief.
For the 2nd and 3rd Respondents, Mr. Agbu filed a Brief on 28/2/07 and adopted same. They framed one issue which is as follows:-
Whether the Lower Court rightly refused that leg of the Appellants’ prayer seeking to restrain the 3rd Respondent from instigating the Central Bank of Nigeria from granting foreign exchange approvals for the Appellants’ lawful business.
I would utilise the issue as framed by the 2nd and 3rd Respondents as it seems to me apt and it is:-
ISSUE
WHETHER THE LOWER COURT RIGHTLY REFUSED THAT LEG OF THE APPELLANTS’ PRAYER SEEKING TO RESTRAIN THE 3RD RESPONDENT FROM INSTIGATING THE CENTRAL BANK OF NIGERIA FROM GRANTING FOREIGN EXCHANGE APPROVALS FOR THE APPELLANTS’ LAWFUL BUSINESS.
In arguing the appeal, learned counsel for the Appellants referred to the reliefs paragraphs (v) & (viii) and some paragraphs in the supporting affidavit viz 49, 52 and 53 and paragraphs 7 – 13, 31 of the 2nd Further supporting affidavit. He also referred to the salient part of the Ruling of the learned trial Judge. He stated that it is settled law that the most usual basis for the grant of an interlocutory injunction is the need to protect the Applicant by preserving the circumstances which are found to exist at the time of his application until the rights of the parties are able to be finally established by proper procedures. He cited Oduntan v. General limited (1995) 4 NWLR(pt. 387) 1 at 12 – 13 H.
Mr. Ogunwumiju for the Appellants went on to say that the Appellants’ application disclosed the urgent need to grant a preservative order. That the trial judge got it wrong when he held that the order sought for by the Appellants in their Motion on Notice included issues that were not raised in the pleadings. That the trial Judge wrongly placed reliance on the Supreme Court decision in Adenuga v. Odumeru 5 NSCQR 148, (2001) 2 NWLR (pt. 696) 184. That the case does not apply to the present one.
Learned counsel for the Appellants further stated that it is settled law that an interlocutory injunction is usually granted with the object of keeping matters in status quo until the question at issue between the parties is determined. He cited Ojukwu v. Lagos State Government (1986) 3 NWLR(pt. 26) 39; Obeya Memorial Specialist Hospital v. Attorney-General Federation &. anor. (1987) 3 NWLR (pt.60) 325; American Cyanamid Co. v. Ethicon Ltd. (1975) A C 396 – 409.
He said the very essence of seeking that prayer as shown in the unchallenged affidavit evidence before the court was to preserve the subject – matter of the suit. That if the Respondents are not restrained from instigating the CBN against the Appellants, then the subject – matter of the litigation would have been completely destroyed. That it is settled law that the Court of Appeal Act vests the Court of Appeal with the jurisdiction of the trial court to make any order necessary for determining the real question in controversy in an appeal. He cited Section 16 of the Court of Appeal Act, C.G.G.(Nig.) Ltd. v. Ogu (2005) 8 NWLR(pt. 927) 366 at 382; L.S.D.P.C. v. Adeyemi – Bero (2005) 8 NWLR (pt.927) 330 at 363.
Mr. Agbu, learned counsel for the 2nd and 3rd Respondents contended that an application for an order of interlocutory injunction is essentially seeking the exercise of court’s discretionary power in favour of the applicant. That the court’s discretionary powers are exercised judicially, judiciously and based on known legal principles. He cited Ogbonnaya v. Adapalm (Nig.) Ltd. (1993) 5 NWLR (pt. 292) 147 at 157 F – G; Ogunsola v. Usman (2002) 14 NWLR (pt. 788) 636 at 653 paras E – H; Duwin Pharmaceutical Chemical Company Limited v. Beneks Pharmaceutical &. Cosmetics Limited &. ors. (2000) 15 NWLR (pt. 689) 66 at 76 paras E- F.
Learned counsel for the Respondents 2nd and 3rd said Appellants in search of the exercise of the discretionary powers of the court should have furnished the Lower Court with the materials to enable it grant that aspect of the prayer seeking to restrain the 3rd Respondent from instigating the Central Bank of Nigeria from granting foreign exchange approvals for the appellants’ lawful businesses. That the appellants did not establish any nexus between their substantive claims and the 2nd prayer in the application for an order of injunction. He cited the cases of Adenuga v. Odumeru (2001) 2 NWLR (pt. 696) 184 at 196 paras A – C Akibu v. Oduntan (1991) 2 NWLR (pt. 171) 1 at 14 paras A – B; Adewale Construction Co. Ltd. v. IBWA (1991) 7 NWLR (pt.204) 498 at 507 D.
That is the summary of the facts and submissions proffered by the parties in this appeal and from all that I see the area of controversy in this appeal is very narrow and it is based on one of the reliefs claimed by the Appellants as plaintiffs/applicants in the court below which is:-
AN ORDER of interlocutory injunction restraining the defendants whether by themselves, their agents, servants or any person acting on their behalf from confiscating the plaintiffs’ business and assets, closing and/or sealing up the plaintiffs’ business premises, instigating the Central Bank of Nigeria from granting foreign exchange approvals for the plaintiffs’ lawful businesses or in any manner whatsoever harassing, intimidating, arresting and detaining the plaintiffs’ directors or staff, disturbing and detaining the plaintiffs’ directors or staff, disturbing or disrupting the plaintiffs’ operations pending the hearing and final determination of this suit”,
The learned trial judge did not grant the above injunctive relief while he granted other heads of the application on the basis that what is asked for under the above stated relief did not arise from the claim before the court either in the Writ or Statement of Claim. It is trite law that when an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be violation of the plaintiff’s legal right is made upon contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when hypothetically the existence of the right or the violation of it or both is uncertain until final judgment is given in the action. It is to mitigate the risk of injustice to the plaintiff during the period the uncertainty could be resolved that the practice arose granting him relief by way of interlocutory injunction. See Ogunsola v. Usman (2002) 14 NWLR (pt.788) 636 at 655 – 656.
An application for interlocutory injunction raises the issue of exercise of discretion by the trial court. However, the discretion conferred on the court is not absolute as it is subject to its being exercised judicially and judiciously. See Ogunsola v. Usman (2002) 14 NWLR (pt.788) 636 at 653.
The object of an interlocutory injunction is to protect an applicant against an injury which may be occasioned by the violation of his right for which he cannot adequately be compensated in damages if the dispute is eventually resolved in his favour at the trial. See Ogbonnaya v. Adapalm (Nig.) Ltd. (1993) 5 NWLR (pt.291) 147 at 157 – 158; John Holt v. HAWUNC (1963) 2 SCNLR 383.
The premises for an application for an interlocutory injunction is the claim before the court. An interlocutory injunction is usually granted with the object of keeping matters in status quo until the question at issue before the parties is determined. It is not available in respect of issues not raised in the action or proceedings before the court when such issues or matters are directly related to the issues raised. It is therefore not available to restrain parties in respect of matters outside the issue raised in appeal before the appeal court. See Akibu v. Oduntan (1991) 2 NWLR(pt.171) 1 at 14 per Nnaemeka-Agu JSC; Ojukwu v. Lagos State Government (1986) 3 NWLR (pt.26) 39; Obeya Memorial Specialist Hospital v. Attorney-General (1989) 3 NWLR (pt. 60) 325; Vaswani v. Savalakh (1972) 12 SC 77 at 81; Okafor v. Nigeria (1987) 4 NWLR(pt. 64) 129 at 136 – 138; Fawehinmi v. Akilu (1989) 3 NWLR (pt.112) 613 at 617.
Where interlocutory reliefs sought, are not in respect of or directly related to a claim before the court, the court is without competence and jurisdiction to hear it, since it is not in respect of a claim before it.
See Adenuga v. Odumeru (2001) 2 NWLR (pt. 696) 184 at 196, 198, 199; Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
An application for interlocutory injunction will not be granted unless it relates to a subject matter which constitutes a triable issue in the substantive suit before court. I rely on Adewale Bello Construction Co. Ltd. v. International Bank of West Africa Limited (1991) 7 NWLR (pt.204) 498.
The Ruling of the court below which forms the gravemen of this appeal are restated below as follows at page 132 of the Records:-
“The order of injunction sought in this application is generously couched to include both issues raised and those not raised. The court can only grant issues raised in the claim before the court. From the writ and statement of claim of the plaintiffs before the court the plaintiffs never claimed any of those reliefs loaded into the prayer for injunction other than that relating to confiscating, closing or sealing up of the plaintiffs’ businesses. The court cannot therefore grant any of those that are not part of the claim pending before the court. I hold therefore that it is the first leg of the prayer that is qualified for consideration in this application”.
If indeed neither in the Writ nor Statement of Claim the issue of the instigation of the Central Bank is shown to exist then the learned trial Judge may well be right. However,I have perused the Statement of Claim which spans from pages 6 – 16 and at paragraph 24 it is stated as follows:-
“24. The Plaintiffs state that as a result of the unwarranted and unfounded allegations by the 1st and 2nd Defendants that the Plaintiffs are involved in fraudulent and shady financial transactions, the Central Bank of Nigeria has stopped approving foreign exchange for the plaintiffs for their various lawful businesses”.
From the above it cannot be right to say that in requesting the injunction or this leg of injunctive relief that the Plaintiffs/Appellants went outside the issues or issue which form the fulcrum of the interlocutory injunction reliefs sought. Nor can it be correctly contended that the conditions upon which an interlocutory injunction would be granted did not exist for that head of prayer.
The Court of Appeal under Section 16 of the Court of Appeal Act is endowed with sufficient power to exercise the power and functions of the lower Court. See L. S. D. P. C. v. Adeyemo – Bero (2005) 8 NWLR (pt.927) 330 at 363, C.G.G. (Nig.) Ltd. v. Ogu (2005) 8 NWLR (pt.927) 366 at 385.
The Court of Appeal in exercise of that power under Section 16 of the Court of Appeal Act can always resort to the general powers vested in them and make a necessary order for determining the real question in controversy between the parties in the appeal as in the case at hand as strict application of the rules of pleadings is capable sometimes of leading to miscarriage of justice. See Jallo Ltd. v. Owoniboys Technical Services ltd. (1995) 4 NWLR (pt. 391) 534 at 549.
From the foregoing I do not hesitate in answering the issue in controversy in the negative and in favour of the Appellant. Therefore I allow this appeal and set aside the decision of the court below and make the following order which that court ought to have made:-
AN ORDER of interlocutory injunction restraining the defendants whether by themselves, their agents, servants, or any person acting on their behalf from confiscating the plaintiffs’ business and assets, closing and/ or sealing up the plaintiffs’ business premises, instigating the Central Bank of Nigeria from granting exchange approvals for the intimidating, arresting and detaining the plaintiffs’ directors or staff, plaintiffs’ lawful business or in any manner whatsoever harassing, disturbing or disrupting the plaintiffs operations pending the hearing and final determination of this suit.
I award N10,000.00 costs to the Appellants to be paid by the Respondents 1st, 2nd and 3rd.
Other Citations: (2008)LCN/2652(CA)
