Yakubu Iyanda V. Saidu Amori (2006)
LawGlobal-Hub Lead Judgment Report
ABDULLAHI, J.C. A.
This is an appeal against the ruling of the High Court of Justice, Kwara State, delivered by A. D. Bamigbola, J. on 22nd February, 2005, granting an order of injunction against the appellant herein pending hearing and determination of the respondent’s appeal pending in this court.
By motion on notice dated and filed on 15/11/2004, the applicant, who is respondent in the present appeal, prayed for the following orders:-
“1. An order of interlocutory injunction restraining the respondent, his servants, agents and/or any persons deriving authority from him from demolishing, tampering with, trespassing on, dealing with or interfering with the appellant’s buildings and/or or structures in any manner what so ever having the effect of prejudicing or adversely affecting the rights and interest of the applicant in the buildings and/or structures situate, lying and being at Ile Abondo, Oloje, Ilorin, Kwara State pending the hearing and final determination of the appeal to the court of appeal lodged on the 15th day of November, 2004.
- And for such further order or other orders as this Honourable Court may deem fit to make in the circumstance of this case”
The facts of the case as can be gleaned from the record are that, the respondent herein as plaintiff before the trial Upper Area Court filed an action against the appellant herein as the defendant claiming the following reliefs:
“1. A declaration that the consent judgments dated 24th July, 2001 and given by this Honourable Court in suit No. CVF/78/93: Yakubu Iyanda v. Mallam Saidu Amori, and 10 others, were given under a misrepresentation and a mistake of facts and is therefore a nullity.
- A consequential order setting aside the consent judgment dated 24th July, 2001”
The trial Upper Area Court did not find merit in the respondent/plaintiff’s case and accordingly dismissed same. The respondent was not happy with the decision of the Upper Area Court and expressed so by appealing to the High Court of Justice, Kwara State, in its appellate jurisdiction for a reversal of the trial Upper Area Court’s judgment.
The High Court in its appellate jurisdiction, on 19/10/2004, also affirmed the decision of the Upper Area Court. The respondent aggrieved with the said decision appealed to this court and filed an application for interlocutory injunction pending the determination of his appeal by this court in the court below.
In a considered ruling delivered on 22/02/2005, by A. O. Bamigbola, J, the application for interlocutory injunction was granted. The learned trial Judge who heard the application stated thus:-
“I have carefully considered the totality of the case, I am of the considered opinion that the applicant’s application substantially complied with the aforesaid principles guiding the grant of injunction pending appeal.
I find merit in the application.
It is anti (sic) hereby granted as prayed”
It is against the ruling of the lower court stated supra that appellant/respondent filed a notice of appeal consisting of four grounds in which he seeks the following relief:-
“This Honourable Court is urged to allow the appeal in its entirety and a fortiori set aside the ruling delivered by Honourable Justice A. O. Bamigbola delivered on the 22nd day of February, 2005”
When the appeal came up for hearing on 21/05/2006, C. O. Roland Otaru (Mrs.) adopted the appellant’s brief which was filed on 13/06/2005 as well as the reply brief filed on 12/03/2006 and urged us to allow the appeal. Counsel for the respondent, Mr. K. K. Eleja Esq., adopted the respondent’s brief of argument which was filed on 14/03/2006 pursuant to the leave granted on 18/03/2006. Learned counsel further stated that, there is notice of preliminary objection to ground three of the grounds of appeal which was issued and raised in the brief. Learned counsel prayed that ground three be struck out for being incompetent and that the whole appeal be dismissed for lacking in merit.
The appellant filed notice of appeal dated 4th day of March, 2005. It consists of four grounds out of which two issues have been distilled for consideration by this court. The issues which can be found on page 4 of the appellant’s brief are as follows:-
“i. Whether all order of injunction pending appeal against the judgment of the High Court of Justice, Ilorin (appellate session) delivered on the 19th day of October, 2004, ought to have been granted by the learned trial Judge when the issue of ‘res’ was not the subject-matter before the High Court of Justice, Ilorin in its judgment of 19th October, 2004.
ii. Whether the learned trial Judge was competent to sit as a single Judge in granting the order of injunction pending appeal against the judgment of the High Court of Justice. Ilorin delivered on the 19th day of October, 2004 in its appellate session.”
The respondent on his part equally formulated two issues for determination as follows:-
“i. Whether considering the facts at its disposal and the circumstances of the case culminating into the appeal the lower court did not act correctly in granting an order of injunction as she did?
ii. Whether the lower court presided over by a single Judge of the high court did not posses the vires to entertain and grant the application for injunction pending appeal?”
I shall now proceed to deal with the issues as formulated. Learned counsel for the appellant argued that, the fulcrum of the claims before the Upper Area Court which culminated in the decision of the said court delivered on the 5th day of September, 2003 and upon which the High Court of Justice delivered its judgment on 19/10/2004 was for “A declaration that the consent judgment dated the 24th day of July, 2001 and given by this Honourable Court in Suit No. CVF/78/93: Yakubu Iyanda v Mallam Sa’idu Amori and 10 others was given under a mistake of facts and misrepresentation and is therefore a “nullity”.
Learned counsel further argued that, the issue relating to any “RES”, structure or building was not the subject matter in which the judgments of the two lower courts were based.
It is the contention of the learned counsel that the simple and direct issue was the setting aside of the consent judgment delivered by the Upper Area Court on the 24th day of June, 2001, on the ground of fraud and misrepresentation. There was nothing contained in the judgment of the High Court delivered on 19th October, 2004, to be restrained pending appeal, learned counsel contended.
Learned counsel submitted that, the claim before the Upper Area Court, which culminated in the judgment of the High Court in its appellate jurisdiction, was a declaratory order. The learned trial Judge was therefore wrong in granting the application of the respondent on 22/2/2005; the claim on which an appeal was lodged to this court was a declaratory order which cannot be stayed. He relied on the case of Albion Construction Ltd. v. Rao Investment and Properties Ltd. (1992) 1 NWLR (Pt. 219) P. 583 and Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) P.517 at Pages 596 – 597.
Learned counsel submitted that, the position is even more precarious, which in a situation like in this case, the declaratory relief was refused both by the trial Upper Area Court and the High Court in its appellate jurisdiction. Since a declaratory order even if granted cannot be stayed, it follows mutatis mutandis that an injunctive order cannot also be granted where a declaration is refused. He relied on the case of Leymond Investment Co. Ltd. and Ors. v. C.B.N. and Ors. (2003) FWLR (Pt. 179) P. 1264 at Page 1276, Per Aderemi J.C.A. He urged the court to hold that same cannot be stayed.
Preliminary Objection
Learned counsel to the respondent, started with the preliminary objection embodied in his brief of argument. The objection raised by the Learned Counsel relates to the competence of ground 3 contained in the notice of appeal. The grounds upon which the objection is premised include:
“i. The issue of improper composition of the High Court to entertain the application culminating into the appeal was never canvassed before the High Court.
ii. Since it was not canvassed, the appellant was raising it for the first time before this Honourable Court.
iii. The requisite leave to so do was never sought nor obtained by the appellant.
iv. The said Ground 3 is liable to he struck out without much ado.”
Learned counsel argued that, the issue of jurisdiction of the trial court to entertain the application as a court presided over by a single Judge was never raised at all by the appellant. Learned counsel referred to the counter-affidavit of the appellant herein at pages 22 – 24 and the avalanche of documents/exhibits annexed thereto at pages 25 – 49 and argued that, the appellant never pretended to be challenging the jurisdiction of the lower court to entertain the application. Learned counsel further argued that, it is surprising that the lower court, all through its ruling did not comment on nor pronounce on the issue of whether or not it had jurisdiction to entertain the application. It is not in dispute; Learned counsel posited that, the issue was raised by the appellant for the first time before this court. Regrettably, Learned counsel further posited, no leave was sought or obtained to raise it as a fresh issue before this court.
It is the submission of the learned counsel, that being an appellate court, this court will not make the practice to allow a party to raise and canvass points that were not canvassed before the court below. He relied on the cases of F. B. N. PLC v. A. C. B. Ltd. (2006) 1 NWLR (Pt. 962) 438 at P. 475 and Horizon Fibres (Nig) Plc. v. M. V. Baco Liner 1 (2002) 8 NWLR (Pt. 769) P. 466 at P. 489.
Learned counsel further submitted that notwithstanding the facts that the appellant has clothed the ground or complaint with the garb of a jurisdictional issue, the requisite leave must still be sought and obtained. He relied on the cases of Gabriel v. The State (1989) 5 NWLR (Pt. 122) 457 Pt P. 462 and Lipede v. Sonekan (1995) 1 NWLR (Pt. 374) P. 668 at 685,
Learned counsel submitted further that, since the requisite leave had not been sought nor obtained up to the time the objection was raised, the ground of appeal is liable to be struck out. He cited the case of Omakhafe v. Esekhomo (1993) 8 NWLR (Pt. 309) 58 at P.74. He urged the court to strike out ground 3 and issue 11 distilled from same. He urged the court to uphold the preliminary objection.
The appellant in his reply brief submitted that it is trite law that the issue of jurisdiction can be raised at anytime in the proceedings even on appeal. The inchoate composition of a court borders on the jurisdiction of the court. He relied on the case of Madukolu and Ors v. Nkemdilim (1962) 1 ALL NLR (Pt. 4) P. 587 at P. 594. Learned counsel referred to section 241 (1) (F) (ii) of the 1999 Constitution and submitted that under the said provisions, the appellant does not require leave to appeal against the decision of the lower court since the appeal is predicated on the granting or refusal of the order of injunction; and the issue of jurisdiction being a question of law, can be raised at any level or stage even on appeal. Learned counsel urged us to dismiss the preliminary objection as frivolous and a mere academic exercise, to say the least.
Now, before delving into the arguments canvassed by the learned counsel for the respondent relating to the first issue for determination, it is appropriate to consider the preliminary objection raised by the respondent. The reason for doing so is obvious. If the preliminary objection is up held, it would be an exercise in futility to give consideration to issue No. 2 as formulated by the learned counsel for the appellant. But, if it is overruled, it goes without saying that consideration must be given to the 2nd issue as formulated by the appellant.
As earlier stated in this judgment the preliminary objection is predicated on ground three of the notice of appeal and issue No.2 distilled from it. The said ground reads thus:-
“3. The learned trial Judge erred in law in adjudicating on the respondent’s notice for all order of injunction pending appeal when he lacked jurisdiction to sit as a single judge”
The issue distilled from the said ground, at the risk of repeating myself is as follows:-
ii. Whether the learned trial was competent to sit as a single Judge in granting the order of injunction pending appeal against the judgment of the High Court of justice, Ilorin delivered on the 19th day of October, 2004 in its appellate section”
I pause here to say that the issue of whether a single Judge can entertain an application such as the one under consideration was never raised at all during the hearing of the application in the lower court. The question to be asked at this stage is, can it be raised at this stage without leave sought and obtained by the appellant?
In the case of First Bank of Nigeria Plc. v. Akparabong Community Bank Ltd (2) United Bank for Africa (supra) at p. 475, this court per Omokri, J.C.A. held thus:
“Parties are bound by the case they put forward to the court. Therefore, in an appeal, parties are normally confined to their case as pleaded in the court of first instance. Also in the case of Gabriel v The State (Supra) the apex court held that the appeal court will not entertain a new issue not raised in the trial court except question of law or constitution and only with the leave of court (underlining is mine for emphasis). See Oredoyin v. Arowolo (1989) 3 S.C. 219; Shonekan v. Smith (1994) NMLR. p.59”
Learned counsel for the appellant made heavy weather of the fact that the issue canvassed on ground 3 of the notice of appeal, being a jurisdictional issue based all the provision of the constitution can be raised at any time even on appeal. With due respect to the learned counsel, though an issue of jurisdiction can be raised at anytime even on appeal leave to do so must be sought and obtained. In the case of Omakhafe v. Esekhomo supra, the apex court dismissed a preliminary objection because the applicant raised it for the first time in that court without seeking leave to do so.
In sum, in the light of all that I have said, the preliminary objection raised by the respondent is meritorious and must be and it is hereby upheld. Ground 3 of the ground of appeal and issue No. 2 distilled there from as formulated by counsel for the appellant are hereby struck out for being incompetent.
I now proceed to consider the arguments canvassed by the learned counsel for the respondent in respect of the 1st issue he formulated which to a large extent is similar to the issue No. 1 formulated by counsel for the appellant.
It is the submission of the learned counsel for the respondent that, despite the existence of exhibit A (notice of appeal) which raises arguable and substantial grounds of appeal, the appellant as respondent was taking steps which could undermine the pending appeal and render it otiose. He referred us to the case of Opobiyi v. Muniru (2005) 15 NWLR (Pt. 948) 320 at p. 332.
Learned counsel referred to some exhibits and argued that, the fact that the applicant was remanded in prison custody in order to compel him to consent to execution as deposed in paragraphs 4 – 8 of the further affidavit in support, a case to make an order of injunction has been made out by the respondent. He relied on the cases of Animashaun & Another v. Governor of Lagos State and Ors. (2002) 16 NWLR (Pt. 793) 282; Faloma v. Banigbe (1998) 6 SCNJ 42; (1998) 7 NWLR (Pt.559) 679 and ACB Ltd v. A. O. Awogboro and Anor. (1991) 2 NWLR (Pt. 176) 711 at 779.
It is the submission of the learned counsel that, the strenuous submission of the appellant that the “Res” was not the subject matter before the High Court of Justice, Ilorin in its judgment of 19th October, 2004 cannot be correct. To accept this argument will be placing an extremely restrictive interpretation on the said judgment. Referring to the finding of the lower court, where it was held that there is Res to be preserved, learned counsel urged us to uphold that finding and reject the submission of the appellant’s counsel on this point.
Learned counsel argued that the respondent’s application which found favour with the court below was for injunction pending appeal and never stay of execution. Learned counsel further argued that the authorities of Albion Construction Ltd. v. Rad Inv. Properties Ltd. and Tukur v. Gongola State (supra) are unavailing to the case of the appellant. He urged us to resolve this issue in his favour and dismiss the grounds of appeal on which the issue is predicated.
In his reply brief, learned counsel maintained that there was in fact no ‘Res’ on which the lower court granted an injunction to restrain pending appeal. The respondent’s case before the Upper Area Court was basically to set aside the consent judgment dated 24th July, 2001 on the grounds of misrepresentation and mistake of facts. Learned counsel argued that the lower court made out a ‘Res’ for the respondent. This, he urged the court should not be allowed to stand.
Now, from the affidavit evidence as well as the submissions of learned counsel for and against the application, the pertinent questions that are calling for our answers are as follows:
(1) is the judgment of the Upper Area Court, Ilorin of 24/07/2001, a declaratory judgment.
(2) if the answer to the above question is in the negative, call the judgment of the lower court be stayed pending the determination of the appeal filed by the applicant/respondent?
In the case of Gongola State v. Tukur (Supra), the apex court defined a Declaratory Judgment as follows:
“A declaration simpliciter is a solemn affirmation of a state or status by a court. That in itself is a complete relief which is not executory. All order has to he executory before its anticipated execution can be stayed. A declaration that the trial court had no jurisdiction cannot be stayed on any supposed “good and arguable point or points of law” or on any supposed “exceptional circumstances.”
A declaratory judgment is complete in itself since the relief is the declaration. See the case of Akunnia v. A.-G., Anambra State (1977) 5 SC. 161 at 171.
It is appropriate at this stage to produce the judgment of the Upper Area Court of 27/7/2001 with a view to finding out whether same is declaratory or possessary. In view of the fact that the judgment is a one page judgment, I decided to reproduce it in full and it reads thus:
“IN THE UPPER AREA COURT OF KWARA STATE OF NIGERIA
“IN THE UPPER AREA COURT OF ILORIN
HOLDEN AT ILORIN.
Case No: CVF/78M/93
Parties: YAKUBU IYANDA Plaintiff/Applicant
v.
MALI SAIDU AMORI & 10 ORS Defendant/Respondent
Cause of Action: Motion on Notice.
Judgment: Since the main defendant whose tenants the respondents are, has concede the title of the subject-matter of the dispute to the plaintiff we enter judgment for the plaintiff and order as follows:
(1) The plaintiff/applicant is granted leave to take possession of the subject matter of the dispute which he has been adjudged as the rightful owner by the High Court of Justice, Ilorin in Suit No. KWS/38A/84 dated 24/5/85 affirmed by the Court of Appeal, Kaduna in Suit No. CA/K/71/78 date 19/4/93.
(2) The defendant/respondent, their servant agents, privies, personnel representatives, defendants or any person(s) however are hereby evicted or ejected from the plaintiff/applicant’s land situate, lying and being at Oloje, Ilorin, kwara State forthwith.
(3) The defendant/respondents, their servants, agents, privies, defendants, personal representatives or any perso(s) however are hereby ordered to remove all their corporal items, structures, building or kiosk or any property of whatever description from the plaintiffs land situate, lying and being at Oloye, Ilorin, Kwara State based on the judgment of the High Court of Justice, Ilorin in its appellate section in suit No. KWS/38A/84 dated 24th May, 1985 and affirmed by the Court of Appeal, Kaduna in suit No. CA/K/71/87 dated 19/4/1993.
Any dissatisfied party has a right of appeal to the High Court, appellate division within 30 days”
Signed.
The above judgment is self explanatory and I hasten to say that it is not a declaratory judgment. Far from it. The judgment as found by the Kwara State High Court is possessary in that, it grants possessary rights to the respondent over the disputed land.
The next question calling for an answer as earlier posed a while ago is this, can it be stayed? In the case of Nigerian Bottling Company Plc and Others v. Alhaji v. D. A. Buraimoh (2006) 6 NWLR (Pt. 976) p. 401, this court held thus:
“The principle behind stay of execution of a judgment lies in recognition of the court’s duty to preserve the subject matter (res) of the action and thereby ensure that the appeal is not otherwise rendered nugatory if it is successful”
See the case of El-Khalil v. Oredein (1985) 3 NWLR (Pt. 12) 371.”
It has been held in a number of decided cases that, in an application for stay of execution of a judgment, the court has to weigh the competing interest of the parties, always hearing in mind as the first principle the right of the successful party in the suit to reap the fruits of his judgment. Therefore, an applicant must disclose exceptional or special circumstance to deprive the successful party of the fruits of his judgment. The special and exceptional circumstances depend on the facts of each case. [Vaswani Trading Co. v. Savalakh Co. (1972) 12 SC 77 referred to] (P. 401, Paras E – F).
The next point for consideration is whether the applicant has made a case for stay of execution of the judgment under consideration. In his further supporting affidavit, the applicant at the lower court deposed as follows:
“4. That I know as a fact that the respondent, Yakubu Iyanda, is bent on demolishing the applicant’s buildings and other structures belonging to the members of the applicant’s family on the land in dispute.
- That I know as a fact that on 9/12/2004 the applicant was arrested by the police at the instigation of the respondent and taken before the Upper Area Court 1, Ilorin.
- That the Upper Court 1, Ilorin ordered the applicant to be remanded at the Federal Prison, Ilorin on the 9/12/2004 until when the applicant would willingly give his consent allowing the respondent to pull down or demolish the buildings and other structures on the land in dispute.
- That I know as a fact that the applicant is presently in detention at the Federal Prison, Ilorin and all efforts to make the Upper Area Court 1, Ilorin to order his release have been abortive.
- That I know as a fact that Femi Makinde & Co., the Law office representating the applicant had on the 28/12/2004 written a letter to the Director of Area Courts, Kwara State Judiciary, Ilorin on the issue without any positive response. A copy of the said letter (sic) 28/12/2004 is hereby attached and marked exhibit “AA”.
It is to be observed that weighty as the averments are, the respondent had neither denied nor controverted them. Learned counsel for the respondent strenuously submitted that the applicant did not appeal against the decision of the Upper Area Court of 24/07/2001 but filed a new action to set it aside instead, hence is not entitled to stay of execution. With due respect to the learned counsel, the issue of whether or not the appeal of the applicant will succeed is neither here nor there at this stage. All what the law requires at this stage of the case is whether or not a valid notice of appeal has been validly filed; that the grounds contained therein are arguable and the action of the respondent if not stayed is capable of rendering the appeal nugatory or useless if same succeeds.
A dispassionate consideration of the affidavit evidence placed before us will reveal the fact that the respondent, in exercise of his Constitutional right of appeal, has filed an appeal against the decision of the appellate session of the Kwara State High Court. The notice of appeal is exhibit A and could be found at pages 5 – 7 of the record. Despite the existence of exhibit A (notice of appeal) which raises arguable and substantial grounds of appeal, the appellant as respondent was taking steps which could undermine the pending appeal and render same nugatory.
In the light of all that I have said, the learned trial Judge was right when he held thus:
“I have carefully considered the totality of the facts of this case, I am of the considered opinion that the applicant’s application substantially complied with the aforesaid principle guiding the grant of injunction pending appeal.
I find merit ill the application.
It is and (sic) hereby granted us prayed”
This issue is resolved in favour of the Respondent.
The appeal lacks merit and same must be and it is hereby dismissed, I award N10,000.00 costs in favour of the respondent and against the appellant.
Other Citations: (2006)LCN/2057(CA)
